Hiltzik: Becerra, the nuns and a GOP lie

With nothing substantial to use to derail the appointment of California Atty. Gen. Xavier Becerra as secretary of Health and Human Services, congressional Republicans have resorted to a bald-faced lie.

The lie is that Becerra sued an order of elderly nuns to force them to pay for contraceptive coverage.

Senate Minority Leader Mitch McConnell, R-Ky., spoke the lie in its most undistilled form from the Senate floor last week.

Becerra, he said, “used his taxpayer-funded office to sue Catholic nuns who didn’t want government forcing them to violate their beliefs.”

This is part of the GOP’s fatuous attempt to paint Becerra as a radical pro-abortionist, which we examined earlier.

We can understand the appeal of the nun story for Republicans: “Becerra sued nuns” has the pizazz to grip the attention of the less attentive members of the GOP’s base, and even to warrant a headline in the right-wing National Review.

At Becerra’s confirmation hearing Wednesday before the Senate Finance Committee, Republicans flogged the story hard. The issue concerned litigation involving the Little Sisters of the Poor, an order of elderly nuns.

“Mr. Becerra, you said a little while ago that you never sued the nuns, which is a pretty interesting way of reframing your bullying,” said Sen. Ben Sasse, R-Neb., who has an entirely undeserved reputation for being an intelligent and responsible conservative Republican. “Can you explain to us what the Little Sisters of the Poor were doing wrong?”

Becerra explained that the lawsuit in question was one that California (and several other blue states) had filed against the Trump administration to block its expansion of exemptions from an Affordable Care Act rule requiring health plans to provide contraceptives without co-pays.

Trump had expanded the exemption to cover not only bona-fide religious institutions with objections to contraception, but any employer asserting moral scruples. As Becerra pointed out, the Trump action threatened to deprive millions of women nationwide of a healthcare right that had been written into law.

“We took action against the federal government,” Becerra said, “so California could administer its programs to make sure that the Affordable Care Act continued to work.”

Sasse was having none of it. With a dismissive smirk dialed up to 11, he asked, “What were the nuns doing that made it impossible for California to administer its program? That’s a complete nonsense answer.”

Actually, Becerra’s answer was perfectly cogent. But because it’s hard to get the facts through the head of someone determined not to listen, especially in the heat of a Senate committee hearing, and since I’ve covered this story for more than six years, I’ll explain what really happened.

The case of the Little Sisters of the Poor dates back to 2013. Numerous Catholic institutions objected to the ACA’s contraception mandate, arguing that being forced to pay for procedures or prescriptions that violated their religious precepts violated their rights.

The Obama administration worked out an accommodation. Religious employers with a case against the contraception mandate wouldn’t have to pay for it; contraceptive care would become a responsibility of their insurance carriers, who would cover the contraceptives and bill the federal government.

All the employers had to do was fill out a form stating that they objected, and the government would take care of the rest.

That wasn’t enough for the Little Sisters, who operate a string of nursing homes (including one in San Pedro and another in San Francisco) and employed about 75 people eligible for health insurance under the federal healthcare law.

The order — or the Becket Fund for Religious Liberty, which conducted the ensuing litigation in their name — asserted that even signing the form would be tantamount to their participating in the provision of contraception.

This assertion got as far as the Supreme Court, which ruled in 2014 that religious objectors such as the Little Sisters didn’t have to fill out the approved government form, but merely notify Health and Human Services in writing that they “hold themselves out as religious and have religious objections to providing coverage for contraceptive services.”

The one-page ruling was hailed in some quarters as a victory for the nuns. Others noted, however, that it wasn’t much of a win, since the nuns still had to notify HHS of their position in writing.

“What looks like a victory against having to do a symbolic act may really be a defeat in having to do the nearly identical symbolic act,” observed legal scholar Rick Hasen of UC Irvine.

Now flash forward to 2017. California (with Becerra as AG), along with Delaware, Virginia, Maryland and New York, sued the Trump administration over its expansion of the contraception exemption.

The states asserted that Trump’s action would be costly. Many women who lost coverage because their employers claimed the exemption might resort to state programs to obtain contraceptives, at the states’ expense.

The risks of unintended pregnancies would rise, another burden on state social services. And reduced access to contraceptives would affect women’s prospects for educational attainment and access to work.

A federal district judge and an appeals court panel found these arguments sufficiently persuasive to greenlight the states’ lawsuit, which named only the departments of Labor, HHS and Treasury and their secretaries as defendants.

Then the Little Sisters injected themselves into the case. The order — that is, the Becket Fund — asked for and received the status of “intervenor” — that is, a third party with a direct stake in the outcome.

In other words, Becerra didn’t sue the nuns. It would be more accurate, though not 100% technically correct, to say the nuns sued him.

It’s proper to note that at the time the Little Sisters petitioned to join the lawsuit, they already had won their own case, three years earlier.

They had no real stake in the outcome of the California lawsuit, which made the district judge’s ruling giving them intervenor status a close call, very narrowly granted.

The Supreme Court, by the way, upheld the Trump exemptions last year.

In light of all this, it’s patently obvious that the GOP’s claim about Becerra suing the nuns is a fabrication. It exists wholly to give people like Sasse and McConnell a talking point — never mind that it’s untruthful.

“You say you didn’t sue the nuns — you sued the federal government, that was keeping you from making sure that the nuns had to buy contraceptive insurance,” Sasse said to Becerra. “Were the nuns going to get pregnant?”

It’s hard to do justice to the rank dishonesty in these words of Sasse’s. He disputed Becerra’s truthful statement that he sued not the nuns but the federal government.

“It was just about nuns getting contraceptive coverage,” Sasse said. “Was there something else the federal government did that you were suing them for?”

Well, yes. Had Sasse unplugged his ears, he would have heard Becerra explain how Trump’s policies profoundly interfered with a spectrum of applications of the Affordable Care Act.

By the way, the Little Sisters accommodation applied not just to nuns, but to all employees of the order’s nursing homes eligible for health insurance.

It’s simply a lie that Becerra’s goal was to force the nuns to buy contraceptive insurance — that issue had been settled years before, under Obama, with the accommodation exempting the Little Sisters and other religious institutions like them from paying for contraceptive insurance.

Nothing in the states’ lawsuit sought to overturn that accommodation. Sasse undoubtedly knows this, because he’s not a complete idiot — he has a degree from Harvard and a doctorate from Yale.

But what Sasse knows even better is the value of ginning up a fake, baldly partisan claim against a Cabinet nominee, just to make points with voters a lot less informed than he is.