John Rustin | February 25, 2016 | SHARE: 
This week, NC Family president John Rustin talks with Daniel Blomberg, JD, an attorney with The Beckett Fund for Religious Liberty, about Little Sisters of the Poor v. Burwell—an important religious freedom case before the U.S. Supreme Court—about why this case matters to every person of faith in America.
INTRODUCTION: Daniel Blomberg is legal counsel for The Becket Fund for Religious Liberty, a non-profit, public-interest legal and educational institute whose mission is to protect the free expression of all faiths. Prior to joining The Becket Fund, Daniel clerked for Chief Justice Alice M. Batchfelder of the U.S. Court of Appeals for the Sixth Circuit, and also formerly served as litigation counsel with our friends at Alliance Defending Freedom.
Daniel is attorney for The Becket Fund on a critical religious freedom case that is currently before the U.S. Supreme Court, Little Sisters of the Poor v. Burwell, and oral arguments are scheduled to begin in this case in March. Daniel is with us today to talk about the Little Sisters of the Poor case and why it should matter to every person of faith in America.
JOHN RUSTIN: Daniel, tell us about Little Sisters of the Poor. Who are they, and what community do they serve?
DANIEL BLOMBERG: The Little Sisters of the Poor is a 175-year-old order of nuns that take care of elderly poor people all around the world. They’ve been in the United States for well over 100 years, and they do exactly the same thing here they do everywhere—they take care of those people who can’t take care of themselves, and who nobody else is taking care of. And they do it by things like begging: They go out and they ask folks to provide them the resources that they need. The Little Sisters of the Poor ministry was founded by, literally, a Saint—Saint Jeanne Jugan, who in France noticed an elderly poor woman, shivering on the side of the road, and she brought that woman to her house, gave her her bed, and took care of that woman. And that’s the way the Sisters approach everyone that they serve. One of the things you’ll hear them say consistently is they serve each person as though that person was Jesus Christ themselves.
JOHN RUSTIN: Wow. So, how in the world does an organization like Little Sisters of the Poor, as you said has been around for 175 years serving the elderly poor, how did they get involved in a legal battle that has made it all the way to the U.S. Supreme Court?
DANIEL BLOMBERG: Reluctantly. The Little Sisters tried over and over and over again not to be where they’re at today. The federal government proposed a rule that would require employee-based healthcare to include abortion-inducing drugs and contraceptives. Now, the Little Sisters of the Poor are Catholics, and they don’t think they can be involved in providing those kinds of services. They think that’s wrong for them to do that, which really isn’t a surprise, to anyone whose familiar with Catholic belief. And a lot of other religious believers share very similar beliefs, which is why a lot of non-Catholic Protestant organizations are with the Sisters in front of the U.S. Supreme Court. So, the Sisters went to the government, and they said over and over again, “Please don’t force us to be involved in this.” You know, the federal government has its own programs that it spends hundreds of millions of dollars on every year to give out free contraceptives, and the Sisters didn’t say that the government had to stop doing that. And the government set up its own healthcare exchanges where it can provide healthcare to people all around the country, and the Sisters didn’t say the government couldn’t use those things to give out contraceptives. In fact, they said, “Listen, you can’t force us to do it. That’s a violation of our religious rights, a violation of federal law, but you can do these other things,” which points out a really important part of this case, and that is the Sisters aren’t trying to stop anyone from getting contraceptives. They’re trying to stop the government from forcing them to be involved.
JOHN RUSTIN: So it’s completely a religious-based decision that impacts their ministry and their beliefs as far as how they live those beliefs out in their daily lives, and through the ministry that they’re participating in.
DANIEL BLOMBERG: That’s right.
JOHN RUSTIN: What about the Obamacare mandate in the Affordable Care Act, as I understand it there is a religious exemption for churches and church-affiliated ministries. Why can’t the Little Sisters of the Poor receive an exemption from the government as opposed to the government imposing this contraceptive mandate on the Little Sisters?
