The Catholic Voices Blog
USCCB president Cardinal Timothy Dolan has released an excellent statement on last Friday's HHS mandate revisions. Cardinal Dolan's tone throughout is both measured and hopeful that an acceptable solution will be found, but it's clear that the administration's latest proposal isn't it:
Because the stakes are so high, we will not cease from our effort to assure that healthcare for all does not mean freedom for few.Throughout the past year, we have been assured by the Administration that we will not have to refer, pay for, or negotiate for the mandated coverage.We remain eager for the Administration to fulfill that pledge and to find acceptable solutions—we will affirm any genuine progress that is made, and we will redouble our efforts to overcome obstacles or setbacks.Thus, we welcome and will take seriously the Administration's invitation to submit our concerns through formal comments, and we will do so in the hope that an acceptable solution can be found that respects the consciences of all.At the same time, we will continue to stand united with brother bishops, religious institutions, and individual citizens who seek redress in the courts for as long as this is necessary.
Cardinal Dolan makes clear that the elimination of the exemption's most objectionable language is good as far as it goes, but doesn't go far enough:
The Administration's proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities. HHS offers [them] what it calls an "accommodation," rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches. And finally, it seems to take away something that we had previously—the ability of an exempt employer (such as a diocese) to extend its coverage to the employees of a ministry outside the exemption.
The proposed accomodation likewise remains unresponsive to concerns expressed repeatedly by the bishops and other stakeholders:
Second, United for Religious Freedom explained that the religious ministries not deemed "religious employers" would suffer the severe consequence of "be[ing] forced by government to violate their own teachings within their very own institutions." After Friday, it appears that the government would require all employees in our "accommodated" ministries to have the illicit coverage—they may not opt out, nor even opt out for their children—under a separate policy.In part because of gaps in the proposed regulations, it is still unclear how directly these separate policies would be funded by objecting ministries, and what precise role those ministries would have in arranging for these separate policies.Thus, there remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities. Here, too, we will continue to analyze the proposal and to advocate for changes to the final rule that reflect these concerns.
Finally, Cardinal Dolan makes clear that individuals are due conscience protection as well:
Friday's action confirms that HHS has no intention to provide any exemption or accommodation at all to this "third class."In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath. We cannot now abandon them to be forced to violate their morally well-informed consciences.
The statement demonstrates that the bishops remain open to working with the administration to resolve these issues: "Only in this way can we best assure that healthcare for every woman, man and child is achieved without harm to our first, most cherished freedom."
For more on the latest mandate revisions, see here.
The administration has again missed a chance to resolve a serious religious liberty controversy of its own creation.
Well over a year ago the Department of Health and Human Services mandated that all employers provide insurance coverage for contraception, sterilization, and abortion-causing drugs, even if doing so violates their deeply-held religious beliefs. The administration exempted only churches themselves from this requirement, ignoring the longstanding bipartisan consensus favoring broad protection for conscience rights. Not only that, to receive an exemption a church had to have the primary purpose of inculcating religious values, and had to serve and employ primarily members of its own faith. As New York’s Cardinal Timothy Dolan noted, “Jesus and His disciples would not qualify for the exemption.”
Even traditional administration allies balked at this cramped idea of whose religious beliefs were worthy of protection. HHS unsuccessfully tried to make the problem go away by postponing enforcement against some religious objectors for a year. Eventually it suggested an accommodation – insurers themselves could automatically provide the coverage to policyholders for free – that was widely dismissed as an accounting gimmick, and an unworkable one at that.
These ineffective attempts to resolve the issue satisfied very few, and soon a broad array of religious schools, hospitals, social service agencies, and private employers challenged the HHS mandate in court. Currently over 130 plaintiffs in 44 mandate cases are attempting to vindicate their religious liberty rights. Momentum in the cases litigated so far runs decidedly against the administration, and the first appellate court to hear the matter ordered the government to publish a revised rule in the first quarter of 2013.
This legal pressure no doubt led to the administration’s attempt to square the circle last Friday. The latest proposal takes positive steps: it removes the exemption’s unprecedented language requiring that religious groups focus on the "inculcation" of religion, and that they serve and employ only those who share their faith, in order to fall within the exemption. It also sidesteps some potential Establishment Clause concerns. But these welcome changes still don’t resolve fundamental religious liberty questions at stake. Most objecting religious employers are in the same position they were before Friday, faced with a choice between giving up their religious beliefs or facing crippling government fines.
Take that narrow exemption. Its most objectionable language has been removed, but functionally the exemption hasn’t been broadened at all. The administration admits as much, stating that “this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” In other words, colleges, hospitals, and most social service organizations are still not exempt from the mandate.
Or take the accommodation for religious non-profits. Once again the administration ignores many groups’ view that it’s not just about the money: facilitating access to objectionable goods and services violates their religious beliefs as well. Instead of responding to this concern, the administration offers an updated version of its accounting gimmick, requiring the religious groups’ insurance companies to automatically issue separate policies to cover contraception, sterilization, and abortion-causing drugs. It remains unclear where HHS gets the authority to force insurers to issue these policies, and who will ultimately pay. And as before, those who self-insure are left without a concrete, workable solution.
