WASHINGTON — A majority of judges on the D.C. Circuit Court of Appeals this week rejected a request from the Archdiocese of Washington and Priests for Life to have the full court review their challenge to the Health and Human Services’ contraceptive mandate.
According to the archdiocese and Priests for Life, the mandate as it currently applies forces them to be complicit in the provision of contraceptive services, including abortifacient drugs that seriously violate their Catholic beliefs.
“We concluded that the regulation challenged in this case does not, as a matter of law or fact, give plaintiffs’ conduct the contraception-facilitating effect of which they complain,” stated the majority ruling, written by Judge Nina Pillard, in denying relief from the mandate under the Religious Freedom Restoration Act (RFRA).
The 6-3 ruling was followed by two strenuous dissents, one from Judge Janice Rodgers Brown, joined by Judge Karen Henderson, and one form Judge Brett Kavanaugh, which agreed with the plaintiffs’ contention that the federal government’s “accommodation” still violates the religious liberty of the Catholic organizations.
“Make no mistake: The harm plaintiffs complain of — and the harm this court therefore is called to assess — is from their inability to conform their own actions and inactions to their religious beliefs without facing massive penalties from the government,” Brown’s dissent read.
In a May 21 statement, the Archdiocese of Washington stated that it was “disappointed” the appeals court denied the petition for a full review of the case. The archdiocese and Priests for Life filed the petition with the court after a three-judge panel ruled the HHS mandate did not violate the rights of religious objectors.
The archdiocese added that it would very likely be appealing the “erroneous” decision to the U.S. Supreme Court.
“[W]e remain hopeful that final disposition of this case will vindicate religious freedom and rights of conscience,” it stated. “The archdiocese and its affiliates remain committed and determined to serve others freely in accordance with the Catholic faith. It is precisely because of this faith that local Catholic entities are the largest nongovernmental provider of social services in this region.”
Father Frank Pavone, president of Priests for Life, said in a statement provided to the Register that his organization was already preparing to challenge the ruling at the Supreme Court and would request in the next few days a stay of the mandate for the duration of the case.
"We look forward to going to the highest court in the land with arguments that we know are valid, from both a moral and legal standpoint,” he said. We pray that they will accept the case. But should the court ultimately refuse to hear the case or ultimately rule that we need to obey the mandate, let me be crystal clear today, as I have been in the past: We will obey God rather than men."
Robert Muise, co-founder and senior counsel for the American Freedom Law Center, which is representing Priests for Life, said in a statement that getting the entire court to review the case is “a long shot,” but added, “the fact that we have three dissenting judges will greatly assist our efforts to get the Supreme Court to review this very important religious-freedom case.”
The Court Decision
In the decision rejecting a review by the full judge panel of the circuit court, Pillard said the current HHS regulation from the government “allows plaintiffs to continue to do just what they did before the ACA [Affordable Care Act]: notify their insurers of their sincere religious objection to contraception and arrange for contraception to be excluded from the health-insurance coverage they provide.”
Pillard said the difference between what the entities were doing before the Affordable Care Act and what the law requires now is that under the Affordable Care Act regulations, religious nonprofit entities can still obtain plans that exclude contraception, but “the law requires insurers to offer the women contraception under a separate plan — completely segregated from the objecting employer’s plan and its payments.”
In her dissent, Brown pointed out the irony of ruling that the government’s accommodation for religious objectors to the HHS contraception mandate allegedly means such entities could “wash their hands of any involvement.”
“Pontius Pilate, too, washed his hands, but perhaps he perceived the stain of complicity remained,” Brown noted.
“If the government co-opts their contractors and administrative structures to dispense advice, drugs and services that contravene their religious views, in effect, it has written contraceptive care, including access to abortifacients, into plaintiffs’ employment contracts and student health-care agreements,” she said. “Commandeering is not accommodation.”
Brown added, “Preserving the fragile ark of our constitutionalism requires us to remember that the first principle of liberty is freedom from gratuitous coercion.”
Violate Their Faith — or Pay Huge Fines
Concurring with the opinion of the dissenting judges, Daniel Blomberg, legal counsel for the Becket Fund for Religious Liberty, which is not involved in this particular case, explained that the D.C. Court’s decision to let the lower court’s ruling stand means the archdiocese and Priests for Life face the choice of violating their faith or paying huge fines.
“What some of these plaintiffs are being asked to do is to authorize, obligate and incentivize their own insurance provider, their own health-care [provider], to provide something that they see as wrong,” he said. “At the end of the day, they see it as wrong to request and require someone else to do for [them] something that [they] think is wrong for [them] to do.”
Blomberg said that the plaintiffs will likely wish to pursue protections at the U.S. Supreme Court, which could resolve the issue by either taking one case or a mixture of the cases winding their way up through the federal appellate courts in order to hit all the points of law they want to address.
Blomberg said these rulings are not good for religious liberty. “It’s not good for religious liberty because the federal government is interpreting their religious beliefs for them," he said, adding that the federal government takes an even further step by telling the plaintiffs that it gets to be the sole authority on “when their religious beliefs can be protected and when they can’t.”
He added that there is evidence the Supreme Court would affirm that the HHS mandate conflicted with the RFRA.
“Every time the U.S. Supreme Court has heard one of these cases, every time someone has come asking for relief, they have been protected, and the government has lost.”
Peter Jesserer Smith is the Register’s Washington correspondent.