DANIEL BLOMBERG: You’re probably going to want to hold on to your hat for this one, but the government said that the Little Sisters of the Poor, an order of nuns that had faithfully following the teachings of the Catholic church for 175 years, are not religious enough to get an exemption. The government says that Bishops and other types of ministries that are closely controlled by churches, those are exempt, but the Little Sisters of the Poor and other kinds of ministries that, for a variety of reasons, both practical and theological, aren’t directly controlled by churches, those ministries have to provide these drugs. And the government was very candid about its rational for it. It said, “Listen, we think that people who work for churches are more likely to share the church’s beliefs, and we think those entities are more religious entities. But you, Little Sisters, you mission agencies and things of that nature, you’re not religious enough,” which should give any reasonable person significant concern that the government’s even walking around in the first place telling people who is religious enough and who is not. And then when you go to the next step, and they’re saying the Little Sisters of the Poor aren’t religious enough, well, that should concern any human being.
JOHN RUSTIN: It’s just amazing. Now the government argues that the Little Sisters can simply opt-out by using the so-called religious “accommodation” it has created. Explain for us if you will, why the Little Sisters say that this opt-out option still essentially requires them to violate their faith?
DANIEL BLOMBERG: For the very simple reason that the federal government has been very clear that they want to use the Little Sisters employer-based healthcare to provide these drugs. Right, there’s not, there’s no option that the government is providing the Sisters that allows them to be treated like churches, which is, “We’re going to leave you alone. We’re going to let you run your ministry the same way you’ve been running it for 175 years, and we’ll go and do our own thing with our own healthcare plan.” No, the federal government insists on using the Little Sisters of the Poor healthcare plan, it insists on forcing the Little Sisters to sign the piece of paper that gives the government permission, gives their healthcare providers permission to take over their plan and use it to deliver abortion drugs. Now listen, the government doesn’t force massive companies like Visa or Chevron, or companies like that, to do this at all. The government has exempted them completely, in fact about one-third of Americans aren’t on healthcare plans that are subject to this Obamacare contraceptive mandate. And so for the government to come around here and say, “Oh, but we need you to do this, and this is just an opt-out,” that’s just not true. It’s a false statement that’s being given by the government. In fact, they’re trying to force the Sisters to take action that violates their faith, actions that they don’t require of churches, or huge businesses like Visa, and they don’t even require of themselves. The Department of Defense provides for the military a type of healthcare called, Tricare, that doesn’t include the mandate that you have to provide every FDA-approved contraceptive abortion-inducing drug. And so the government gives itself a pass, and it gives big businesses like Visa a pass, it gives big municipalities like New York City a pass, but when it comes to Little Sisters of the Poor, it says “You have to knuckle under, you have to obey, or we’ll literally fine you $70 million a year, every year.”
JOHN RUSTIN: Daniel, many people who are not familiar with the Little Sisters case, might be wondering why the Supreme Court’s landmark decision in the Hobby Lobby and the Conestoga Wood case does not apply to the Little Sisters of the Poor and other similarly situated ministries. So the Supreme Court basically says that Hobby Lobby and other closely held businesses don’t have to provide contraceptives, or operate under that contraceptive mandate. What’s the difference?
DANIEL BLOMBERG: Two words, Rube Goldberg [i.e., “a machine or device that is deliberately over-engineered to perform a simple task in a complicated fashion”]. So the government has set up a Rube Goldberg scheme, where it says, “Hey, we’re not making you do the thing that we were forcing Hobby Lobby to do. They have to directly put the drugs on their healthcare plans themselves and pay for themselves. You [Little Sisters] just have to sign a piece of paper that causes the drugs to be on your healthcare plan and we’ll pay for it.” And the Sisters are saying, “It’s not about the money, it’s about the complicity. You’re forcing us to participate in your scheme to deliver these drugs, and we’re an integral part of that, we’re the ones that make this system go, and we can’t do that.” And so the Hobby Lobby decision that the Supreme Court issued does very much help the Little Sisters of the Poor, but the government has argued that they changed the scheme just enough that they should be able to force the nuns to violate their faith, even though they’re not allowed to force business owners to violate their faith.