What about for-profit employers? Once again, the latest proposal fails to protect their religious freedom. But when it comes to religious liberty, why should it matter whether an organization is run as a non-profit or a for-profit entity? Private employers have raised strong religious liberty claims that have yet to receive adequate answers.
Common-sense conscience protections are routinely included in legislation that raises religious liberty concerns. Had that path been pursued at the outset, this intractable controversy could have been avoided. Instead, religious employers still struggle to be heard. With this latest round of mandate revisions, the administration has missed another opportunity to take religious liberty seriously.
Today the administration proposed another set of revisions to the HHS mandate. Already we've seen many conflicting accounts as to whether these proposals should satisfy those with religious-liberty concerns. Unfortunately, the answer is no. These latest tweaks fail to respond to many serious, widely shared criticisms of the mandate.
The Becket Fund, which represents many of the plaintiffs challenging the mandate, lays out several significant problems with the rule announced today:
-- The proposed rule provides no coverage for family businesses like Hobby Lobby.
-- The proposed rule does not meaningfully expand the “church-only” exemption – which is the real relief that our clients are entitled to under our constitution.
-- For other religious non-profits, HHS proposes a convoluted “accommodation” that may not resolve religious organizations’ objections to being coerced into providing contraceptives and abortifacients to their employees.
-- Finally, the long-awaited rule provides no concrete guidance for religious groups that are self-insured.
The fact that the DC circuit held the administration's feet to the fire likely led to today's ultimately ineffective attempts to satisfy religious objectors. That court's order in Wheaton College v. Sebelius required the government to issue today's Notice of Proposed Rulemaking in the first quarter of the year, and also required frequent status reports.
While this latest attempt to square the circle removes harmful language in the exemption, the exemption itself remains extremely narrow, failing to include hospitals, universities, and social-service organizations. The accomodation for religious non-profits remains ill-defined, unworkable, and unresponsive to their concerns. Self-insured groups still have no workable solution. And private employers with religious objections remain without protection. The administration chose appearance over substance, missing an opportunity to resolve this divisive issue.
As we enter the new year it's time to take stock of where the legal fight against the HHS mandate stands. The past few weeks have seen important developments, both positive and negative, all of which should cause mandate opponents to redouble our efforts.
There are 43 cases and over 110 plaintiffs challenging the HHS mandate on religious liberty grounds. One set of cases involves for-profit employers not covered by the safe harbor. Because implementation of the mandate against that group began on January 1st, December saw many courts acting on their claims. The good news: the legal scorecard for these plaintiffs continues to favor opponents of the mandate.
To date, of the 13 for-profit plaintiffs who've received rulings related to the merits of their claims against the mandate, 10 have secured injunctive relief.
For those keeping track of the legal specifics, compare Korte v. Sebelius, No. 12-3841, slip op. (7th Cir. Dec. 28, 2012) (injunction pending appeal); O’Brien v. HHS, No. 12‐3357 (8th Cir. Nov. 28, 2012) (injunction pending appeal); Newland v. Sebelius, 2012 WL 3069154 (D. Colo. July 27, 2012) (preliminary injunction); Legatus v. Sebelius, 2012 WL 5359630 (E.D. Mich. Oct. 31, 2012) (preliminary injunction for Weingartz plaintiffs);Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C. Nov. 16, 2012) (preliminary injunction); Am. Pulverizer Co. v. HHS, No. 6:12-cv-03459 (W.D. Mo. Dec. 20, 2012) (preliminary injunction); Conestoga Wood Specialties Corp. v. Sebelius, No. 5:12-cv-06744-MSG (E.D. Pa. Dec. 28, 2012) (temporary restraining order); Domino’s Farms Corp. v. Sebelius, No. 2:12-cv-15488-LPZ-MJH (E.D. Mich. Dec. 30, 2012) (temporary restraining order); Sharp Holdings, Inc. v. HHS, No. 2:12-CV-92-DDN (E.D. Missouri ND Dec. 31, 2012) (temporary restraining order); Triune Health Group v. HHS, No. 12 C 6756 (N.D. Ill. Jan. 3, 2013) (preliminary injunction granted); with Hobby Lobby Stores, Inc. v. Sebelius, 2012 WL5844972 (W.D. Okla. Nov. 19, 2012), on appeal, No. 12-6294 (10th Cir. Nov. 19, 2012); Autocam Corp. v. Sebelius, No. 1:12-cv-01096-RJJ (W.D. Mich. Dec. 24, 2012), on appeal, No. 12-2673 (6th Cir. Dec. 28, 2012); and Grote Indus. LLC v. Sebelius, No. 4:12-cv-00134-SEB-DML (S.D. Ind. Dec. 27, 2012).
