By Brian Fraga - OSV Newsweekly, 3/4/2012
The debate over religious freedom and government mandates on contraception continues to boil.
President Barack Obama’s Feb. 10 White House press conference — where he announced a revised policy ostensibly designed to shield religiously-affiliated employers from paying directly for contraceptives, abortifacients and sterilization in their health care plans — did not quell the concerns of the U.S. Conference of Catholic Bishops and its allies who still see serious problems with the government directive.
Led by Cardinal Timothy M. Dolan, the archbishop of New York and the USCCB president, the bishops’ conference has continued to call for legislation to rescind the federal Department of Health and Human Services’ mandate that all employer-provided health insurance plans cover, without deductibles or co-pays, all government-approved forms of birth control, including abortion-inducing emergency contraception.
The HHS mandate — set to take effect in February 2013 for all religious employers who were granted an extension to conform to the policy — is also the target of three lawsuits filed in federal court by the Becket Fund for Religious Liberty, which argues that the mandate violates the plaintiffs’ First Amendment and federal statutory rights to be free from government-imposed burdens on religious liberty.
The legislative and judicial avenues for amending or eliminating the controversial mandate will be set this year against the politically-charged backdrop of an election season where President Obama is looking to shore up his base, which includes progressive Catholics who helped him win his 2008 bid for the White House.
What happens next? Could the HHS mandate be rescinded, further amended or deemed unconstitutional? Could it be vacated if a new president is elected this November?
Trying to follow developments in this controversy is akin to trying to stay still in a fast-moving current, but the following analysis of the various complicated factors may provide a picture as to what could occur in the coming weeks and months ahead.
Brian Fraga writes from Texas.
While the mandate plays out in the messy, complicated and unpredictable realm of politics, lawyers will be filing legal briefs and planning to argue the issue on its merits in a court of law.
The Becket Fund for Religious Liberty, a Washington D.C., nonprofit, public-interest legal firm that specializes in religious freedom cases, has filed three lawsuits in the federal courts challenging the HHS mandate.
On Nov. 10, 2011, the Becket Fund filed suit in U.S. District Court in Washington, D.C., on behalf of Belmont Abbey College, a Catholic liberal arts college in North Carolina founded by Benedictine monks.
The legal firm filed another lawsuit in the same court on Dec. 12, on behalf of Colorado Christian University, an evangelical college located near Denver.
The day before Obama’s proposed compromise measure, the Becket Fund filed a third lawsuit in U.S. District Court in Alabama on behalf of the Eternal Word Television Network (EWTN).
The lawsuits challenge the HHS mandate as an infringement against the First Amendment’s guarantee of free exercise of religion.
Eric Baxter, senior counsel for the Becket Fund, told OSV the mandate is unconstitutional because it would place religious employers in a position to violate their consciences by having to carry health insurance that would provide contraceptives, sterilization and abortifacients such as Ella and Plan B, commonly known as the morning after pill.
“That, of course, is a violation of conscience not just for Catholics, but for many religious believers, Christian and non-Christian,” Baxter said.
The Becket Fund argues that the government must meet a high standard in order to infringe upon First Amendment rights. The government has to prove it has a compelling interest and that its actions are narrowly-tailored to be as least intrusive as possible.
The HHS mandate fails to meet those conditions, Baxter argues, because 90 percent of employers’ health insurance programs already cover contraception. The government also already spends millions of dollars to widen contraceptive access through Title X Family Planning Plan funds as well as via grants to Planned Parenthood, Baxter said.
“There really is no compelling reason to force the small percentage of employers, who object on religious grounds, to also provide contraceptive coverage,” Baxter said.
“If the government did have a compelling interest in making sure that there are no gaps in contraceptive coverage, you still can’t show that this (mandate) is the least intrusive way of doing that. There is no reason to force religious employers in a manner that violates their moral consciences.”
As of Feb. 18, the U.S. Department of Justice had only filed one response, in the Belmont Abbey lawsuit. The government asked the court to dismiss the suit because the administration had indicated that it will “propose and finalize changes to the regulations” at a later date. The government’s lawyers did not directly address the Becket Fund’s challenges to the mandate’s constitutionality.
“Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,” said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty. “Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.”
Baxter said he expects a hearing on the government’s motion to dismiss, and believes that a judge will deny that request. He also believes the law is on the plaintiffs’ side.
“I’m fairly confident that we will prevail,” Baxter said.
Meanwhile, several state attorneys general have signed onto a joint letter from Nebraska Attorney General Jon Bruning to U.S. Secretaries Kathleen Sebelius (Health and Human Services), Timothy Geithner (Treasury) and Hilda Solis (Labor) threatening a lawsuit if the “unconstitutional mandate be promulgated.”
