During his Senate confirmation hearing on Wednesday, President Joe Biden’s nominee for health and human services secretary, Xavier Becerra—the attorney general of California since 2017—claimed that he “never sued any nuns” in response to a question about litigation against the Little Sisters of the Poor. Becerra further claimed that the lawsuit in question was filed against the federal government “because they have been trying to do things that are contrary to the law in California.”
At the hearing, Sen. John Thune posed the following question to Becerra:
“It does seem like, as attorney general, you spent an inordinate amount of time and effort suing pro-life organizations, like Little Sisters of the Poor, or trying to ease restrictions or expand abortion. You’re going to have a big job as secretary of Health and Human Services, if confirmed. So how do you assure us, that—because I think the majority of American people would not want their secretary of health and human services focused or fixated on expanding abortion when we’ve got all these public health issues to deal with. So how do you assure us that that’s not going to be something that continues over from your time as attorney general?”
In response, Becerra stated:
“Senator, thank you very much for giving me a chance to answer the question. And here, I think I tried to say to Sen. Grassley, I understand that Americans have different, deeply held beliefs on this particular issue and I absolutely respect that. By the way, I have never sued any nuns. I have taken on the federal government, but I’ve never sued any affiliation of nuns, and my actions have always been directed at the federal agencies because they have been trying to do things that are contrary to the law in California.”
After years of litigation during the Obama administration, in October 2017, the Department of Health and Human Services and the Department of Treasury under the Trump administration issued an exemption from contraceptive coverage for religious employers providing health insurance to employees.
After the Trump administration issued this new exemption, the attorneys general of five states, including California, sued, alleging that the exemption violated the Administrative Procedure Act, the Establishment Clause, and the Equal Protection Clause. The suit was filed on November 1, 2017, and on November 21, the Little Sisters of the Poor filed a motion to join the case as an intervenor. Intervenors are parties who are not included in the original suit but will be directly affected by the outcome of the case. In this case, the Little Sisters of the Poor were allowed to join the side of the government because Becerra asked the court to enjoin the government from exempting employers like theirs and would have forced the Little Sisters, as they put it, “to choose between violating their faith and paying crippling fines.” Following the Little Sisters joining as intervenors, the case name became California v. Little Sisters of the Poor. Regardless of their status as a party to the lawsuit, if Becerra had won his case, the government would have been restrained from acting but employers like the Little Sisters are the ones who would have been on the hook for paying the fines.
When asked for comment, the California attorney general’s office shared a statement with The Dispatch Fact Check, saying: “When the Trump Administration issued two rules that allowed employers and insurers to deny women and families coverage, it created a gap in coverage for Californians. By HHS’s own assessment, up to 130,000 women would lose coverage as a result. In California v. Azar [the original case name of California v. Little Sisters of the Poor], the Attorney General sued the Trump Administration over these rules to defend the Affordable Care Act’s contraceptive coverage mandate and Californians’ coverage.” The statement further claimed that “The Trump Birth Control Rules did not affect the Little Sisters of the Poor, who (1) were exempt from the rules because they are a self-insured church plan (as they’ve confirmed in court); and (2) since 2018, the Little Sisters had a permanent injunction from the birth control accommodation.”
Becerra’s former office is correct on their first point but it doesn’t actually provide any support for Becerra’s claim that he was suing the federal government “because they have been trying to do things that are contrary to the law in California.” The lawsuit states explicitly that Becerra and the other attorneys general believed “the regulations violate the Administrative Procedure Act (APA), the Establishment Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment.” No mention of California law made is made beyond California’s Contraceptive Equity Act, which the complaint openly states “only applies to state-regulated health plans” and doesn’t apply “to self-funded health plans, through which 61 percent of covered workers are insured.” The complaint doesn’t allege that the exemption breaks this law, only that those under self-funded plans “[will] not receive the benefit” of the act.
As Becerra and the other attorneys general said in their legal briefs, the Trump contraception mandate exemption did require California to “absorb the financial and administrative burden of ensuring access to contraceptive coverage.” But that doesn’t mean that the Trump exemption violated California law or was in conflict with it. Nowhere do they argue—in their legal briefs or their statement here—that the Trump exemption would have forced them to violate California law. This was a case about whether California would have to pay more money, not about whether the Trump administration exemption was contrary to the state’s laws.
The second point made by the attorney general’s office is about whether the Little Sisters of the Poor would have been directly affected by the outcome of California v. Little Sisters of the Poor.
First, they argue that the Little Sisters wouldn’t have owed any fines regardless because they could submit an opt-on form that would have allowed them not to provide such coverage to their employees. Chief Justice Roberts asked Paul Clement, who represented the Little Sisters, about this point during argument time for Little Sisters of the Poor v. Pennsylvania. Clement argued that even though the Little Sisters could not be fined for refusing to provide contraceptive coverage if they filled out the opt-out form, by doing so they were still being forced to violate their religious beliefs because the form then triggered the government to provide such coverage directly, thus making the Little Sisters active participants in the provision of contraceptives. Choosing to follow their conscience and not submitting the opt-out forms would result in fines of $100 for every day of noncompliance. In his concurring opinion, Justice Alito agreed, writing that “the accommodation demanded that parties like the Little Sisters engage in conduct that was a necessary cause of the ultimate conduct to which they had strong religious objections.”
Second, the attorney general’s office is correct that a district judge in Colorado issued a permanent injunction. But the injunction applied only to the Little Sisters’ current health plans, leaving open the possibility the Little Sisters would be forced to comply with contraceptive coverage requirements if they ever changed health care providers or plans. And if Becerra had won his case at the Supreme Court, that permanent injunction would have been in jeopardy as well. In fact, the court addressed this issue in a footnote in the opinion for Little Sisters of the Poor v. Pennsylvania in which it found that the Little Sisters did have a potential injury.
California v. Little Sisters of the Poor is currently pending at the 9th Circuit to determine whether the Trump administration followed the correct process before issuing the exemption.
While Becerra technically may not have “sued any nuns” while attorney general, the result he sought in California v. Little Sisters of the Poor would have targeted employers who refused to provide contraceptive coverage to employees on religious grounds and forced them to pay fines if they chose not to do so. As Sen. Ben Sasse pointed out during Becerra’s confirmation hearing, while Becerra and his fellow attorneys general filed the suit against the federal government, the case had direct bearing on the ability of the Little Sisters of the Poor and other similar groups to function in accordance with their religious beliefs and remain financially solvent.
Becerra is even more flagrantly incorrect to claim that the case was about the federal government acting contrary to California law: Such rationale was never given when he initiated the suit and there is no apparent contradiction between the decision to create a religious exemption and California’s own laws on the matter.
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