For employers who lost their court challenges, implementation of the HHS mandate has begun. The denial of Hobby Lobby's claim drew particular public attention and support as it potentially faces $1.3 million in fines per day. This past Saturday was "Hobby Lobby Appreciation Day", and many took the opportunity to shop in Hobby Lobby stores as a show of support, with over 60,000 people signing an online commitment to do so.
Non-profit employers covered by the safe harbor continue to face an uphill court battle, with Notre Dame being the most recent to have its motion for a preliminary injunction denied. Nonetheless, mandate opponents have scored two important recent victories: (1) Wheaton College v. Sebelius (D.C. Cir. Dec. 18, 2012), which one widely-read legal commentator has noted means "that HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception; and (2) Archdiocese of New York v Sebelius, (E.D.N.Y. Dec. 5, 2012), in which the court noted that
... the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, “Trust us, changes are coming” clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction....Considering the extraordinary political passion surrounding the [HHS mandate] from all sides, there is simply no way to predict what, if any, changes to the [HHS mandate] will be made, even if some policymakers favor certain changes.
As we've pointed out, these decisions have forced the administration's hand; it now has to propose a new rule in the next three months, one whose religious liberty protections will face close review by the D.C. Circuit.
Given a legal landscape that's shifted our way, now more than ever mandate opponents should press the administration for a workable solution that respects fundamental religious liberties.
That's the verdict of Jonathan Adler at the Volokh Conspiracy, a widely-read legal blog. Here's Adler on yesterday's DC Circuit ruling in Wheaton v. Sebelius:
As a consequence of this ruling HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception. The interesting question will be how this is to be accomplished under existing statutory authority. Moreover, the Administration’s proposed fix — allowing religious employers to exclude contraception coverage but requiring insurers to provide separate contraception coverage to employees at no charge — would do nothing to alleviate the burden on those religious employers that self-insure (which many do because, among other reasons, it provides a way to escape state-level contraception mandates).
This is only the latest in a string of legal decisions spelling trouble for the administration, with more likely to come:
Meanwhile, on November 28, the U.S. Court of Appeals for the Eighth Circuit stayed a district court decision dismissing a suit against the mandate filed by a private employer professing religious objections. (Judge Arnold dissented from the order without opinion.) Further, as Stuart Taylor notes in this overview of the litigation for Kaiser Health News, three other district courts have issued preliminary injunctions against the mandate in separate cases, and literally dozens more cases are pending. So as predicted, the contraception mandate appears to be having trouble in federal court.
As I noted earlier today, it's time for the administration to put a serious proposal on the table.
Late yesterday the DC Circuit issued a order in Wheaton College v. Sebelius that should be considered a strong victory for HHS mandate opponents. This is the first appellate-level consideration of the mandate, so the ruling is especially important.
Just last Friday the DC Circuit heard oral argument in the case, which consolidated appeals from two colleges, Wheaton and Belmont Abbey, whose cases the lower court had dismissed on standing and ripeness grounds. At the hearing one member of the panel, Judge Randolph, said the "guidance documents" issued to religious employers on the HHS mandate were "like a press release", and that "the government is sending mixed message about what's coming down the pike." Other panel members discussed the need for judicial restraint.
Yesterday the court neatly resolved these concerns, issuing an order that binds the government to its oral representations not to enforce the current mandate:
[The government] represented to the court that it would never enforce [the HHS mandate] in its current form against the appellants or those similarly situated as regards contraceptive services....There will, the government said, be a different rule for entities like the appellants...and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013....We take the government at its word and will hold it to it.
The court held the case in abeyance, but emphasized that it was doing so "based expressly upon the understanding that the government will not deviate from its considered representations to this court...." Finally, the court retained jurisdiction over the case, requiring the government to provide regular status reports every sixty days.
Representing the colleges, Kyle Duncan of the Becket Fund notes that this is a victory for more than just the plaintiffs:
This is a win not just for Belmont Abbey and Wheaton, but for all religious non-profits challenging the mandate. The government has now been forced to promise that it will never enforce the current mandate against religious employers like Wheaton and Belmont Abbey and a federal appellate court will hold the government to its word.
First the win in the Eastern District of New York, and now this; mandate opponents clearly have the momentum. As the administration works to craft a new rule, it's time for us to renew our efforts against this unjust and unworkable mandate.
The season of Advent is a time for gathering with family and friends to prepare for the coming of Christ. With that in mind, I'd like to take a step back from the public square to speak directly to my Catholic brothers and sisters. Now more than ever, the Church needs you to speak out about religious liberty.
As the HHS mandate deadline approaches for employers, it's important you take a minute to inform your social network about the devastating effects it will have on the neediest among us. Research a catholic charity in your local area, and look for an opportunity over eggnog to inform Aunt Betty how that charity might be affected. Explain that many charities are run on a shoestring budget, and that fines will force them to reduce services or shut down all together. It’s important that you make it personal for whoever your listener(s) might be.
