Explaining the Lawsuit

The decision of 43 Catholic dioceses and organizations, including Our Sunday Visitor, to file a lawsuit against the federal government represents an epochal event in the history of religious liberty in the United States. 

Our country’s very founding owes to the desire of the first Americans to be free to worship and exercise their religion without government or majority interference. That right is given pride of place in our founding documents, as the First Amendment to the U.S. Constitution. 

In recent years, though, that right has been tested and probed by various state and federal laws and regulations, with serious consequences for Catholic agencies — including the closure of some social services. But the test that represents the greatest current threat to the existence and mission of Catholic organizations, schools, charities, social services and companies such as Our Sunday Visitor is the federal government’s mandate that employers provide or facilitate drugs and medical procedures that run counter to Catholic teaching. 

Although this mandate strikes hardest at Catholic organizations, it should cause concern in all religious believers, and indeed all people who value the Constitution and civil liberties. 

It also introduces a narrow and novel definition of religious institutions that would seek to be exempted from the mandate. To meet it requires an unprecedented and invasive government investigation into an organization’s beliefs, the beliefs of its employees and the beliefs of the people the organization serves. 

The goal of the next few pages — some of which is original and some of which is a compilation of materials from other sources — is to explain the lawsuit by answering common points of confusion and pointing to resources for further information — and also to identify what every Catholic Americans can do to help. 

Why is the Catholic Church trying to force its views on the rest of the country?

It is not. It is objecting to a mandate that seeks to force the views of a government agency on the Catholic Church. Eliminating the mandate or expanding its religious exemption to include Catholic organizations would not result in the restriction of any American who wants to buy or use contraception — the freedom to do so is a question settled by the Supreme Court. Nor would it restrict the freedom of any employer to cover it in health plans, or the freedom of insurance companies to write policies covering it. The issue here is whether the government can force Catholic organizations to furnish its own employees with coverage it considers morally and religiously objectionable. 

But surveys show that most Americans use contraception. Why shouldn’t the Catholic Church be required to accept that its teachings aren’t popular?

Asking that question betrays a willingness to allow the government to take upon itself the determination of which religious beliefs are worthy and which are not. But as the lawsuit itself notes, “The Constitution and federal law … stand as bulwarks against oppressive government actions even if supported by the majority of citizens.” Once that bulwark erodes, the rights of all Americans — particularly the weakest members of society — are placed in jeopardy. Further, even those who disagree with the Church should be able to recognize that it shouldn’t be forced to provide its employees coverage that violates its own teaching — that’s an important principle that protects many more than the Catholic Church. Finally, the mandate goes beyond contraception to abortion-inducing drugs and sterilization. 

Still, isn’t the Catholic Church trying to get out of playing by rules that apply to everyone else?

The Catholic Church in the United States has been a longtime proponent of universal access to health care, and warmly welcomed the recent legislative efforts to make that a reality in the United States. It is not seeking to be exempted from the general mandate of the Patient Protection and Affordable Care Act, as some, like Anabaptists, who conscientiously object to insurance funds, will be able to under an explicit exemption available them as a “recognized religious sect or division.” It is also worth pointing out that the Department of Health and Human Services estimates that nearly 100 million Americans are in plans that will not be subject to the “contraception mandate” because they are “grandfathered” under previous rules. So application of the HHS mandate has many exceptions — just not for Catholic organizations. 

But I heard that President Barack Obama solved the concerns of the Catholic Church and others by offering an “accommodation” for religious institutions. Why aren’t you happy?

First of all, there is no “accommodation.” In February, the Department of Health and Human Services finalized the mandate “without change.” So the unaltered mandate is the current law of the land — and will go into effect for some organizations as soon as Aug. 1. Second, the president’s description of the potential accommodation — passing responsibility for providing “free” morally objectionable drugs and procedures from employers to their insurers — doesn’t address religious liberty concerns. Many Catholic organizations, including Our Sunday Visitor, are “self-insured,” meaning they are both employer and health insurer, so will be in the same morally impossible situation they were before. And because there is no such thing as “free” drugs or medical procedures, passing the onus from an employer to the insurer is an accounting sleight of hand, not a substantive addressing of the concern. 

The mandate has an exemption for religious institutions. Why isn’t that enough?

