Final push is on for amendment of HHS mandate

Three months before the federal government’s final version of its contraceptive mandate takes effect, the nation’s Catholic bishops, nonprofits and lawmakers continue to push to protect religious liberty and conscience rights. 

Heeding the bishops’ call, more than 445,000 comments have been filed with the U.S. Department of Health and Human Services, with the majority of those expressing opposition to the mandate that employers must provide health insurance that covers contraceptives, abortifacients and sterilization without copays or deductibles. 

Approximately 392,000 comments were filed during the government’s most recent comment period that ended April 8. The Sunlight Foundation, an independent government accountability organization, said the provision has drawn the most comments ever for any government regulatory proposal. 

Addressing three branches

Anthony R. Picarello Jr., general counsel for the U.S. Conference of Catholic Bishops, told Our Sunday Visitor that the sheer volume of comments could persuade President Barack Obama’s administration to further amend the mandate to satisfy religious freedom concerns. 

“More importantly, this is one of the few available avenues for making a difference,” he said. “This is a regulatory process. It’s not exactly bathed in sunlight. This isn’t a matter of calling your senator or your congressman. The way to change the regulation is with the executive branch.” 

On March 20, the USCCB filed its 26-page comment with HHS, arguing that the mandate is virtually unchanged from prior versions and that its exemptions for religious entities still excludes most religious organizations and does not remove the burden on the free exercise of religion. 

Picarello added that the bishops are aggressively implementing a strategy to address the mandate in all three branches of the federal government. 

The most activity has been in the judiciary. As of late April, there had been 58 lawsuits, representing more than 190 parties, filed in the federal courts, according to the Becket Fund for Religious Liberty, which is representing eight plaintiffs. 

Thirty religious nonprofits — including hospitals, charities, colleges and Catholic dioceses — have filed lawsuits against HHS Secretary Kathleen Sebelius over the mandate. Of those, 22 have been dismissed by judges for being premature because of the federal government’s promises to amend the mandate to address the religious liberty issues. 

To date, not one nonprofit lawsuit has been decided on the merits; judges have only dealt with procedural issues. Four cases are in abeyance, which means the judges are awaiting action from the federal government before deciding whether those cases will proceed. 

Lawsuits filed by the Eternal Word Television Network, Franciscan University of Steubenville, Ave Maria University and the University of Notre Dame, among others, have been dismissed on procedural grounds. A lawsuit filed by Our Sunday Visitor, the Diocese of Fort Wayne-South Bend, Ind., and other parties is still awaiting a procedural ruling.

Private lawsuits

In the 29 lawsuits brought by private, for-profit businesses, judges have addressed the legal merits in 25 of those cases, with 19 plaintiffs being awarded injunctive relief, meaning they don’t have to abide with the mandate while their cases are pending. 

On April 19, U.S. District Court Judge Joy Flowers Conti in Western Pennsylvania granted a preliminary injunction for Seneca Hardwood Lumber Company, a for-profit company owned by a Catholic family. 

In the ruling, Conti said there was a “strong public interest in protecting fundamental First Amendment rights.” 

“Plaintiffs showed that they are likely to succeed on the merits of their RFRA (Religious Freedom Restoration Act of 1993) claim; they will suffer irreparable harm absent injunctive relief; and the public interest favors granting injunctive relief,” she wrote. 

Hobby Lobby Stores Inc., one of the largest for-profit businesses that have filed suit against HHS, has a May 23 hearing before the 10th Circuit Court of Appeals in Denver, Colo. The full court will consider whether or not to halt enforcement of the mandate against Hobby Lobby, which lost a previous motion for injunctive relief. 

“We are grateful that the court granted Hobby Lobby’s petition,” said Kyle Duncan, general counsel for the Becket Fund, which is representing Hobby Lobby, a Christian-operated business owned by the Green family. 

“Full court review is reserved only for the most serious legal questions,” he said. “This case asks whether the First Amendment protects everyone’s right to religious freedom, or whether it leaves out religious business owners like the Greens.” 

Hobby Lobby faces fines of up to $1.3 million a day if it does not comply with the mandate. Private employers like Hobby Lobby are not covered in the temporary “safe harbor,” an exemption from the mandate given to religious nonprofits. The safe harbor expires when the final version of the mandate takes effect Aug. 1. 

In early February, the Obama administration unveiled new rules that it said would accommodate religious nonprofits by having employees enroll in separate individual policies — at no cost to the employer — that would only cover contraception. However, the USCCB and other entities including the Becket Fund said the mandate still defines religious employer in a narrow sense and makes no exemption for individuals and stakeholders with moral objections to contraception. 

Jesuit Father Thomas Reese, a senior fellow at the Woodstock Theological Center at Georgetown University, said the Obama administration will not allow exemptions for private employers. 

“There is no way that is going to happen,” he said. “I think they are just going to have to meet in court to decide that one.”

Conscience protection

Federal lawmakers are seeking a legislative avenue to address the issue. More than 100 co-sponsors signed onto the Health Care Conscience Rights Act, a bill introduced March 4 by U.S. Reps. Diane Black, R-Texas; Jeff Fortenberry, R-Neb.; and John Fleming, R-La. 

It would grant full exemptions for individuals and health care entities opposed to the mandate on religious grounds.  

“We have to come together to protect Americans’ most basic rights — our rights of conscience and religious freedom. The bill simply restores the basic rights in health care that were widely accepted before the implementation of the new health care law,” Fortenberry said during a March 5 press conference. 

Cardinal Sean O’Malley, archbishop of Boston and chairman of the USCCB’s Committee on Pro-Life Activities, wrote a letter March 8 to members in the U.S. House of Representatives asking them to co-sponsor the Health Care Conscience Rights Act. 

“In short, a failure to provide clear and enforceable protection for a right of conscience could undermine Americans’ access to quality health care,” Cardinal O’Malley wrote. “Providers of health care, as well as those who offer or purchase insurance, should not face an unacceptable choice between preserving their religious and moral integrity or participating in our health care system.” 

Brian Fraga writes from Massachusetts.