Questions to consider while reading Kaveny on "The Case of the Little Sisters of the Poor"

Thank you to Michael Perry for directing us to the recently posted paper by Professor Kaveny on "The Case of the Little Sisters of the Poor." I haven't carefully considered the precise claims in Profeesor Kaveny's paper yet, but I've seen enough to post with questions now.

The abstract alone puts me on the defensive. In it, Professor Kaveny charges that "the exigencies of litigation have required the plaintiffs to distort Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others." Further, "[t]his distortion has prevented them from helping to discern what sorts of conscience protection are appropriate for all of us in an interdependent and pluralistic constitutional democracy."

These claims hit home because I represent the Little Sisters of the Poor, and have since the beginning of this saga. In so doing, I have tried my best to draw on an accurate understanding of Catholic moral theology and federal law. 

I initially tried to help the Little Sisters avoid going to court. After President Obama expressed openness to an expanded exemption, we filed comments explaining why the Administration's initial offerring was unacceptable. Those comments drew directly from the Little Sisters' public statements -- statements that were written, I unfortunately need to add, without the input of any lawyers or PR types. 

I failed ... and the government failed us, by promulgating revised regulations that remained problematic. 

The Little Sisters wanted to stay faithful both to their religious mission and to federal law. RFRA, among other provisions of federal law, was on their side. And so the case came. 

We ended up in court--with more, and more suitable, lawyers--because the regulations required the Little Sisters to arrange their health benefit plans contrary to how they had arranged them for years in compliance Catholic social teaching. The contraceptive mandate threatened to alter the status quo the Little Sisters had maintained for many years successfully, for many years without controversy, and until then without breaking federal law. 

The Little Sisters' alleged misunderstanding of "Roman Catholic moral teaching on cooperation with evil and the respect due to the conscience of others" (in Professor Kaveny's words) predates by decades the Obama Administration's controversial implementation of the women's preventive health services provision. As I read Professor Kaveny's paper, then, here are some of the questions that will be on my mind:

(1) Have the Little Sisters of the Poor always misunderstood "Roman Catholic moral teaching" in arranging their health benefits to exclude contraceptive and abortifacient coverage?

(2) If the Little Sisters' pre-existing health benefits arrangements rested, instead, on a proper understanding of "Roman Catholic moral teaching," what was it about the Obama Administration's regulation that altered the analysis under Catholic moral theology? 

(3) Does it matter to theological analysis of compliance with this regulation whether it was promulgated in violation of a federal statute, namely the RFRA?

(4) If Professor Kaveny had been a lawyer advising the Little Sisters of the Poor when the initial regulation had been promulgated, would she have advised them to roll over and abandon their longstanding arrangements? What, concretely, would she have advised?

 (5) If it is to be regretted that "the adversarial nature of the legal process has pressed [the Little Sisters of the Poor] to understand both their own obligations and those of the government in a binary manner," who is more responsible for this state of affairs: (a) the Little Sisters and their lawyers, or (b) the Administration and its enablers?