JOHN RUSTIN: Do you think the Hobby Lobby case is going to be a significant factor, or at least the Supreme Court is going to be looking at their opinion in the Hobby Lobby case to possibly attempt to remain consistent to some degree, or do you think they could go off in a completely different direction considering the facts circumstances of this case?
DANIEL BLOMBERG: Oh, they’ll definitely be looking at the Hobby Lobby case, quite a bit. And part of the reason for that is the government’s arguments here are so very similar. The government in the Hobby Lobby case said, “Listen, you’re not the one who is making anybody use these drugs, right? You provide the healthcare plan, you pay for the drugs, you put the drugs on there, but you don’t know if anybody’s actually gonna use them, so there’s speculation, you don’t know if you’re actually involved in anything bad ever happening.” Well, basically what the government is saying to the Little Sisters, in fact the government has been much more derisive about it, and it said to the courts, “the Sisters are fighting an invisible dragon they can vanquish from their own pen.” Which is just remarkably derisive, but it boils down to the same basic argument that, hey, Sisters, we aren’t asking you to do anything that your faith says you can’t do. And the simple response to that is the same response that came up in the Hobby Lobby Case that the Supreme Court ruled on, which is, “Government Officials don’t get to tell religious people what religious beliefs should be.” Government officials have to respect those beliefs; they don’t get to determine them, or try to manipulate them or change them.
JOHN RUSTIN: Amen. Now Daniel, if the Little Sisters do not comply with the Obamacare mandate, what kinds of fines could they face and what impact would that have on their ability to even continue serving the elderly poor?
DANIEL BLOMBERG: The government has threatened the Little Sisters with fines in the neighborhood of $70 million a year, every year going forward. You don’t have to be a math whiz or a business major to understand that’s a very painful punishment for ministering to elderly poor people according to your faith. And what’s really important here is that there’s a very easy solution, right. Even if you, as many people do, think that the HHS mandate is a great policy matter, you know providing free contraceptives countrywide, that doesn’t mean you have to make the Sisters get involved.
JOHN RUSTIN: Absolutely. Daniel, for those of our listeners who might hear about this case and kind of shrug it off as really only a case that concerns Catholic ministries, how important is the outcome of the Little Sisters case to religious liberty across this country, why should it matter to people of faith, and what’s at stake if the Little Sisters happen to lose this case?
DANIEL BLOMBERG: First it’s just wrong to think it’s just about Catholic ministries. There are dozens of Baptist and Presbyterian and other types of religious ministries in front of the Supreme Court standing side-by-side with the Little Sisters. In fact, there are Jewish organizations and Muslim organizations that filed briefs saying, “It’s wrong what the government is doing to the Little Sisters.” So, just as a factual matter, this isn’t just about Catholic ministries. That should be enough for any of us to care, because we don’t want to see civil rights being crushed for other people. Further, just think about it for a second, if the federal government can come to Little Sisters of the Poor and say, “You’re not religious enough to have your religious beliefs protected, and I’m going to force you to violate a core, fundamental, well-known religious belief, on pain of crushing penalties.” Well, if they can do that to nuns who take care of elderly poor people, they can do almost anything to almost any of us, right? So this gets back to the fundamental basis of religious liberty, and in many ways it gets back to the fundamental basis of civil liberty in our society. If we are the kind of people that will unnecessarily crush the sincere religious beliefs of folks like the Little Sisters of the Poor, we will not respect the civil rights of free speech, for free association, for any number of different types of rights and liberties that we enjoy as a nation. So this is in many ways an acid test of who we are as a people. And so this is something that people need to be paying attention to, they need to care about, they need to educate themselves about, because it will make a big difference on a day-to-day basis for thousands of ministries and millions of people all across our nation.
JOHN RUSTIN: Well said. I couldn’t agree more! Unfortunately, Daniel, we are just about out of time for this week, but I want to give you an opportunity to let our listeners know where they can go to learn more about the Little Sisters of the Poor case and also The Becket Fund for Religious Liberty?
DANIEL BLOMBERG: Please go to The Becket Fund’s website, becketfund.org. You can see right at the top of the website on the left-hand side there’s a little button for the Little Sisters, you can go to a page that tells you all about this case.
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