A lot of my family and friends live in the Philadelphia area, so I like to point to Women of Hope locations in that area as an example. Women of Hope is a Catholic social service organization that responds to the growing problem of homeless women with mental illness. Currently 46 women reside at two facilities in Philadelphia. Can you imagine if some or all of these women lost housing because crippling fines forced Women of Hope to reduce or eliminate services?
You get the point. Share the story of a local catholic charity this holiday season, and help turn the spotlight back on threats to religious liberty. Your personal witness will mean much to the Church.
Great news: a federal judge has ruled that the Archdiocese of New York's lawsuit challenging the HHS mandate can go forward, rejecting the administration's claim that the suit was premature. Unlike several previous courts, here the Eastern District of New York held that the administration's one-year safe harbor provision and tentative compromise suggestions in its Advance Notice of Proposed Rulemaking ("ANPRM") fail to protect the plaintiffs from imminent harm. The case will now proceed to argument on the merits. It's the first time a court has recognized that religious non-profits face imminent (even current) harm from the mandate and thus have standing to bring a lawsuit, and that they raise claims that are ripe for review.
Judge Brian Cogan has written an opinion to be reckoned with. He directly confronts other decisions holding that the safe-harbor provision and the ANPRM adequately protect religious non-profits from imminent harm, concluding that "those courts overestimate the significance of the ANPRM and underestimate the finaility of the [HHS mandate]...." Regarding the one-year safe harbor, he notes that it
does nothing to reduce the certainty that plaintiffs will suffer injury from the [HHS mandate] in the future. All the safe harbor does is postpone the date by which plaintiffs must comply with the [HHS mandate] or suffer penalties. That deadline is looming and certain.
As for the ANPRM -- the administration's non-binding statement of potential compromise ideas for religious non-profits -- Judge Cogan likewise finds that it's of no help to plaintiffs:
"The Court will assume that the Departments issued the ANPRM in good faith and not as litigation posturing....Despite defendants' attempt to characterize the ANPRM as a binding promise not to enforce the [HHS mandate], the fact is that the ANPRM does not prevent the [HHS mandate], as it currently exists, from going into effect. It is not a change in policy; it merely seeks input to allow the Departments to consider possible revisions to the [HHS mandate]. The Departments need not make any changes to the [HHS mandate] to accommodate religious groups at all.
In this light, the Court finds that plaintiffs' claimed future injuries are certainly impending. The law as it currently written requires that, beginning January 1, 2014, plaintiffs must either pay onerous fines or provide contraceptive coverage in violation of their beliefs. The Departments may alter the [HHS mandate] before that time, but the possibility of a change in the law does not mean that a requirement that will become effective by operation of law is not certainly impending....Thus, plaintiffs' future injuries are sufficiently imminent to constitute injuries in fact....Therefore, the Court concludes that, notwithstanding the ANPRM, plaintiffs have standing to bring this suit based on their future injuries."
Best of all, Judge Cogan recognizes what mandate opponents have been arguing for months: that, on top of substantial budgeting and administrative costs, the HHS mandate is already causing "the diversion of funds away from ministries, such as healthcare, in order to prepare for possible fines...." The plaintiffs cannot ignore or postpone these costs:
Fundamentally … this Court cannot accept that the present costs incurred by plaintiffs are simply the result of their “desire to prepare for contingencies.” Quite frankly, ignoring the speeding train that is coming towards plaintiffs in the hope that it will stop might well be inconsistent with the fiduciary duties that plaintiffs’ directors or officers owe to their members. As explained above, the practical realities of administering health care coverage for large numbers of employees -- which defendants’ recognize -- require plaintiffs to incur these costs in advance of the impending effectiveness of the [HHS mandate]....
Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, “Trust us, changes are coming” clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction....Considering the extraordinary political passion surrounding the [HHS mandate] from all sides, there is simply no way to predict what, if any, changes to the [HHS mandate] will be made, even if some policymakers favor certain changes. [Emphasis added].
The opinion is worth reading in full; you should also take a look at Marc DeGirolami's good run-through over at Mirror of Justice. But here's the takeaway: a court has finally recognized that religious non-profits are already facing significant costs as they plan for the mandate's enforcement against them, and has called out the administration's attempts at compromise for what they are -- stop-gap and insufficient.
Other courts will have to take into account this fact-based, well-considered decision when ruling on similar HHS mandate lawsuits. Keep your eye on the consolidated Wheaton College/Belmont Abbey case, for instance; that challenge, set for oral argument next Friday, December 14th, is the first to be considered by a federal appellate court.
On Friday a court enjoined the government from enforcing the HHS mandate against Tyndale House, a privately-held corporation, holding that it was likely to succeed on the merits of its claim under the Religious Freedom Restoration Act.
Yesterday a different court came to the opposite conclusion. A federal judge ruled that the government could force Hobby Lobby, another privately-held corporation, to cover abortifacient drugs in violation of the sincerely-held religious beliefs of its owners. The court followed the reasoning of the O'Brien court in denying plaintiffs' free exercise and RFRA claims, holding that the burden imposed on plaintiffs by the mandate was not substantial.