The attorneys general said the mandate represents “an impermissible violation of the Constitution’s First Amendment virtually unparalleled in American history,” adding that the mandate “conflicts with the most basic elements of the freedoms of religion, speech, and association, as provided under the First Amendment.”
The Becket Fund and the attorneys general also said the mandate’s current exemption is unacceptable because it would offer exemptions only for a religious employer that has “the inculcation of religious values as its purpose,” “primarily employs persons who shares its religious tenets,” and “primarily serves persons who share its religious tenets.”
Cardinal Dolan told Catholic News Service that the bishops have the support of “very prominent attorneys” who have volunteered to represent them.
The archbishop also added that he and his fellow bishops are drawing inspiration from the Supreme Court’s recent unanimous decision in Hosanna-Tabor v. EEOC, where the high court ruled against the Obama administration in saying the federal government has no authority to tell a church who it can consider a minister.
However, legal expert Timothy S. Jost, a law professor at Washington and Lee School of Law, said the HHS mandate is not an unconstitutional breach on religious liberty, but rather “an attempt to accommodate a serious public health need and a sincerely held religious and moral conviction.
“The regulation does not require anyone to use contraception nor does it require any religious organization that objects to contraception to pay for it. It neither prohibits nor requires a religious belief or practice,” Jost said.
Still, 25 University of Notre Dame faculty members, led by law professor O. Carter Snead, the university’s leading ethics expert, along with prominent scholars from other institutions, signed a letter stating that the president’s latest version of the HHS mandate still constituted a “grave violation of religious freedom and cannot stand.”
“It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying ‘five day after pill’ pursuant to the insurance contract purchased by the religious employer,” the statement said.
Bishops will keep fighting
“The only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.”
The U.S. Conference of Catholic Bishops made that declaration hours after the president’s Feb. 10 press conference, which followed weeks of mounting pressure from the bishops and many other Catholic and religiously-affiliated institutions, including several progressive Catholic voices who felt the administration had overreached.
Under the new policy, health insurance companies will be required to reach out and offer free contraceptive coverage for employees at religiously-affiliated institutions. Obama said the religious employers will not have to pay for or directly provide those services.
“Religious liberty will be protected, and a law that requires free preventive care will not discriminate against women,” he said.
On Feb. 10, the bishops conference first issued a cautious preliminary statement, saying that it appeared the president’s announcement was a “first step in the right direction” while noting that the USCCB staff was still analyzing the policy.
A few hours later, the bishops issued a statement noting that the revised mandate did not exempt religious insurance companies and self-insuring religious employers.
The policy also does not protect the conscience rights of religious and secular businesses and nonprofits, as well as individuals, said the bishops’ conference, which argued that the president’s proposal still continued to involve “needless government coercion of religious people and groups to violate their most deeply held convictions.”
“Any government mandate that violates a long-held belief of a church, even an individual, is a very serious infringement on religious liberty as a matter of principle. It’s not just bad policy,” Bishop William E. Lori of Bridgeport, Conn., chairman of the bishops’ Ad Hoc Committee for Religious Liberty, told OSV.
He added the bishops plan to come out with a “master statement” to provide an overview of the HHS mandate controversy and that would serve as a reference point for all Catholics. “It will be a sort of a little mini-handbook so that we can keep driving home some essential points. It will be a way of keeping the whole discussion on point, on message.”
Bishop Lori told OSV the bishops will exhaust every available legal avenue to challenge and overturn the mandate. If next year arrives and the policy remains in place, Bishop Lori said he and many other Catholics may find themselves on the wrong side of the law.
“If it comes to a point where all things have been exhausted and we are faced with the question of violating our consciences, or shutting down our ministries, I would not rule out the possibility of just saying, ‘No, we’re not going to do this,’ and taking the consequences.
“At the end of the day, we really cannot violate our consciences,” Bishop Lori said.
“The fact is we have to go back to the beginning,” said John Carr, executive director of the U.S. bishops’ Department of Justice, Peace and Human Development, during the opening session of the Catholic Social Ministry Gathering on Feb. 12.
“We need the administration to revise it, we need the Congress to repeal it or we need the courts to stop it,” Carr said.
Respect for Rights of Conscience Act
The U.S. bishops’ conference renewed its call Feb. 10 for Congress to pass, and for the Obama administration to sign, the Respect for Rights of Conscience Act.
The legislation is sponsored in the House of Representatives — H.R. 1179 — by U.S. Rep. Jeff Fortenberry (R-Neb.), and it has 139 signed cosponsors, who include Chris Smith, (R-N.J.), Peter King (R-N.Y.) and Michele Bachmann (R-Minn.)
