The Persecution of the Little Sisters of the Poor

National Review Online

Monday, August 18, 2025

 

There are times when it is perfectly acceptable to judge a book by its cover, and, in the case of the Democratic Party’s relentless persecution of the Little Sisters of the Poor, observers would be well within their rights to indulge the urge. For twelve years now, the Catholic order of nuns — whose sole purpose is to provide care to destitute elderly people — has been dragged through America’s courts by a series of monomaniacal ideologues. The nuns’ crime? Objecting to a provision in Obamacare that required nonprofits to provide contraceptives — directly or indirectly — as part of their federally approved health insurance plans. The position of the nuns was that any participation in the distribution of contraception represented a grave violation of their religious beliefs and that, under the Religious Freedom Restoration Act of 1993, the federal government was obliged to find another means of achieving the same end. The position of the Obama administration was that it had “compelling health and gender equity goals” to achieve, and that it didn’t care who was cast aside in that pursuit. In a country founded by dissenters, this position was jarring in the extreme.

 

Ultimately, the Obama administration lost its case — although it took until the end of Donald Trump’s first term for the Little Sisters to prevail. By that point, litigation on the matter had been ongoing since 2013 and, at various points, had been addressed by the Supreme Court — which punted it back down to the lower courts; by the Third and Ninth Circuits — both of which, astonishingly, prevented the Trump administration from providing an exemption; and by a host of states — some of which, disgracefully, chose to channel President Obama’s illiberalism and continue to press the issue. Happily, in July 2020, the Supreme Court finally permitted the Trump administration’s accommodation to take force. The case, Little Sisters v. Pennsylvania, was decided 7–2.

 

By rights, this should have been the end of the affair. And yet neither of the states that had lost at the Supreme Court — Pennsylvania and New Jersey — was willing to let it go. Worse still, they were joined in the endeavor by California, New York, Massachusetts, and others. Clinging to a tendentious argument that the Supreme Court did not address on the merits, those states insisted that the Trump administration’s modifications had been “arbitrary and capricious” under the Administrative Procedure Act. This month, a district judge in Pennsylvania concurred and struck down the rule. (Because nationwide injunctions are countenanced by the APA, this decision was not foreclosed by the Court’s Casa opinion earlier this year.) Once again — twelve years after their case was opened — the Little Sisters of the Poor were informed that they must choose between their consciences and the law.

 

That this litigation has lasted as long as it has is a problem. Infinitely worse, however, is how many of America’s politicians have worked gleefully to keep the saga going. The legal cases in which the Little Sisters of the Poor have been involved did not spring up unbidden from the earth. Nor are they a permanent or inevitable feature of the landscape. They are a choice. President Obama chose to demand that America’s nuns subordinate their religious beliefs to his social preferences. The leaders of Pennsylvania, New Jersey, and other Democratic states chose to attack the Trump administration’s compromise, long after Barack Obama had left office, and then to keep the effort up despite an emphatic loss at the Supreme Court. That is fanaticism, and, properly understood, it is anathema to the functioning of a pluralist society. Americans will, did, and often should disagree on important political matters. But there is a difference between seeking to win the battle of ideas and gratuitously bayoneting the wounded. Given the instincts of the current Supreme Court, it seems likely that the Little Sisters of the Poor’s most recent loss will eventually be overturned. But the instinct that led to their being pushed into the fight in the first instance will remain. That, ultimately, is a sickness of the heart — and there is no judge in America who can strike it down.