The Franciscan Alliance might be the new Little Sisters of the Poor.
by The Wall Street Journal Editorial Board, August 25, 2022
The Little Sisters of the Poor were a cause célèbre during President Obama’s tenure, and they’re still in court defending religious exceptions to ObamaCare’s contraceptive mandate. Progressives don’t merely want to win the country’s culture wars. They want to impose a Carthaginian peace.
The latest evidence is a case involving the Franciscan Alliance that was heard a few weeks ago by the Fifth Circuit Court of Appeals. The alliance is a Catholic hospital system, mostly in Indiana, founded by the Sisters of St. Francis of Perpetual Adoration. As the alliance argues in its brief, in 2016 the government interpreted ObamaCare’s nondiscrimination provisions “to require doctors and hospitals nationwide to perform and insure gender-transition procedures and abortions or else be liable for ‘sex’ discrimination.”
Specifically, the feds read the law to require that services be offered on an equal basis. “If a gynecologist performs a hysterectomy for a woman with uterine cancer,” the alliance’s brief says, “she must do the same for a woman who wants to remove a healthy uterus to live as a man.”
The alliance could not comply as a matter of conscience and medical judgment. Neither could members of the Christian Medical and Dental Associations. They sued, citing the Religious Freedom Restoration Act (RFRA) and with help from the Becket Fund for Religious Liberty, which also represented the Little Sisters.
A district court ruled in their favor. After an initial trip to the Fifth Circuit, they also won a permanent injunction. Yet instead of taking the loss, the Biden Administration is now appealing. The government argues that the alliance faces a merely “hypothetical” threat of enforcement, and it argues that RFRA claims must be evaluated case by case. But if religious doctors can’t raise a RFRA shield pre-emptively, they’ll practice under a constant government threat.
A better question is why the Biden Administration decided to appeal. The government argues that it hasn’t tried to enforce the rule against “any religious entity.” Yet this month during oral argument at the Fifth Circuit, a judge asked if the feds “could promise that plaintiffs would not face prosecution or an enforcement action for refusing to offer gender reassignment surgeries or abortion.”
The response from the government’s lawyer? “The answer is no,” since any enforcement decision would depend on “a concrete factual context.” To repeat that, the Biden Administration reserves a right to punish religious doctors and hospitals for sex discrimination if they refuse to do abortions or transgender surgeries. Private plaintiffs also might sue. The alliance cites a case brought in federal court after “a Catholic employer’s insurance plan declined to pay for a mastectomy and chest-reconstruction surgery on a 13-year-old girl.”
This cultural clash isn’t going away, and the country is in for more trouble if progressives can’t rediscover the principle of pluralism. The government’s appeal shows a bloody-mindedness that is difficult to fathom. A second pending case, similar but in the Eighth Circuit, involves the Religious Sisters of Mercy, who run a nonprofit clinic in Michigan.
The government spent years trying to shove birth control into the health plans of the Little Sisters, so perhaps no one should be surprised that it’s fighting exemptions for the Franciscan Alliance and the Sisters of Mercy. But seriously, why not leave the nuns alone? We’d love to hear the Catholic President Biden’s answer.