In the largest religious freedom challenge to the federal government’s “contraception mandate” to U.S. employers, 43 Catholic dioceses and organizations simultaneously filed suit May 21 in a dozen different federal courts across the country. 

Father Jenkins

Sebelius

The plaintiffs include Our Sunday Visitor, the University of Notre Dame, the Archdiocese of Washington and the Archdiocese of New York. The religious non-profits are being represented pro bono by Jones Day, a 2,400-lawyer international firm founded in Cleveland, Ohio, and ranked one of the largest law firms in the world. 

At issue are Health and Human Services regulations, first announced last August, that require employers to provide abortion-inducing drugs, sterilization and contraceptives to their employees. 

The 68-page filing in the lawsuit that includes Our Sunday Visitor notes that abortion-inducing drugs, sterilization and contraception “are, and will continue to be, freely available in the United States, and nothing prevents the government itself from making them more widely available. But the right to such services does not authorize the government to force the plaintiffs to violate their own consciences by making them provide, pay for and/or facilitate those services to others, contrary to their sincerely held religious beliefs.” 

The suit asserts that the government mandate violates the First Amendment and the Religious Freedom Restoration Act. It also asserts that the mandate was proposed and established in violation of the Administrative Procedures Act, the federal law spelling out the process by which government regulations must be created. 

It asks that the courts declare the mandate unconstitutional and “vacate” it entirely.

Added significance

That the University of Notre Dame is a party to the suit adds symbolic significance. The school controversially invited President Barack Obama to give its 2009 commencement address and awarded him an honorary doctorate. In his speech, Obama promised to work for “a sensible conscience clause.” 

In a statement on the lawsuit, university President Father John Jenkins vowed that Notre Dame “will continue in earnest our discussions with administration officials in an effort to find a resolution, but, after much deliberation, we have concluded that we have no option but to appeal to the courts regarding the fundamental issue of religious freedom.” 

“This lawsuit raises two questions,” said Gregory Erlandson, president of the Our Sunday Visitor Publishing Division. “Whether the government can use such criteria to define the religiousness of an organization, and whether the government may force religious institutions and individuals to facilitate and fund services which violate their religious beliefs.” 

Our Sunday Visitor employs more than 300 people. It consists of a Publishing Division, Offertory Solutions Division and Our Sunday Visitor Institute, which funds charitable works and other Catholic apostolates and programs around the country and in virtually every diocese. 

Like most U.S. companies its size, Our Sunday Visitor is self-insured, so it would not be covered by the Obama administration’s Feb. 10 proposed “accommodation” to require the health insurance companies to offer “contraceptive care free of charge.”

Reactions to suit

Although the White House and the Department of Health and Human Services declined to comment, Planned Parenthood Federation of America issued a statement decrying the lawsuit. 

“Access to birth control is a critical health and economic concern for American women,” said Cecile Richards, Planned Parenthood’s president. “It is unbelievable that in the year 2012 we have to fight for access to birth control. Yet this lawsuit would make it harder for millions of women to get birth control. Insurance companies should cover birth control just like any other preventive prescription, as the independent Institute of Medicine (IOM) recommended.” 

However, Mary Ann Glendon, a Harvard law professor and former U.S. ambassador to the Holy See, pointed out in a Wall Street Journal commentary that the lawsuit is first and foremost about threat to religious liberty. 

“Religious freedom is subject to necessary limitations in the interests of public health and safety. The HHS regulations do not fall into that category. The world has gotten along fine without this mandate — the services in question are widely and cheaply available, and most employers will provide coverage for them,” she said. “But if the regulations are not reversed, they threaten to demote religious liberty from its prominent place among this country’s most cherished freedoms.” 

John Norton is editor of OSV Newsweekly.