Sen. Roy Blunt (R-Mo.) has sponsored the Respect for Rights of Conscience Act in the Senate. The bill’s co-sponsors include Mitch McConnell (R-Ky.), John McCain (R-Ariz.) and Orrin Hatch (R-Utah).
Blunt issued a statement after Obama’s Feb. 10 press conference calling the president’s proposal “an accounting gimmick” and vowing to work with lawmakers to reverse “this unconstitutional mandate in its entirety.”
“It’s still clear that President Obama does not understand this isn’t about cost — it’s about who controls the religious views of faith-based institutions. President Obama believes that he should have that control. Our Constitution states otherwise,” Blunt said.
The Respect for Rights of Conscience Act would repeal the controversial contraception mandate and amend the 2010 Patient Protection and Affordable Care Act to allow health insurance companies the ability to decline to cover specific items and services, without penalty, that are contrary to the religious convictions of the employer offering the plan.
The legislation would create a private cause of action to allow people and entities to seek judicial relief if their rights were violated. The law would also designate the Office for Civil Rights of the U.S. Department of Health and Human Services to receive and investigate complaints of discrimination.
The White House has called the legislation “dangerous and wrong.”
Cardinal Dolan told The Associated Press in Rome that the bishops will work hard to support the legislation’s passage.
“I couldn’t see why the president would have any consternation, because he said to me that religious freedom remains sacrosanct. Well, let’s legislatively guarantee it,” the cardinal said.
“If the president said he wants to protect religious liberty, then he should sign this bill,” Fortenberry told OSV.
Fortenberry introduced the Respect for Rights of Conscience Act in March 2011. He said the bill would restore a long-standing principle in health care vacated by the 2010 federal health care law that Americans have the right to provide, purchase or enroll in health coverage that is consistent with their religious beliefs and moral convictions.
“That is a fundamental American right and it is being trampled on by this mandate,” Fortenberry said.
“I think the issue here is whether the government can force people into paying for something that violates their moral precepts. This bill says government cannot coerce anyone into doing that.”
However, in the Senate, Majority Leader Sen. Harry Reid (D-Nev.) did not allow the Respect for Rights of Conscience Act to come up for a vote on Feb. 15. Reid used a parliamentary procedure that prevented other senators other than himself from offering amendments. Reid also criticized Blunt’s legislation as “senseless” and premature because the mandate’s details had not yet been made clear.
Lawmakers opposed to the mandate have vowed to press their efforts. In addition to the Respect for Rights of Conscience Act, Sen. Marco Rubio (R-Fla.) has introduced the Religious Freedom Restoration Act — which has 20 co-sponsors in the Senate — that would create a religious exemption under the HHS mandate.
Fortenberry said Congress could try to pass a conscience protection law as a stand-alone bill or as an amendment to a larger piece of legislation. He said a new law is needed because the president’s revised policy of Feb. 10 is inadequate.
“It was no compromise. It was no accommodation. It was a continued assault on the principle of religious freedom,” said Fortenberry, who argued that the mandate “continues to entangle” religious employers in a morally problematic situation.
“That is why we need the broader legislation,” he said.
The mandate controversy gave the Republican presidential candidates an issue to hammer Obama. Former Massachusetts Gov. Mitt Romney, Rick Santorum, the former U.S. senator from Pennsylvania, U.S. Rep. Ron Paul (R-Texas) and Newt Gingrich, the former Speaker of the House, all assailed the president for violating religious freedom, and each vowed to take action against the mandate if elected.
However, current political trends do not seem to suggest that the HHS mandate will be an issue even during the primaries, said Stephen Schneck, director of the Institute for Policy Research & Catholic Studies at The Catholic University of America.
“I just don’t think that even the most religiously oriented GOP primary voters are going to get all fired up about opposing a contraception mandate for employers,” he said, though adding that it could still feed into a “larger narrative” where Republican candidates can say the Democratic Party is waging a war on religion.
The battle lines in that scenario were drawn during a Feb. 16 House committee hearing with a title asking whether the administration had “trampled on freedom of religion and freedom of conscience.” Democratic members of the panel questioned the hearing’s premise, charging Republicans with promoting a “conspiracy theory” that the government is targeting religious liberty.
Nicholas Cafardi, dean emeritus and professor of law at Duquesne University, said during a Feb. 15 press conference that he opposed the war analogies because it erodes the ability to dialogue.
“It’s also the kind of dialogue that encourages people to bring guns to political rallies,” Cafardi said. “We don’t need that kind of language from holy people.”
Ken Sherrill, a political science professor at Hunter College in New York City, told OSV that Obama’s policy proposal regained for him the support of prominent Catholic individuals and entities that were crucial for his election in 2008, as well as the subsequent passing of the 2010 federal health care law.
