New York Times legal writer Linda Greenhouse recently presented her take on two cases before the Supreme Court. (I ran into it via an approving comment by Isaac Chotiner at The New Republic.) In this post, I’ll examine what she says about the Little Sisters of the Poor case. The nuns are apparently exhibiting “sustained aggressiveness” in asserting “a claim by religion for primacy in the public square.” She says that the Obama administration is not actually imposing any burden on the nuns’ consciences, and so she can’t understand why “the Supreme Court—all nine justices—appears to have fallen for [the nuns’ narrative of the case] hook, line and sinker.” Perhaps the answer has to do with the justices’ comprehension of facts that Greenhouse gets badly wrong.
Greenhouse simply misstates what the administration is doing. She writes:
There is no chance — none — that the Little Sisters will ever have to have anything whatsoever to do with birth control. All the government is asking the order to do is sign the standard one-page form that sets the exemption machinery in motion. Here is the language:
“I certify that, on account, of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.”
That’s it. There is no government investigation of the merits of the religious claim — or of the unfounded belief that some of the contraceptives to which the nuns object can actually terminate what the medical profession regards as an existing pregnancy.
No, that is not “it.” The form has two pages, not one, and it’s the language on the other page to which the nuns object. Page 2 declares that the form is the “instrument” that triggers the requirement that a third-party administrator provide contraceptive coverage. The nuns don’t want to take any action that (they believe) involves them in facilitating immoral acts, which includes causing other people to perform immoral acts. Signing the form would (in their view) do that. Note, by the way, that houses of worship, which are truly exempt from the administration’s contraceptive mandate, do not have to sign any such form to get that exemption. That fact makes a hash both of Greenhouse’s claim that the Little Sisters of the Poor are “exempt from the mandate” and her (and the administration’s) claim that certification is the only way to prevent the exemption process from sliding into “chaos.”
Greenhouse’s claim about the nuns’ “unfounded belief” is also wrong. First of all, their belief isn’t that some contraceptives “can actually terminate what the medical profession regards as an existing pregnancy.” People who actually object to abortion object to it because we believe it unjustly ends the life of a living human organism, not because it ends a “pregnancy.” Thus we object to the killing of a human embryo even prior to implantation and thus prior to the beginning of “what the medical profession regards as an existing pregnancy.” Whether some contraceptives can sometimes act to prevent implantation is the subject of debate. The belief that they can is by no means “unfounded.” A reasonable person who objects to killing human embryos in this way may object to being made a party, even indirectly, to such a possibility. And in any case it is not the government’s place to judge whether a religious group is weighing moral concerns properly.
The justices issued an injunction that allows the Little Sisters to inform the Secretary of Health and Human Services in writing — but without using the certification form — that they will not cover the mandated services because they are a religious organization that holds religious objections to them. Greenhouse writes:
The court said it was issuing the ruling “based on all of the circumstances of the case.”
Nearly two weeks later, I remain baffled. What circumstances? What part of the government’s argument did the justices not understand—or believe? What story are the justices telling themselves?
Her confusion, charitably assuming that’s what it is, stems from her inability to see what the justices evidently grasped: The form the Little Sisters were being asked to sign did not merely state that they were not covering contraceptives but required other people to do so. Greenhouse continues in this vein:
On the facts of this case, the refusal to sign the form is so far-fetched that this concocted controversy can only be understood in the context of high-stakes politics. The dozens of pending challenges to the contraception mandate are not popping up randomly or by accident. This is a deadly serious and sophisticated campaign, a claim by religion for primacy in the public square. The Rehnquist court for years appeared receptive, but ultimately blinked. The church plays a long game.
Greenhouse’s evaluative terms — “far-fetched,” “concocted” — again reflect her inability to see (or unwillingness to state accurately) the facts of the case. I’m certainly prepared to believe that all nine justices could get something wrong (and that a majority of justices could get this very case wrong in the end). But it’s also possible that Greenhouse is way out in left field here. The last sentence of the passage — “the church,” indeed — may reveal more about Greenhouse’s view of the world than she realizes.
Greenhouse closes by saying that the resolution of the case “will tell us whether the Supreme Court, captivated by the nuns’ narrative, merely stumbled into the role of enabling a school-yard bully.” Here clarity has entirely abandoned Greenhouse, as it is not clear whom she means to cast as the “school-yard bully.” The Little Sisters? “The church”? But in any case, what the Little Sisters are asking for is not “primacy,” etc., but the right to keep doing what they have been doing. The coercive party here, the bully, is the federal government. And Linda Greenhouse is its enabler.