“By the way, I have never sued the nun — any nuns. I have taken on the federal government, but I’ve never sued any affiliation of nuns. And my actions have always been directed at the federal agencies, because they have been trying to do things that are contrary to the law in California.”
— Becerra, at the confirmation hearing
Becerra was often in court with former president Donald Trump’s administration, filing numerous lawsuits as attorney general of California that won the backing of other Democratic states.
Now he’s up for the top health position in President Biden’s Cabinet, and Republican senators want to know why he supposedly sued a group of nuns back in the day.
In hearings on Becerra’s nomination to be secretary of the Department of Health and Human Services, Thune and others brought up a case involving California, contraceptives and a group of Catholic nuns.
It’s misleading to say Becerra sued the nuns. The California attorney general has not filed lawsuits or brought enforcement actions against the Little Sisters of the Poor, a charity run by Catholic nuns.
The two sides are in court for a different reason. California is suing the federal government, challenging a Trump administration policy that exempts some employers from providing contraceptive coverage under the Affordable Care Act. The Little Sisters of the Poor voluntarily joined that case, taking the Trump administration’s position that the exemptions were legally valid.
The charitable organization was not sued or legally compelled by the California attorney general’s office to participate in the case. The group decided to join the litigation after it began, and a court granted permission.
But it took a while to unwind what’s happening here, which is why we thought readers might like an explanation.
In May 2017, Trump signed an executive order calling for new regulations to address “conscience-based objections” to the Affordable Care Act’s requirement that insurance plans provide contraceptive coverage. The ACA’s “contraceptive mandate” has long been a target of religious and conservative groups, who say it offends religious liberty to require by law that employers provide contraceptives for employees.
In October 2017, the Department of Health and Human Services, and the Labor and Treasury departments, came out with new regulations that provided an exemption from the ACA’s contraceptive mandate to entities “with sincerely held religious beliefs objecting to contraceptive or sterilization coverage” or “sincerely held moral convictions concerning contraceptive coverage.”
California, Delaware, Maryland, New York and Virginia sued the three Cabinet agencies and their secretaries, seeking to block Trump’s new rules from taking effect and alleging they were invalid under a federal law called the Administrative Procedure Act.
A judge then issued a preliminary injunction, temporarily blocking the rules from taking effect while the case played out in the legal system. After issuing the injunction, the court allowed Little Sisters of the Poor (Jeanne Jugan Residence) and the March for Life Education and Defense Fund to intervene in the case, according to the U.S. Court of Appeals for the 9th Circuit.
Other states and the District of Columbia then joined the litigation. A parallel case involving the Little Sisters of the Poor and Pennsylvania ended up before the Supreme Court, which ruled 7 to 2 that the Trump administration’s regulations were legally valid. The court did not rule on a similar case involving the Little Sisters of the Poor and California, though it returned that case to a lower court with instructions to follow the Pennsylvania ruling.
California is suing HHS, Labor and Treasury, but in legal documents this case is captioned State of California v. Little Sisters of the Poor, an abbreviation that may lead casual observers to think that Becerra sued the nuns and not the federal government. (As this decision from the 9th Circuit makes clear throughout, California sued the Trump administration, not the nuns.)
“The only entity that Attorney General Becerra sued in this case was the federal government,” said Andrew Bates, a spokesman for the Biden-Harris transition managing Becerra’s nomination.
A spokesperson for the California Department of Justice said the Little Sisters of the Poor voluntarily intervened in the case; were covered by an exemption and not required to provide contraceptives anyway; and had secured a permanent injunction from another court by the time of this litigation, doubly ensuring they would not be required to provide contraceptive coverage.
“In October of 2017, California sued the Trump Administration to defend the Affordable Care Act's contraceptive coverage mandate, which provides women cost-free coverage for contraceptives, against two Trump-era rules that allowed employers to deny coverage to up to 130,000 women,” the California DOJ spokesperson said. “A month later, the Little Sisters of the Poor voluntarily intervened in the case as a non-essential party, despite the fact that they were exempt from the rules and had a permanent injunction from the birth control accommodation. California's legal action was taken against the Trump Administration, not the intervenors.”
Others say Becerra’s actions, if only by suing the federal government, were tantamount to suing the Little Sisters of the Poor. The Trump administration issued the new rules to benefit groups such as the Little Sisters, they say, so any lawsuit that targeted the rules targeted these groups.
“Becerra sued to take away religious protections given to the Little Sisters of the Poor and others, who are doing critical work caring for the elderly during the pandemic,” said Ryan Colby, a spokesman for the Becket Fund for Religious Liberty, which represented the Little Sisters of the Poor. “When the Little Sisters fought to protect their rights, Becerra didn’t relent and took the case all the way to the Supreme Court.”
(California filed a legal brief opposing Supreme Court review of the case, after winning in lower courts against the Trump administration and its supporters.)
Michelle Banker, director of reproductive rights and health litigation at the National Women’s Law Center, said it’s incorrect to say Becerra sued the Little Sisters of the Poor. Banker’s group filed an amicus brief in the case, supporting the states’ position that Trump’s contraception rules were invalid.
“Attorney General Becerra did not sue the Little Sisters of the Poor,” Banker said. “They voluntarily intervened in a lawsuit that Becerra brought to the Trump administration rules. By the way, this was a totally appropriate action by the attorney general. Justice [Ruth Bader] Ginsburg pointed out [in a dissent] that by the government’s own estimates, more than 2.9 million Americans, including approximately 580,000 women of childbearing age, receive insurance through organizations that would be newly eligible for this exemption.”
A spokesperson for Thune said the California case against Trump “was filed to challenge protections for religious organizations the Little Sisters of the Poor had been instrumental in securing, and after the Little Sisters of the Poor was named in the suit, Mr. Becerra pursued the case for an additional three years.”
“So, yes, Senator Thune does believe it’s fair to say that Mr. Becerra has sued them — he has certainly been engaged in protracted litigation against them and the interests of those seeking to comply with their religious obligations,” the Thune representative said.
Other Republicans at Becerra’s hearings, such as Sen. Ben Sasse (Neb.), had tough questions about this case but were more careful not to suggest Becerra sued any nuns.
“Mr. Becerra, you said a little while ago that you never sued the nuns, which is a pretty interesting way of reframing your bullying,” Sasse said. “You actually sued the federal government who had given an exception to the nuns. … You know well that what the federal government did was make sure that you couldn't target the nuns, so you sued the federal government because the federal government said the nuns didn't have to buy contraceptive insurance.”
The Bottom Line
Becerra did not sue the Little Sisters of the Poor as attorney general. California and other states sued the Trump administration to block regulatory moves that they argued were an attack on the ACA’s contraceptive mandate. The Little Sisters of the Poor intervened on its own initiative in that court battle, taking Trump’s side. For these reasons, it’s misleading to say Becerra sued the nuns.
However, the Little Sisters are a litigant in the case, recognized by the courts as having a stake in the outcome and standing to participate in the proceedings. The Little Sisters and Becerra have been arguing on opposing sides, even if the attorney general did not sue the nuns.
These legal complexities make it difficult to assign a Pinocchio rating. Suffice it to say there’s a difference between suing nuns and suing the federal government in a case that nuns decide to join.
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