“I think the way this has played out over the past few weeks, with Obama reaching out with what appears to be a compromise, and the bishops taking a hard line has sort of probably helped Obama more than it’s hurt him,” he said.
“I think the original impact was that some progressive Catholics were taken aback by the ham-handed way in which it was done,” Sherrill added. “But the way it’s since played out, you saw both sides reinforce their bases.”
Before the Feb. 10 press conference, the White House distributed the text of the president’s proposal, along with a statement from Sister Carol Keehan, president and chief executive officer of the Catholic Health Association of the United States, whose support played a critical role in passing the health care reform bill.
Sister Keehan said CHA was “very pleased” with the White House announcement that a resolution had been reached “that protects the religious liberty and conscience rights of Catholic institutions.”
(But in a second CHA statement a few days later, the organization acknowledged “there are many unanswered questions about specifics” and said it was undertaking a review of the proposed rules.)
Other prominent Catholics have also broken with the bishops and spoken out in favor of the president’s policy.
Schneck said the president’s accommodation provides a mechanism to establish greater moral distance between Catholic institutions and contraception “than we have had before.”
“There has been a good will effort to resolve this, and we will continue to stay in dialogue,” said Sister Anne Curtis of the Institute Leadership Team of the Sisters of Mercy of the Americas.
Charles C. Camosy, assistant professor of Christian ethics at Fordham University in New York, said the public perception might be that the bishops are trying to pile on Obama in an attempt to get him out of office, especially since there was no similar outcry when 28 states passed similar laws in recent years requiring contraception coverage.
“Though in the public discourse almost all that matters is how ‘this might look,’ I think on the substance/ethics, this [accommodation] was a significant walk back,” he said.
“The level of distance in cooperation with evil is significant, and the main issue for (the bishops) appeared to be scandal. The bishops could say, ‘How can people take us seriously on contraception when we explicitly provide it for our employees?’ On that issue, this would be a real shift since they no longer have to do that.”
However, the USCCB says the bishops are not partisans, and add that they and their staff read the HHS regulations before evaluating them.
“The bishops did not pick this fight in an election year. Others did. Bishops form their positions based on principles — religious liberty for all and the life and dignity of every human person — not polls, personalities or political parties. Bishops are duty bound to proclaim these principles, in and out of season.”
In an election year, getting a politically sensitive bill dealing with contraception to pass through Congress, never mind securing Obama’s signature, is a tall order.
The Obama administration “is very intransigent. They’re very dug in on this,” Fortenberry said.
Jack Lew, the White House Chief of Staff, defended the administration’s revised mandate during a Feb. 12 interview on “Fox News Sunday.”
“We have set out our policy,” Lew said. “We are going to finalize it in the final rules, but I think what the president announced on [Feb. 10] is a balanced approach that meets the concerns raised both in terms of access to health care and in terms of protecting religious liberties, and we think that’s the right approach.”
Rep. Fortenberry said the White House is making a political calculation in maintaining its stance on mandated contraceptive coverage.
The poll numbers would seem to support its viability as a political strategy.
The controversy around the mandate has galvanized many within the Catholic community, but a Feb. 14 Gallup poll indicates that the issue has not greatly affected how most rank-and-file Catholics view the president, making it unlikely that the mandate controversy will be a deciding factor in this year’s general elections.
About 46 percent of Catholics polled by Gallup after the Feb. 10 press conference approved of Obama’s job performance. The previous week, the Catholic approval rating for Obama was 49 percent, a change within the margin of sampling error.
A Feb. 10 poll by the Public Policy Polling organization also found that 57 percent of Catholic voters who were surveyed supported Obama’s revised policy, including 59 percent of Catholic women. More than half said they opposed congressional attempts to reverse the policy.
“Most of the political firestorm is now over,” said Schneck of Catholic University. Schneck told OSV that he believed Obama’s Feb. 10 policy defused much of the political rancor in the weeks leading up to it.
“My gut feeling is that this, as an issue, does not have political legs. I don’t think we’re going to have the same level of intensity that we’ve seen in the last couple of weeks [before the announcement]. That was effectively resolved on [Feb. 10],” Schneck said.
Still, before Obama’s proposed compromise, Catholics across the political spectrum were showing an uncommon unity in their opposition to a government edict mandating contraceptive coverage. Fordham’s Camosy told OSV that such unity gave Republicans an opening with Catholic swing voters to paint the Obama administration as singling out Catholics.
“Catholics are total swing voters and could make the difference in close elections in places like Ohio, Pennsylvania, Wisconsin, and more,” Camosy said, adding that the mandate was “a bad unforced error by the administration when things were going so well for them with the employment numbers and the lack of any strong Republican candidate.”
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