Needless to say, Hobby Lobby disagrees. Here's their attorney, Kyle Duncan of the Becket Fund:
We disagree with this decision and we will immediately appeal it....Every American, including family business owners like the Greens, should be free to live and do business according to their religious beliefs. The Green family needs relief now and we will seek it immediately from the federal appeals court in Denver.
If this decision stands, on January 1st Hobby Lobby and the Green family must begin covering abortifacient drugs or face penalties of up to $1.3 million per day. As the imposition of crippling fines becomes imminent, it's all the more important for the administration to advance a real compromise that tracks the common-sense conscience protections that exist throughout federal law. Perhaps one of Congress' pro-life Democrats can lead the way.
On Friday a federal judge ruled in favor of Tyndale House Publishers in their litigation challenging the HHS mandate, granting a preliminary injunction preventing the administration from enforcing the mandate against Tyndale House while its lawsuit is pending.
In opposing the motion for a preliminary injunction, the Department of Justice argued that Tyndale House -- a Bible publisher that "directs 96.5 percent of its profits to religious non-profit causes worldwide" -- wasn't religious enough to qualify for an exemption from the mandate.
The court disagreed. It first recognized that Tyndale House, "a closely-held corporation owned by four entities united by their Christian faith", had standing to assert a RFRA claim on behalf of its owners:
.... the Court finds that Tyndale has made a satisfactory showing of Article III standing. According to the complaint, Tyndale has been subject to the contraceptive coverage mandate since it became effective on October 1, 2012, and, based on its noncompliance with the law on religious grounds, it currently faces heavy fines and penalties that accrue daily, as well as likely governmental enforcement actions .... The defendants do not dispute these allegations. Tyndale has therefore shown an “actual or imminent” injury-in- fact that is “concrete and particularized” and “‘fairly . . . traceable’” to the contraceptive coverage mandate.
The court then determined that Tyndale House was likely to succeed on the merits of its RFRA claim, finding that the mandate clearly imposed a substantial burden on its exercise of religion:
The contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance. Such a threat to the very continued existence of the plaintiffs’ business necessarily places substantial pressure on the plaintiffs to violate their beliefs.
The court turned to the next question under the RFRA analysis: whether the government had met its burden of demonstrating a "compelling interest" to justify the substantial burden it had placed on plaintiff's exercise of religion. The court rightly refused to let the government meet this test by broad references to its interest in advancing public health and women's access to health care; the relevant legal question is "whether the government has shown that the application of the contraceptive coverage mandate to the plaintiffs furthers those compelling interests" (emphasis in original). It likewise saw the mandate's under-inclusiveness -- certain religious employers are exempted, as are grandfathered plans covering some 191 million people -- as evidence that the government hasn't acted as if its interest is particularly compelling.
Because the administration failed to meet its burden under the compelling interest prong of the RFRA analysis, the court didn't need to reach the third prong of RFRA, which requires the government to show it used the least restrictive means to achieve its interests. Finding a "strong likelihood of success on the merits", and concluding that Tyndale House had demonstrated that it would suffer irreparable harm, the court enjoined enforcement of the mandate.
The US bishops held their annual conference in Baltimore this week, and religious liberty remains a top concern. Cardinal Dolan made it clear that while the Church is willing to work with the administration regarding the HHS mandate, legal challenges to it will move forward, and there will be no compromise on principle:
“The only thing we’re certainly not prepared to do is give in. We’re not violating our consciences,” Cardinal Dolan told reporters at a national bishops’ meeting. “I would say no door is closed except for the door to capitulation.”
Archbishop Lori of Baltimore drew particular attention to the mandate's narrow definition of religion, one that excludes Catholic hospitals, schools, and social service agencies:
And as it stands, certainly we would not be able to live with it,” he explained, “especially the four-part definition of what Church activity is. That’s just not who we are, and we don’t find it appropriate for any government to draw lines in our mission where we don’t draw them."
Besides the host of lawsuits filed against the mandate, legislative efforts will continue as well. Richard Doerflinger, the associate director of the USCCB's Secretariat of Pro-Life Activities, says that the 2013 Labor/HHS appropriations bill includes an amendment similar to the Fortenberry-Blunt Respect for Rights of Conscience Act, providing another opportunity to protect conscience rights:
They don’t have to do the appropriations bill until [March], but there are rumors that Congress and the White House — to avert the “fiscal cliff” — will have to do a deal on revenue and spending. Some would like the appropriations bill to be part of that [remedy]. Even before the end of this year, we may have a debate on this issue.
Right now, the House committee draft of the Labor/HHS appropriations bill has language like that of the Fortenberry-Blunt bill. I believe the House leadership will fight for that in negotiations with the Senate. Where that comes on the priorities list, we can’t say...We will be urging Catholics to write to their congressional representatives in support of that provision — Section 537 of the Labor/HHS appropriations bill.
