On May 21 the Catholic Church in the United States went to court.
In an unprecedented spate of lawsuits filed throughout the country, the Archdioceses of New York and Washington, along with such leading Catholic institutions as Notre Dame and Catholic Charities, joined a host of Catholic institutions seeking to have judges rule that the Obama administration’s contraception, abortion and sterilization mandate violates religious liberty.
Among those institutions already in the fray were Belmont Abbey College, Franciscan University, EWTN and at least two Catholic businessmen.
There are altogether approximately two dozen lawsuits pending. Scores of Catholic institutions are plaintiffs. All of them are represented by experienced counsel. Those which sued on May 21, for example, are all being represented pro bono by arguably the nation’s best law firm, Jones Day.
Now that the dust has settled on the filings and the initial burst of media attention has slackened, it is time to ask: What can we expect from these lawsuits? Is the Church likely to prevail? If so, upon what grounds?
The first thing to understand, however, is that it will be good news if these lawsuits go nowhere. There are three possible scenarios in which the Church’s institutions could win without achieving victory in court.
One scenario will play out no later than June 29. By that date the Supreme Court will decide whether the whole Obama health-care reform is unconstitutional. The issue in that case has nothing to do the contraception mandate; it is about requiring everyone to have health insurance by 2014. But, because HHS issued the contraception requirement under the authority of the larger reform, if that reform goes down the contraception mandate goes down with it.
The second scenario will play out on Nov. 6. If Mitt Romney is then elected our nation’s 45th president, he will soon thereafter announce that he is rescinding the mandate.
If neither the Supreme Court nor Romney moots the pending spate of lawsuits, the third possibility is that Obama might invite Church representatives to the bargaining table, to hammer out a more generous exemption for religious institutions from the mandate. The administration presently insists that the exemption is settled. But that is likely to change if things start going badly for HHS in court. How likely is that?
The two dozen lawsuits vary in important details. But all the plaintiffs say in one way or another that complying with the government’s requirement to (in the words of Notre Dame’s case) “pay for, provide, and/or facilitate” abortion-inducing drugs, sterilization and contraception violates sincerely held Catholic beliefs, and so illegally compromises religious liberty.
Some particular charges of illegality in these cases swing free of faith. Many of the lawsuits allege violations of the government’s internal procedures for promulgating legal rules like the mandate. Many say that free speech rights are violated, too.
All of the lawsuits, though, make several claims about religious liberty. Some of these depend upon the Constitution’s First Amendment. More specifically, these allegations concern the constitutional clauses against government “establishment” of religion and against “prohibiting” religion’s “free exercise.”
Each of these clauses promises the possibility, but not the likelihood, of success.
The U.S. Conference of Catholic Bishops’ Ad Hoc Committee on Religious Liberty, chaired by Baltimore Archbishop William Lori, articulated the core of both these arguments when it asserted that, by limiting exceptions to houses of worship and thereby sweeping Church schools, hospitals and social services within the mandate, the government was deciding which institutions were “religious enough” and which were not.
There is an important sense in which this jarring way of stating things is accurate.
A few judges might agree that the First Amendment prevents the government from making this sort of selection. It seems to me, however, that any exemption on grounds of religious liberty — even one much larger than that presently on offer from HHS — involves some line-drawing at the boundary which could be described as separating those “religious enough” to qualify from those who are not.
I think that most judges will see this, and will say (as judges often do in such circumstances) that the bishops’ argument “proves too much.”
The most important charge in all the lawsuits, and the one very likely to be the winning argument, does not depend upon the First Amendment. It is grounded in a 1993 Congressional enactment called the Religious Freedom Restoration Act (RFRA). By this law Congress required all other federal laws (including the contraception mandate) to respect religious freedom.
Congress did so by establishing that any law which “substantially burdens” someone’s “exercise of religion” must meet a very high standard of justification. That standard holds that the “substantial burden” must be imposed in order to achieve a “compelling” government goal, and that there is no other means of achieving that goal which is less restrictive of religious liberty.
There is no doubt about the asserted goal of the mandate. Obama put it plainly enough on Feb. 10: “Every woman should be in control of the decisions that affect her own health. Period.”
Now, whatever one might think what this statement more exactly means, and apart from one’s own moral evaluation of it (as “compelling” or otherwise), my judgment is that most courts handling the pending lawsuits will agree with the president. Some courts will really believe that the claimed women’s prerogative is “compelling.” Others will accept the President’s claim for argument sake, in order to get down to the crucial business of gauging the administration’s evidence that imposing upon (chiefly) Catholic institutions in the United States an intolerable burden is the least restrictive of all possible courses.
This is where the wheels will come off the government’s bus.
HHS Secretary Kathleen Sebelius has publicly admitted that her office has no empirical evidence showing that the burdensome mandate is the only effective way to give women the “control” of her health. Anyone can readily imagine less restrictive alternatives, such as direct government provision of the desired services, where (because of conscientious exemption) a woman cannot secure them through her workplace health insurance.
The administration’s prospects on “least restrictive means” are so obviously dismal that government lawyers will make every effort to deny that the mandate really “substantially” burdens religious liberty. They will say (as Obama and Sebelius have said) that Church institutions are not required to pay for or to provide any objectionable service, in light of the Administration’s touted “compromise” of Feb. 10 by which the burden was shifted from employer (Franciscan University, for instance) to insurance company (e.g., Aetna or Blue Cross).
This is where the legal hand-to-hand combat will occur.
The key question may well turn out to be whether the residual involvement of religious employers amounts to “facilitating” evil.
The better view is that it does. Most judges will see their way to that view.
Gerard Bradley is a professor of constitutional law at the University of Notre Dame.