Because it introduces a definition of religious institutions that is much narrower than others in the Constitution and federal law, and doesn’t in fact cover many Catholic institutions. It also requires an invasive government inquiry into the purpose, beliefs and practices of religious organizations, and an equally invasive investigation into the private religious beliefs of it employees and clients. It also favors some religions over others, in stark violation of the Constitution. As the lawsuit notes: “The U.S. government mandate favors religions that do not oppose abortifacients by putting the government imprimatur on those beliefs as correct. Similarly, the religious employer exemption favors religions that do not believe in serving all humanity, by exempting them from its requirements.” In sum, the narrow exemption forces an impossible and un-American situation: “In order to safeguard their religious freedoms, religious employers must plead with government bureaucrats for a determination that they are sufficiently ‘religious.’” That hasn’t been the case up until now, because “both the Constitution and the Religious Freedom Rights Act protect religious institutions, whether or not their purpose is the ‘inculcation of religious values’ and whether or not they ‘primarily’ serve and employ people with shared ‘religious tenets.’” 

Isn’t this a political move, filing such a lawsuit in an election year?

In fact, going to the courts, which exist to interpret and apply the law in a fair and impartial way, actually takes this issue out of politics. We have an independent judicial branch for the purpose of resolving disputes like these and protecting the liberties guaranteed by the Constitution. This is a case brought to protect core constitutional principles — the free exercise of religion and the separation of church and state. And this fight and its timing were chosen by the federal government, not the Church. With the White House saying that modifying the objectionable core of the mandate is off the table, and bipartisan legislative efforts unsuccessful, the courts are the only remaining option. 

Why are only Catholic organizations involved? Aren’t other religious organizations similarly impacted?

Every individual in our country, and every religious organization, should be concerned that the federal government believes it has the power to force its citizens to violate their consciences. Non-Catholic entities are similarly impacted by the mandate, and some of those entities are already involved in separate lawsuits. This particular lawsuit happens to include only Catholic entities, but we are hopeful that it will establish principles that protect all religious organizations. 

Catholic entities receive government money — shouldn’t they abide by government rules?

This mandate has nothing to do with government funding. The mandate applies to all employers, regardless of whether they receive government funds. Even if Catholic entities were to cease their many cooperative relationships with the government to serve the needy, those entities would still be subject to the mandate. 

Don’t 28 states already have a law mandating employers to provide contraceptive coverage?

The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the American Civil Liberties Union and exists in only three states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in all 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief. 

Our Sunday Visitor is self-insured; how does that affect the way the mandate applies to you?

Being self-insured means that we do not contract with an insurance company for our employees’ health care coverage — instead, we help pay for our employees’ medical expenses ourselves. So the mandate requires us to contribute directly to the costs of drugs and procedures that we believe are wrong. This also means that the proposed “accommodation,” which would have the insurer pay for the services, would do nothing at all for us. 

Why are 13 dioceses and archdioceses involved in the lawsuit? Aren’t they exempt from compliance with the mandate?

It is unclear. The exemption is worded in a way that makes it impossible to predict with certainty whether a particular religious entity is exempt. To be considered a “religious employer” for the purposes of the mandate, a Catholic organization must (among other requirements) serve “primarily” Catholics. But dioceses do not keep running tallies of the number of Catholics and non-Catholics they serve — they never even ask. As Catholics, we believe that our neighbors deserve our compassion because of their inherent human dignity, not because of their religious beliefs. For example, Catholic schools, which are often part of the diocese itself, educate students of all faiths. Do they “primarily” serve children who share our religious tenets? Is “inculcation” of religion “the purpose” of these schools? The answers to these questions are unclear, and can only be determined by an intrusive government investigation into the nature of religious beliefs of the people we serve. This inquiry itself violates the Constitution.

Religious Liberty Quotes

Cardinal Dolan
Cardinal Dolan
Cardinal Wuerl
“[I]f we concede that the government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.”
Father John Jenkins, president of Notre Dame.

“For the first time in this country’s history, the government’s new definition of religious institutions suggests that some of the very institutions that put our faith into practice — schools, hospitals, and social service organizations — are not ‘religious enough.’ Catholic institutions of the Archdiocese of Washington, including its schools and social service ministries, do not qualify as religious and the mandate forces them to provide coverage for drugs and procedures that we believe are morally wrong.”
Cardinal Donald Wuerl, archbishop of Washington, D.C.

“We have tried negotiation with the Administration and legislation with the Congress -- and will keep at it -- and there’s still no fix. Time is running out, and our precious ministries and fundamental rights hang in the balance, so we have to resort to the courts now.”

Cardinal Timothy Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops

“Franciscan University’s mission is and always has been to teach from the heart of the Church. The Obama administration’s mandate is a grave threat to our ability to carry out that mission. It makes it impossible for us to operate freely as a Catholic institution without overbearing and invasive governmental interference.”
Father Terence Henry, Franciscan University of Steubenville president.

John Norton is editor of OSV Newsweekly and co-author, with Austen Ivereigh, of How to Defend the Faith Without Raising Your Voice” (OSV, $13.95).

Further Reading: In brief: What you need to know about the suit