Xavier Becerra, US president Joe Biden’s nominee for HHS secretary, did indeed sue to take away the religious exemptions for the Little Sisters of the Poor, and it is only “technically true” for the California attorney general to claim that he sued the Trump administration, not the Catholic sisters who joined the case in order to defend against threats to their rights, says an attorney involved in their case.
 
“This very afternoon I have to go to a hearing against Mr. Becerra in his lawsuit against the Little Sisters of the Poor,” Mark Rienzi, president of the Becket legal group, told CNA March 2. “I think Mr. Becerra is suing nuns. He is at the very least litigating against the Little Sisters as we speak.”
 
Rienzi’s legal group has supported the Little Sisters of the Poor in their opposition to the Obama administration’s Department of Health and Human Services mandate which requires employers to provide coverage of sterilization and contraception, including drugs that can cause abortions. The Little Sisters have secured multiple court victories, and the Trump administration crafted religious and moral exemptions for groups affected by the mandate.
 
Rienzi described the situation by invoking the way parties to a case are named, on different sides of the “v.” abbreviation for “versus.”
 
“For the last three-plus years, (Becerra) has been on one side of the ‘v.’ and the Little Sisters have been on the other side of the ‘v’ and he’s been trying to take away their religious liberty rights,” said Rienzi.
 
In 2017, Becerra, in his role as the attorney general of California, sued the Trump administration over these exemptions. Becerra’s lawsuit, as well as a lawsuit by Pennsylvania against the administration, resulted in the nuns’ appeal to the Supreme Court. The court in 2019 allowed them to intervene in the case to defend their rights, and ultimately ruled in their favor in July by upholding the Trump administration’s religious and moral exemptions.
 
Becerra on Feb. 24 appeared at the U.S. Senate Finance Committee confirmation hearing on his nomination as secretary of the Department of Health and Human Services. There, he rejected claims that he was suing nuns.
 
“I have never sued any nuns. I have taken on the federal government, but I have never sued any affiliation of nuns,” said Becerra. Rather, his actions were directed at federal agencies that “have been trying to do things that are contrary to the law in California.”
 
The Washington Post in a Feb. 26 fact check analysis, “Biden’s pick for HHS sued the Trump administration, not a group of nuns,” tended to side with Beccera’s interpretation, but also acknowledged the Little Sisters’ interest in the case.
 
“California is suing the federal government, challenging a Trump administration policy that exempts some employers from providing contraceptive coverage under the Affordable Care Act. The Little Sisters of the Poor voluntarily joined that case, taking the Trump administration’s position that the exemptions were legally valid,” Salvador Rizzo’s Washington Post column said.
 
However, Rienzi emphasized the importance of the case for the Little Sisters because of “the threat of what the original federal mandate was going to do.”
 
“If they wouldn’t violate their religion, it would impose $75 million in fines on the sisters,” he said. “When the federal government finally got it right and said ‘okay we’ll exempt you, sisters, you don’t have to do this,’ that’s when Becerra and the states sued to try to get that mandate back.”
 
The Little Sisters had to act, he said: “It’s the looming threat against everything you do that your govt is either going to tell you, violate your religion or shut your doors.”
 
“It’s certainly true that the sisters have won at every stage. They keep winning because this is a ridiculously bad claim that Becerra and others are pushing,” he said. “But they’ve had to fight to get to that point to preserve their ministry of caring for the elderly and caring for the people in need. That’s the burden. That’s the threat. That’s the harm.”
 
Becerra’s case aimed to secure a ruling that exemptions are not required.
 
“In other words, the whole theory of the California case is that there shouldn’t be injunctions like that because federal law doesn’t allow for religious liberty exemptions like that,” said Rienzi.
 
“Technically I suppose the Little Sisters or anybody else could have just sat on the sidelines and watched Becerra and California have a lawsuit designed to take away their rights. But as it was their rights at issue, the federal judge said it was correct that they belonged in the lawsuit. They showed up to protect their rights in the lawsuit,” he said.
 
In another case involving Becerra and nuns, a group of Catholic nuns was affected by the state’s universal abortion coverage mandate. They did not fight the mandate in court, but did file a complaint with the civil rights office at the Department of Health and Human Services. The Missionary Guadalupanas of the Holy Spirit alleged that their religious freedom was being violated by having to provide abortion coverage in health plans.
 
The HHS office in January 2020 ultimately found that Becerra violated federal conscience laws, and gave him 30 days to comply with the law. Becerra refused, and in December the agency announced it would withhold $200 million in Medicaid funds to California.

Besides religious freedom, Becerra’s confirmation hearings focused on abortion. He did not directly answer whether he would support taxpayer-funded abortion and did not explain his previous opposition to a 2003 ban on partial-birth abortions. He indicated he wanted to expand access to chemical abortions, citing patients’ use of telehealth technology to consult doctors remotely during the coronavirus pandemic.

The Senate Finance Committee voted in a party line 14-14 vote March 3 to advance Becerra’s nomination to the Senate floor.