President Barack Obama’s re-election on Nov. 6 virtually guarantees that legal battles will continue for religious employers who oppose the federal government’s mandate that they must provide health insurance coverage for contraception, abortifacients and sterilization. 

HHS mandate
A statue of the Sacred Heart of Jesus is seen in the lobby of the St. Louis headquarters of O’Brien Industrial Holdings. A federal court ruling that rejected the Catholic business owner’s challenge to a federal mandate that employee health insurance include contraceptive coverage is being appealed. CNS photo by Jerry
Naunheim Jr.

There are currently 40 pending cases in the federal courts, where 110 plaintiffs are challenging the constitutionality of the U.S. Department of Health and Human Services’ mandate. 

Those cases — at least those for religiously affiliated nonprofits — could be rendered moot if the Obama administration amends the HHS mandate to widen the exemption for certain religious organizations, such as Catholic hospitals and universities. The administration has vaguely said it will reach an “accommodation” with the religious nonprofits by August 2013. 

“We should see, before too long — in the next couple of months — what comes out of that administrative process,” said Richard Garnett, associate dean for faculty research and law professor at the University of Notre Dame. 

Commenting on the future of the HHS mandate, Garnett told Our Sunday Visitor that “the only way this ends is if the mandate is substantially revised, especially if the religious employer exemption is substantially changed. ... Otherwise, the litigation will continue for many years.”

Low expectations

Mark L. Rienzi, an assistant law professor at the Columbus School of Law at The Catholic University of America, told OSV that the administration has thus far not shown a willingness to amend the mandate. 

“So far, they’ve left the burden on everybody’s shoulders, and have only said that at some point in the future they may do something,” Rienzi said. 

Peter Breen, executive director and legal counsel at the Thomas More Society, a Chicago-based national public-interest law firm that is representing at least two clients in HHS cases, told OSV that he does not hold out much hope that any changes to the mandate will satisfy religious liberty concerns. 

“It appears the issues will have to be dealt with in the various courts across the country,” Breen said. “I’m not seeing that we’ll get around this issue, short of litigation.” 

The mandate will probably have to be dealt with through the courts because of the low likelihood that the administration will offer satisfactory policy changes and the fact that the Democrats retained control of the U.S. Senate, which almost certainly blocks any attempts by the Republican-controlled House of Representatives to rescind or significantly alter the mandate. 

Breen added that it remained unclear if the “election calculus translates into action or non-action at the level of the House of Representatives.” 

“We don’t quite know if or what a legislative compromise would look like, or if it’s possible,” Breen said.

A look at the suits

At least 30 of the pending lawsuits have been filed on behalf of nonprofits, which include several Catholic organizations, including dioceses, universities such as Notre Dame, hospitals, and media outlets such as Our Sunday Visitor. 

The federal government’s lawyers have not responded to the merit of those lawsuits, which basically argue that the plaintiffs’ First Amendment rights to freely exercise religion are being violated by a mandate that compels them to cover, without employee co-pays or deductibles, all forms of birth control approved by the Food and Drug Administration. 

The plaintiffs also say the HHS mandate violates the 1993 Religious Freedom Restoration Act, which is aimed at preventing laws that burden the free exercise of religion. When a law conflicts with religious exercise, the government must prove that the law addresses a compelling public interest, and that there are no other ways to pursue that interest in a less intrusive manner. 

“These drugs [contraceptives] are already widely available and widely used,” Rienzi said. “There is no reason to force unwilling people to be involved.” 

However, citing the promised accommodations, the government’s lawyers have sought to have the nonprofits’ cases thrown out of court for being premature. Two lawsuits — filed on behalf of Belmont Abbey, a Catholic liberal arts college in North Carolina, and Wheaton College, a Christian college in Illinois — have already been dismissed. The D.C. Circuit Court of Appeals is scheduled to review those dismissals this month. A lawsuit by the Diocese of Nashville and other Catholic entities in Tennessee was dismissed this month for being premature. The entities are weighing whether or not to appeal. 

The court rulings of note that have been issued so far deal with cases in which private employers, citing religious convictions, argue the HHS mandate also violates their religious freedoms. 

In two private employer cases, federal judges have granted preliminary injunctions that halted — for now — the HHS mandate’s requirements from being forced upon Hercules Industries, a heating, ventilation and air-conditioning manufacturer in Colorado, and Weingartz Supply Company, an outdoor power company in Michigan.  

However, on Nov. 19, a federal judge denied a request from Hobby Lobby, the Oklahoma-based arts-and-crafts chain, and its sister company Mardel for an injunction against the mandate. 

In his ruling on the case, U.S. District Judge Joe Heaton wrote, “Plaintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion.” 

Hobby Lobby’s attorneys said the companies will appeal the ruling. 

A fourth private business, O’Brien Industrial, a St. Louis-based holding company, lost its motion for a preliminary injunction in late September. Autocam and Autocam Medical, based in Michigan, is also seeking a preliminary injunction.

Religious protections

The government’s central argument in the private employer cases is that those businesses, as secular for-profit entities, do not by definition exercise religion in a manner that is protected by the First Amendment. Garnett said federal religious freedom protections apply to nonprofits and private businesses. Rienzi said the Obama administration has made it “very clear” that it thinks people check their religious liberty at the door when they go to work. 

“The administration has said it is not open to the possibility that somebody who runs a Catholic bookstore or prints Bibles for a living has any religious freedom, and that’s contrary to the law,” Rienzi said. 

The Supreme Court may have to decide whether the mandate violates religious liberty. If the appeals courts generally agree one way or the other, Garnett said the Supreme Court would probably not step in. He added: “These cases will percolate, as the lawyers say.” 

Rienzi said he believes that as the courts consider the arguments, the results will be largely positive for the plaintiffs. “It’s not a difficult legal question,” he said. “The law is pretty clear, and it’s against the government.” 

Brian Fraga writes from Massachusetts.