A court win, win, win for Little Sisters of Poor

To the editor:

In his oped column of last month "Court punts away a critical ACA decision," Robert F. Jakubowicz accurately laid out the facts in Zubik vs. Burnell, better known as The Little Sisters of the Poor v. the Obamacare contraception mandate. But I do not agree that the Supreme Court "punted." I contend that it was a victory for the Little Sisters and by extension religious liberty.

It is always better to win a case on the merits, but the Supreme Court's judgment was far more favorable to the Little Sisters than to the government, and significantly better for them than the 4-to-4 tie Mr. Jakubowicz contends that the Supreme Court wanted to avoid. A tie would have let stand lower court rulings, most all of which were against the Little Sisters.

So what did the Supreme Court do and why are the Little Sisters delighted? First, the Supreme Court vacated the lower courts' ruling that the Little Sisters had to facilitate access to contraception as well as the ruling that denied that the mandate hindered their religious practices. Whenever a court vacates a ruling that you are challenging, that's a win. Chalk one up for the Little Sisters.

Second, the Supreme Court went on to provide a template for possible resolution. This "accommodation" passed unanimously by the court which was enthusiastically endorsed by the Little Sisters and which the administration reluctantly agreed to rules that the health insurance plan provided for by the Little Sisters need not include contraception coverage. This eliminates the need for the Little Sisters to file any notice with the insurance company, this being the portion of the Obama compromise they objected to.


The insurance company, without having to receive notice, will at its own expense provide contraception coverage, thus freeing the Little Sisters from having to provide a policy explicitly offering contraception, from having to submit a notice of non-provision to the insurers, and from having to pay for the contraception. Again, it sounds like a win, win, win for the Little Sisters.

Of course, the government could wait until the results of the presidential election and once again pursue its original claim before the court in the hope that it would be successful. But how confident can it be that the Supreme Court would look favorably on not having its "accommodation" pursued? And re-litigation could be a public relations nightmare for the Department of Justice. Does anyone really want to sue an organization called the Little Sisters of the Poor?

I can hear the discussion around the dinner table now. "Joe, I read in the paper today that the government is suing the nuns again."

Laszlo Melchiori, North Adams