The Stories We Tell

6 February 2014

“We tell ourselves stories in order to live,” Joan Didion famously wrote in her essay collection “The White Album.” It’s a haunting line, because it’s so universally applicable. We tell ourselves stories not only for profound reasons but for mundane ones as well: to process the ambiguous and complex events that unfold every day around us, or even to try to understand the issues presented in a major Supreme Court case.

Last month, the court heard arguments in an abortion-related case from Massachusetts. The question was whether the 35-foot buffer zone that the state maintains around medical offices where abortions are performed violates the First Amendment. The case is McCullen v. Coakley. Coakley is Martha Coakley, the Massachusetts attorney general, whose office is defending the 2007 law. McCullen, in whose name the challenge to the law was brought, is Eleanor McCullen, and the story many people seem to be telling themselves about this case is hers.

Eleanor McCullen is a 77-year-old grandmother whose photograph, with an oversize cross hanging from her neck over a bulky winter coat, has been ubiquitous in accounts of the case. For many years she has positioned herself outside the entrance to a Planned Parenthood clinic in downtown Boston with the mission of dissuading women from going ahead with their scheduled abortions. Her argument in the case is that the buffer zone means she can’t engage the women in low-key conversation as she wishes, but instead has to raise her voice in order to get their attention and deliver a message that as a result is inevitably perceived differently.

Justice Antonin Scalia, for one, channeled Mrs. McCullen from the bench during the Jan. 15 argument, when he instructed Jennifer Grace Miller, the state’s lawyer, that “what this case involves, what these people want to do, is to speak quietly and in a friendly manner.” Returning to this theme later in the argument, he scolded Ms. Miller: “I object to you calling these people protestors, which you’ve been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?”

Missing from the story of the cherubic grandmother, of course, is context -- the reason that Massachusetts enacted its buffer zone, adapted from one the Supreme Court upheld in a Colorado case 14 years ago. (The vote in that case, Hill v. Colorado, was 6 to 3, but the departure since then of two members of the majority, Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor, could make a crucial difference, leaving the durability of the precedent is very much in doubt.)

Abortion clinics in Massachusetts have witnessed not only orchestrated harassment but also deadly violence; 20 years ago, amid other such incidents around the country, two clinic staff members were shot to death in Brookline, adjacent to Boston. Ms. McCullen has long been affiliated with Operation Rescue, a group that at its height in the 1990s regularly massed hundreds of people to blockade abortion clinics with the goal of shutting them down. Viewing the law in context, and in light of the Supreme Court’s precedents, the federal appeals court in Boston upheld it as a reasonable regulation designed to protect public safety, leaving any impact on speech both incidental and justifiable.

I mention these facts not to assign guilt by association or to impugn the sincerity and peaceful nature of Ms. McCullen’s mission. Nor do I mean to simplify the tricky free-speech issues that have made defense of the statute the object of contention in some progressive circles. But it’s important to get beyond the storytelling and recognize this case for what it is: not a grandmother’s tale but a vehicle in a nationally designed effort to get the Roberts court to reopen settled questions concerning abortion.

The First Amendment question in the McCullen case is at least debatable. Sometimes the stories we tell ourselves are simply fantastical. The case of the Little Sisters of the Poor is a prime example. The narrative that has come to define the dispute between an order of nuns and the Obama administration over the Affordable Care Act’s contraception mandate is fundamentally divorced from the facts of the McMullen case, and yet the Supreme Court -- all nine justices -- appears to have fallen for it hook, line and sinker. I’ve been watching the Supreme Court long enough that I can almost always come up with a plausible explanation for what goes on there, even when I think the court is wrong-minded. But this time, I have to confess, I’m stumped.

Little Sisters of the Poor is an order of nuns who offer end-of-life care to the elderly poor in the United States and more than two dozen other countries. As a nonprofit religious organization, the order is exempt from the requirement to provide contraception coverage under its group health insurance plan. Ordinarily, that would mean that the organization’s “third-party administrator” would have to pick up the cost. But because the Little Sisters’ administrator, the Christian Brothers Employee Benefit Trust, which handles insurance for hundreds of Catholic organizations, is also a religious organization, it, too, is exempt from the mandate. It could choose to offer the coverage, but it has announced that it won’t do so.

In other words, 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. The administration has made clear that it will accept the Little Sisters’ self-certification at face value. But they do have to sign -- just as someone who objects on religious grounds to registering for the draft nonetheless is required by law to show up and register as a prerequisite for claiming conscientious objector status. In any other way lies chaos. As Solicitor General Donald B. Verrilli Jr. explained to the Supreme Court in the government’s brief last month opposing the Little Sisters’ request for an injunction:

“When extending religious accommodations, the government must be allowed to provide for regularized, orderly means of permitting eligible individuals or entities to declare that they intend to take advantage of them. That is what the self-certification under the regulations accomplishes, and it does so by requiring only that employer-applicants say something that they have said repeatedly in this litigation, namely, that they object on religious grounds to providing contraceptive coverage to their employees.” Permitting a refusal even to certify, the solicitor general told the court, “would be extraordinary.”

Does this sound like “indifference to religious liberty,” let alone “harassing nuns,” as Kirsten Powers, a Fox News commentator, wrote last week in USA Today? The Becket Fund for Religious Liberty, representing the Little Sisters (the same lawyer, Mark L. Rienzi, represents both the nuns and Eleanor McCullen), told the Supreme Court in a brief that the government was “simply blind to the religious exercise at issue: the Little Sisters and other applicants cannot execute the form because they cannot deputize a third party to sin on their behalf.”

“Sin.” Now there’s a scary word -- or it might be if it bore any relation to reality. But as the government explained, it doesn’t.

Still, the justices gave the Little Sisters what they wanted -- an injunction barring the government from enforcing the mandate against them and relieving the nuns of the need to sign the government form while their underlying challenge is on appeal to the federal appeals court in Denver. The Little Sisters must “inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services,” the court’s unsigned and apparently unanimous Jan. 24 order said. But they “need not use the form prescribed by the government and need not send copies to third-party administrators.” 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?

I worry about the real story that I see emerging here: sustained aggressiveness by religious groups that sense weakness in the executive branch and welcoming arms at the Roberts court. The Obama administration has offered the churches an ever more generous set of accommodations, but each has only led to a demand for more. 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.

Next month, the justices will hear the Hobby Lobby case, the challenge to the contraception mandate by a for-profit corporation that engages in commerce and employs thousands of people. Hobby Lobby has received a good deal of attention, the Little Sisters less so. The next few months will tell us whether the Supreme Court, captivated by the nuns’ narrative, merely stumbled into the role of enabling a school-yard bully, or whether its puzzling behavior signifies a new chapter in a perennial story, the struggle over the role of religion in the country’s public life.