We see every reason to continue our efforts in both Congress and the courts and to continue to ask the administration to take a more flexible view of the conscience issues involved.
Let's hope that the administration works with all affected parties to resolve these concerns and return to common-sense conscience protections.
It's not just opponents of the HHS mandate who recognize that legal challenges have taken on a new importance post-election. Today Kathryn Smith has an article up at Politico describing where things stand:
In recent days .. [t]wo District Court judges have granted preliminary injunctions to block the mandate from going into effect for private, nonreligious companies. (One judge has denied a preliminary injunction request.) And just last week, the Justice Department said it wouldn’t object to the 4th Circuit Court of Appeals taking up a case against the requirement — along with other pieces of the law....“I think you’ll see this issue really mushroom” because the government is appealing the injunctions, and the district cases will move soon, said Kevin Walsh, a University of Richmond law professor who was a clerk for Justice Antonin Scalia.
Not only are the 40 cases challenging the mandate going to "mushroom" as they work their way through the courts, the sheer number of cases, plus the subject matter, means they're likely to end up at the Supreme Court:
Historically, they have a keen interest in religious liberty issues, especially when it comes to government coercion of conscience,” [Kyle Duncan of the Becket Fund] said. “If one or more of these cases gets up to the Supreme Court, this would be the next big Religious Freedom Restoration Act case.” Duncan pointed to the 2006 decision in Gonzalez v. O Centro Espirita, in which the Supreme Court unanimously ruled that the Religious Freedom Restoration Act allowed a small religious group to use an illegal drug during worship services, even though it violated federal narcotics laws. [UVA religious liberty scholar Douglas] Laycock said when it comes to the religious freedom law, “The Supreme Court has taken that statute seriously and enforced it according to its terms and unanimously.”
Opponents of the mandate have a strong case under the Religious Freedom Restoration Act, which prevents the government from substantially burdening a person's exercise of religion unless it can demonstrate that it is using the least restrictive means to achieve a compelling government interest. In Newland v. Sebelius, for instance, the court didn't accept the government's argument that the mandate furthers its compelling interest in improving public health, given that Congress let so many avoid compliance:
The government has exempted over 190 million health plan participants from the preventive care coverage mandate; this massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs.”
The administration also can't meet RFRA's requirement that it achieve its goals by the means least restrictive of religious liberty. If the government believes providing women and teenage girls with free contraceptives, abortion-causing drugs, and sterilizations serves a compelling interest, it still doesn’t have to force those with religious objections to provide these things themselves. Most straightforwardly, the government could provide these things itself. There are any number of ways for it to do so – among them, direct government provision of free contraception (as already occurs through Title X); tax credits; or direct government compensation of those who provide these goods and services.
But the administration didn’t choose any of these less restrictive alternatives, as RFRA requires. Instead, it chose to achieve its goals through the means perhaps most restrictive of religious liberty: forcing religious believers to themselves facilitate access to goods and services in violation of their deeply-held religious beliefs.
Opponents of the HHS mandate shouldn't give up hope: challenges to this coercive rule rest on solid legal footing, and are likely to be heard by the Supreme Court, which just last term signaled its strong support for religious liberty.
In the end, the heart of truly faithful citizenship is this: We’re better citizens when we’re more faithful Catholics. The more authentically Catholic we are in our lives, choices, actions and convictions, the more truly we will contribute to the moral and political life of our nation.
The fight against the HHS mandate continues to gain momentum. Thousands of people have rallied for religious freedom at events around the country; Catholic Voices Caitlin Seery and Allison Baughman spoke at one such rally in Goshen, NY, standing up for religious liberty to an enthusiastic crowd. And on the legal front, over 110 plaintiffs have filed some 38 lawsuits against the mandate.
One of those plaintiffs scored an important victory this week. On Wednesday the Weingartz Supply Company won a court ruling against the mandate when a federal judge in Michigan granted an injunction preventing the government from enforcing the HHS mandate against it. The court found that Weingartz's Religious Freedom Restoration Act claim was likely to succeed on the merits, and ruled that the family-owned company and its Catholic owner could be irreparably harmed if forced to provide coverage to contraceptives, abortion-causing drugs, and abortifacients against their religious views.
Courts have also held hearings in other mandate lawsuits over the past few days. On Wednesday there was a hearing in the Geneva College case, and on Thursday a federal court in Oklahoma heard arguments in the Hobby Lobby case. The large chain of arts-and-crafts stores run by evangelical Christians in accordance with their faith has challenged the HHS mandate because it forces them "to provide, without co-pay, the “morning after pill” and “week after pill” in their health insurance plan, or face crippling fines up to 1.3 million dollars per day." According to their attorney, Kyle Duncan of the Becket Fund,
The administration’s arguments in this case are shocking. Here’s what they are saying: once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built. Kosher butchers around the country must be shocked to find that they now run “secular” businesses. On this view of the world, even a seller of Bibles is “secular.”
