The Washington PostDemocracy Dies in Darkness

The misleading claim that a Democratic candidate ‘sued’ a group of nuns over contraception coverage

State Sen. Doug Mastriano of Pennsylvania, the Republican nominee for governor. (Carolyn Kaster/AP)
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“When the government ensured that the Little Sisters of the Poor wouldn’t have to violate their religious beliefs, my opponent @JoshShapiroPA sued them and forced them to go to the Supreme Court. He lost and proved that he’s too extreme for Pennsylvania.”

— State Sen. Doug Mastriano, GOP candidate for Pennsylvania governor, in a tweet, June 15

Over and over, Doug Mastriano has claimed that his Democratic opponent, Pennsylvania Attorney General Josh Shapiro, sued a group of nuns, aiming to force them to “violate their religious beliefs.”

Catholics make up about one-quarter of Pennsylvania’s population. They traditionally lean toward Democrats, so this attack line is intended to undermine Shapiro’s standing among Catholics.

We previously encountered a similar case involving President Biden’s health and human services secretary, Xavier Becerra. He had been California’s attorney general, and during his confirmation hearings he also was accused of suing the Little Sisters, a charity run by Catholic nuns that serves the elderly poor.

This is a great example of how a complex legal dispute is weaponized, through misleading rhetoric, for political purposes.

The Facts

Ever since passage of the Affordable Care Act in 2010, litigation has ensued over the law’s requirement that employers with more than 50 employees provide a preventive-care package that includes contraceptive coverage.

Agency rulings initially created a three-tier system for religious employers, including a full exemption from the contraceptive mandate for churches and religious orders and an “accommodation” for certain religious nonprofit employers. Under the accommodation, these groups could opt out of purchasing contraceptive coverage by listing an objection with their insurer; workers and dependents would still get coverage, but organizations would not have to pay for it.

Religious for-profit employers initially received no exemption, but the Supreme Court in 2014 ruled that the mandate violated the 1993 Religious Freedom Restoration Act if it was applied against “closely held” corporations such as the craft store Hobby Lobby.

The court did not address at the time whether the RFRA applied to employers, such as the Little Sisters, that were covered by the accommodation — a compromise that still deeply displeased the group as burdensome for their religious rights. Little Sisters officials dismissed the opt-out document as a “permission slip” for forms of birth control that the group found objectionable.

Making matters even more complicated, Little Sisters has a self-insured plan. Under provisions in the Employee Retirement Income Security Act, the federal government, in this instance, cannot enforce the regulations even if the group does not file notice of its objection to the contraception mandate.

By the time the issue reached the Supreme Court in 2016, Justice Antonin Scalia had died and there was no replacement, so the court appeared split 4-4. The court vacated the cases consolidated as Zubik v. Burwell and told the parties to work out a solution “that accommodates petitioners’ religious exercise” by not requiring the notice. “Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice,” the court said.

Then Donald Trump became president. His administration shifted course and made it easier for any entity exercising a religious or moral exemption — even big for-profit corporations — to deny contraceptive coverage. Signifying the politics involved, Trump invited representatives of the Little Sisters to a 2017 signing ceremony for an executive order that called for crafting new regulations.

Pennsylvania and California filed separate lawsuits, challenging the new policy as overly broad and permitting too many exemptions for businesses. “Previously, exceptions to this mandate were extremely narrow,” Shapiro said in announcing the lawsuit. “Now, as a result of these new rules, virtually any employer can refuse to provide coverage for contraceptive services for their employees, who will now have to pay more for health care.”

The Pennsylvania case made it all the way to the Supreme Court, which ruled 7-2 that the Trump administration’s regulations were legally valid, though it left undecided whether the rules were “arbitrary and capricious,” as Pennsylvania (joined by New Jersey) argued. That issue was to be litigated in lower courts.

So how did Little Sisters get involved? They sued to intervene in the case. It’s stated plainly in the group’s brief to the Supreme Court: “Because Pennsylvania sought to invalidate an exemption that the Little Sisters had long pursued and would directly benefit from, they moved to intervene.”

Indeed, the case before the Supreme Court was called Little Sisters of the Poor v. Commonwealth of Pennsylvania.