Here's what Duncan says to those who think Hobby Lobby is trying to impose its beliefs on its employees:
Hobby Lobby isn’t arguing for the right to impose the Greens’ religion on employees, nor for the right to fire employees of different religions. There’s already a federal law that protects employees from religious discrimination and that’s a very good thing. This case is about something entirely different: it’s about stopping the government from coercing religious business owners. The government wants to fine the Greens if they do not violate their own faith by handing out free abortion drugs, and now it’s saying they don’t even have the right to complain in court about it.
These cases are part of what can only be considered a major civil rights initiative. Laypeople and religious organizations large and small have come together to ask the courts to vindicate their first amendment rights, and they're succeeding. While these legal successes are welcome, they're necessarily piecemeal. Even more welcome would be the rescission of the HHS mandate and a return to a robust conception of religious liberty.
We don't value religious liberty merely as an abstraction, but because it protects our ability to live out our faith at ground level; to serve others as we're called to do. Anthony Bosnick, Director of the Department for Charity and Justice at the Archdiocese of Washington, has an excellent piece in the Washington Post making this point. Faith in action promotes the common good:
By giving witness to what their faith teaches, people of faith make great contributions to society through ministries such as food pantries and soup kitchens which serve the needy and vulnerable, clinics and hospitals ministering to those who cannot afford to pay, and schools educating young people who would otherwise attend schools that do not adequately meet their needs. Faith in the public square raises our awareness and concern for those in need, both at home and abroad. It helps to build community and promote the common good, enriching our lives and our communities and nation.
And religious liberty is essential to that effort:
Catholics are wary of the privatization of our own faith and the negative impact on society for all people of faith if we can no longer give public witness to what we believe. Our religious liberty gives us the freedom to live our faith in a public way, which we do -- not just through acts of worship, but also through loving, charitable service to others, which contributes to the common good . We serve not just Catholics, but everyone in need. This is part of what it means to be Catholic, and when our religious liberty is suppressed, this service to others – a very public expression of our faith – suffers.
This is the first in a series of three essays in the Post on faithful citizenship; looking forward to the others.
Just want to draw your attention to an excellent recent speech given by Catholic Voice Melissa Moschella on religious liberty in the U.S. today. It's a comprehensive treatment of religious liberty issues ranging from the HHS mandate to immigration. Melissa discusses why conscience rights are so important:
Conscience rights go to the core of what is to be a human person: the capacity to act based not only on desires or instincts, but on judgments about what is good and bad, right and wrong — and the moral responsibility that is inseparable from that capacity. To force a person to act contrary to conscience is to force him to violate his moral integrity. It is an assault on the person at his core, which is more devastating than physical harm...That’s why America’s founders were so adamant about the protection of religious liberty and conscience rights as fundamental to a free and just society.
It's a great resource, and worth reading in full.
Here's video of Cardinal Dolan's remarks at the Al Smith Dinner last night, where he talked about "loving a country which considers religious liberty our first and most cherished freedom, convinced that faith is not just limited to an hour of Sabbath worship, but affects everything we do and dare and dream".
The Al Smith Dinner benefits “the neediest children of the Archdiocese of New York, regardless of race, creed, or color.” Last year’s grant recipients included, among others, the Children’s Center at the Bedford Correctional Facility, the Elizabeth Seton Pediatric Center, and the Little Sisters of the Assumption Family Health Service. St. Dominic’s Home, another beneficiary, serves hundreds of children and families in neighborhoods where help is most needed, working to help families stay together against challenging odds.
These ground-level examples of our faith in action help civil society flourish in places that it often dies on the vine, and they make Catholics proud. Like countless similar organizations across the country, they witness to our Church’s call to give freely of ourselves to all our neighbors, not just to those who share our faith. Such groups receive generous support not only from those who can afford a ticket to the Al Smith Dinner, but from in-the-pews Catholics in parishes large and small. And they’re precisely the kind of groups that could be hardest hit by the administration’s mandate and the steep fines it imposes on those who do not comply.
No one should be fooled by recent efforts to portray the HHS mandate controversy as old news solved by the administration’s “compromise.” There is no compromise. The mandate has been officially adopted without change. The exemption for religious institutions remains so narrow that even the Missionaries of Charity’s Queen of Peace residence in Harlem doesn’t qualify. The one-year “safe harbor” for some conscientious objectors just delays a real solution until after the election. And the administration’s unworkable, barely-sketched compromise proposal – shifting the cost of objectionable coverage to insurance companies instead of imposing it on religious institutions themselves – doesn’t even satisfy staunch administration allies like the Catholic Health Association, much less the grammar schools, social service organizations, lay Catholic employers, and hospitals that have been forced to ask the courts to protect their basic religious freedom.
The administration’s compromise proposal doesn’t solve the core problem: the government still forces religious employers to facilitate access to goods and services to which they have serious religious objections. It doesn’t help the large number of self-insured religious organizations and lay Catholic employers who have religious objections to facilitating such coverage. And by leaving the narrow exemption in place, it solidifies a legal definition of religious activity as something that happens in a house of worship, but not in a soup kitchen or an AIDS clinic or a children’s home.
Nonetheless, the President insists that he’s resolved the issue with this widely-rejected compromise, and his story has gained traction. Vice President Biden’s false assertions at the debate only added to this misimpression. These are attempts to deflect attention from the serious religious liberty issues at stake, and at the moment they appear to be succeeding.
And that’s why inviting the President to speak at the Al Smith Dinner moves the ball forward. Just weeks before the election, the President, Governor Romney, and Cardinal Dolan will appear on stage together at an event that’s historically given above-the-fold treatment. Regardless of what’s said – whether it’s the traditional night of banter for a good cause or something more serious – the HHS mandate controversy will unavoidably be front and center, as will the charitable groups that will suffer the most if the mandate’s fines are enforced.
Think about it: Cardinal Dolan now has the President helping raise the money necessary to pay the fines his administration seeks to impose on the Catholic charitable groups that benefit from the dinner. Al Smith – often called the “Happy Warrior” – would be proud.
If you all you knew about the issue was what you heard at last night's debate, you'd have trouble figuring out what all the fuss is about the HHS mandate. The President said:
You know a major difference in this campaign is that Governor Romney feels comfortable having politicians in Washington decide the health-care choices that women are making. I think that’s a mistake. In my health-care bill, I said insurance companies need to provide contraceptive coverage to everybody who is insured.
That's backwards. It's the President's Affordable Care Act that has "politicians in Washington decid[ing] the health care choices that women are making." Under that law's HHS mandate, women can only purchase coverage that covers contraception, sterilization, and abortion-causing drugs -- even if they have moral objections to such coverage, or don't think their religious employers should be forced to provide it against their most deeply held beliefs. And don't forget about the abortion coverage mandate that's also part of the ACA. As Helen Alvare points out:
Polls show that most women don't want abortion in their health coverage (68 percent, according to a poll taken in fall 2009, as the health care debate began)....In the new health care exchanges, the new national health care law states that insurance companies "shall determine whether or not the plan provides coverage" of elective abortions. There is no role for the women being covered. Once an insurer decides to cover abortions, it is required to "collect from each enrollee in the plan ... a separate payment" for abortion, beyond the regular premium. ¤1303 (b)(2)(B)(i). In short, the federal government now forbids an opt-out from abortion coverage.
Last night Governor Romney missed an opportunity to highlight the importance of religious liberty and the degree to which it's threatened by the HHS mandate. Hopefully he'll do just that tomorrow night when he attends the Al Smith Dinner with President Obama at the invitation of New York's Cardinal Dolan.
At Politico, Kathryn Smith notes that opponents of the HHS mandate are "certainly piling up lawsuits. But whether that’s real momentum — or just a growing stack of legal briefs — remains to be seen."
It's important to put that stack of legal briefs in context. As Smith points out, over 100 plaintiffs have filed some 35 lawsuits throughout the country. Think about the scale of that effort: in court after court across the nation, plaintiffs of all kinds -- from presitigious universities to local parish elementary schools; from large private employers to small social service agencies -- have filed lawsuits challenging the mandate. This isn't merely a stack of briefs; it's a major civil rights initiative.
Those legal efforts demonstrate momentum for mandate opponents, but what's in the briefs provides even more evidence. Last Friday 13 states as well as representatives of a broad range of religious groups and public policy organizations, the Women's Speak for Themselves initiative (of which I'm a founder), and leading Catholic institutions filed amicus briefs in the Belmont Abbey and Wheaton College mandate case pending in the DC Circuit. The brief filed by Catholic Charities of Washington DC and other Catholic institutions
...details the severe burdens inflicted by the unconstitutional command that they insure free contraceptives, sterilization, and abortion-inducing drugs. These great institutions—which educate, feed, clothe, and serve millions—must plan now for the mandate’s millions of dollars in fines, crippling their budgeting, planning and hiring.
As the on-the-ground burdens imposed by the mandate start to become clearer, opposition to it can only grow. Beyond these legal efforts, rallies for religious liberty are taking place across the country on October 20th in a grass-roots movement to draw attention to these issues. In other words, momentum is building, both inside and outside the courtroom.
Smith points out that the back-and-forth about the HHS mandate in the vice-presidential debate drew renewed coverage of the issue. That attention is likely to increase with this week's Al Smith Dinner, in which President Obama and Governor Romney will appear on stage with Cardinal Dolan at a widely-covered event that raises money for the types of groups that will be most affected by the mandate's steep fines. The dinner will take place exactly one week after the debate in which Vice President Biden wrongly said that religious institutions wouldn't have to pay for, refer, or act as a vehicle for contraception, a claim forcefully rejected by the US Conference of Catholic Bishops, headed by none other than Cardinal Dolan.
A broad civil rights initiative; growing clarification of the on-the-ground impact of the mandate; nationwide grassroots rallies; and now Cardinal Dolan on stage with President Obama and Governor Romney. That looks like momentum to me.