By the time the Pennsylvania case got to the court, it had gone through many twists and turns. But Shapiro’s office consistently argued that the Little Sisters were unaffected. They “already won an order from the Supreme Court exempting them from the Contraceptive Mandate and immunizing them from any ‘taxes or penalties … for failure to provide the relevant notice,’” his office said in a 2017 court filing.

In 2019, a district judge imposed a preliminary injunction that “will maintain the status quo,” and then a Colorado district court permanently enjoined enforcement of the mandate for the Little Sisters’ health plans. That led an appeals court to dismiss the Little Sisters as “no longer aggrieved” and having no standing to intervene — prompting the group and the Trump administration to appeal to the Supreme Court.

During oral arguments before the Supreme Court, Shapiro’s office insisted it had not targeted the nuns, just the Trump administration.

“To be clear, we brought this suit against the federal government,” Deputy Attorney General Mike Fischer told the court on May 6, 2020. “We have not challenged the Little Sisters. We have not challenged their Colorado injunction. They and all the other parties to Zubik are protected by injunctions and do not have to comply with the contraceptive mandate no matter what happens in this case.”

At another point, Fisher noted: “Your Honor mentioned the Little Sisters. Their insurance carrier stated that it will not provide contraception no matter what. Or their health plan. And because it’s a church plan exempt from ERISA, the government cannot enforce it. So, even if they didn’t have their separate injunction, their employees would not receive contraception. We’re not trying to challenge that at all.”

The majority opinion written by Justice Clarence Thomas, moreover, cast the Little Sisters as the litigant. “For the past seven years, they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs,” he wrote. In a footnote, he said that the appeals court was in “error” for concluding that the Little Sisters lacked standing to sue.

“Pennsylvania did not sue the Little Sisters,” said Douglas Laycock, a University of Virginia law professor and leading authority on the law of religious liberty. Shapiro “sued the federal government, and the Little Sisters intervened.”

“It is also true that the Little Sisters were part of a church plan, that church plans are exempt from much regulation under ERISA (the Employee Retirement Income Security Act, which regulates fringe benefits), and that the government conceded that it could not regulate them,” Laycock added. “Why employers with church plans were allowed to litigate the contraceptive mandate, not just in this case but in lots of other cases, is a mystery that so far as I know the Court never explained.”

We sent a lengthy email laying out our analysis to a spokesman for the Mastriano campaign. The campaign has a reputation for ignoring the media, and we did not get a response.

But Ryan Colby, a spokesman for the Becket Fund for Religious Liberty, which represented the Little Sisters, defended Mastriano’s rhetoric.

“Shapiro filed the lawsuit,” Colby said in a statement. “He sued to take away religious protections given to the Little Sisters of the Poor and others, who were doing critical work caring for the elderly during the pandemic. He even told the courts that it would be unconstitutional to have protections for religious objectors. When the Little Sisters fought to protect their rights, Shapiro didn’t relent. And he is actually still in court trying to take away those protections.”

Colby did not respond to a request for clarification, but the last line was an apparent reference to Shapiro’s office asking a court to stay the pending litigation as the Biden administration works to rewrite the rules yet again.

“Doug Mastriano is known to spend his time rejecting reality and peddling dangerous lies — and this is just the latest example in his track record of doing so,” Shapiro campaign spokesman Manuel Bonder said in a statement. “Pennsylvania needs a Governor who can focus on solving problems and making people’s lives better — not one who constantly puts conspiracy theories before facts.”

The Pinocchio Test

The Little Sisters have been a sympathetic and potent face of opposition to the ACA contraceptive mandate. But by the time Shapiro filed his lawsuit against the expanded exemptions ordered by Trump, the group had basically secured what it desired and was not subject to the mandate. Nevertheless, it sued to intervene, fearing that any rollback of the Trump rules would result in losing its exemption — even though Shapiro said that was not his intention.

The fact remains: The nuns sued to join a case that was aimed at the federal government; Shapiro did not sue the nuns. Mastriano is falsely claiming otherwise. Given that the Little Sisters ended up as a litigant, we can’t quite say this is worthy of Four Pinocchios. But Mastriano earns Three.

Three Pinocchios

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