IRONDALE, Ala. — On Oct. 28, with just months to go before federal law requires its compliance with the Health and Human Services' contraceptive mandate, EWTN Global Catholic Network filed a new legal challenge in federal court against the controversial law.
Alabama Attorney General Luther Strange announced that the state would join EWTN as a co-plaintiff in the lawsuit, which asks the court both to halt the government from imposing the HHS mandate and to find that the law is unconstitutional. The lawsuit, which was filed in the U.S. District Court for the Southern District of Alabama, names the U.S. Department of Health and Human Services and HHS Secretary Kathleen Sebelius.
“EWTN has no other option but to continue our legal challenge to the mandate,” said EWTN chairman and CEO Michael Warsaw, in a statement released on Oct. 28. “The revised rules, published by the government in July, have done nothing to address the serious issues of conscience and religious freedom that EWTN has been raising since the mandate was first published last year.”
Alabama’s Attorney General Strange said in a statement, “I am proud to stand with EWTN to oppose this unconscionable mandate. Whatever we personally may think about contraception and abortion-inducing drugs, the government should not be in the business of forcing people to violate their religious convictions.”
In February 2012, in the wake of the government’s initial approval of the HHS mandate, EWTN was among the first Catholic nonprofit organizations to file a lawsuit against the rule.
But in March 2013, Judge Sharon Lovelace Blackburn of the U.S. District Court, Northern District of Alabama dismissed the lawsuit as premature because of the government’s promises to amend the mandate and address religious-liberty concerns.
At that time, the White House had offered a yearlong “safe harbor” extension for religious nonprofits that were not exempted under the federal law, and government lawyers told the court that further amendments to the final rule were still under consideration. Thus the time was not “ripe” for a ruling on the merits of the case, according to Blackburn.
“Defendants further point out that not only is there a lengthy delay before they will enforce the mandate against EWTN, but they have also initiated the amendment process in which EWTN may participate. ... According to defendants, these circumstances illustrate the absence of impending injury to EWTN,” Blackburn noted in the finding.
However, the government did not amend the rule and expand the religious exemption to incorporate Catholic nonprofits like EWTN; the exemption only applied to churches.
The Register is a service of EWTN.
Strong Catholic Opposition
The U.S. bishops have strongly opposed the final rule, and many dioceses have joined in the slew of lawsuits against the mandate filed by more than 36 nonprofit and 39 for-profit plaintiffs in courts across the country. Of the 36 nonprofit lawsuits, only one case has been decided on its merits; the other cases received rulings on procedural issues. Of the 39 for-profit lawsuits, 35 have obtained rulings on the merits of their claims, and 30 of those have received injunctive relief.
“The government has decided that EWTN is apparently not religious enough to be exempt from the rule,” said Warsaw, in his statement released today.
The Becket Fund for Religious Liberty, a public interest group, will continue to represent EWTN as it seeks protection from the court against imminent financial penalties for non-compliance and requests a finding that the mandate violates the free exercise of religion protected under the First Amendment of the U.S. Constitution and the Religious Freedom Restoration Act.
Lori Windham, senior counsel for the Becket Fund, noted that the government’s “accommodation” requires EWTN to contract with a third party to provide contraceptives and abortion-causing drugs on its behalf.
“That’s a violation of the Catholic teachings EWTN expresses every day and a solution only a bureaucrat could love,” Windham told the Register, noting the looming July 2014 deadline, when EWTN will be subject to compliance with the mandate, as the reason why the case requires immediate action from the court.
In his press release, Attorney General Strange characterized the third-party provision as a “shell game” and an “accounting gimmick.”
“We all know that insurance companies do not provide anything for free; the employers are still going to be paying for these services through increased premiums or otherwise, even if the insurance company technically covers those products through a separate ‘free’ policy,” Strange said. “This isn’t just about who ultimately has to pay. It is about the government forcing EWTN to participate in a scheme that violates its religious beliefs.”
Violation of Administrative Law?
The 48-page complaint filed by the Becket Fund alleges that the government action also violates the right to due process and equal protection, protected under the Fifth Amendment, and that the regulation is improperly enforced because it was not promulgated according to the requirements of law.
While many legal challenges to the mandate argue that the federal law violates the plaintiffs’ religious freedom, the complaint filed in court on behalf of EWTN also alleges that the final rule violates administrative procedure laws.
Administrative law requires federal agencies preparing to issue a regulation to consider public comments made to a proposed rule, the complaint notes. And among the facts alleged in the complaint is the history of the government’s repeated requests for comments from citizens and organizations regarding the mandate.
Beginning with the first of three officially designated comment periods, the response steadily increased with 100,000, then 200,000 and, finally, 400,000 public comments registered against the rule.
But while the final rule mentioned EWTN at one point, EWTN’s complaint alleges that its concerns, and those of hundreds of thousands of other citizens and religious groups, were essentially ignored in the final HHS rule.
“The government says that only churches are religious enough for the government to respect their rights of conscience. This is an insult to EWTN, which exists to serve its Church,” said the Becket Fund’s Windham.
The last time EWTN filed a legal challenge, she said, “the court wanted to wait until the rulemaking process was complete. That process is finished now.”
Windham said that, with the official January 2014 mandate compliance deadline approaching, “a short time from now, EWTN must choose between following its faith and paying millions of dollars in fines. That’s a choice no American should have to make.”
In his Oct. 28 press statement, Alabama Attorney General Strange echoed those sentiments.
Said Strange, “The freedom of religion, and to believe as conscience requires, is our ‘first freedom’ under the United States Constitution.”
“The people of Alabama have recognized the importance of this freedom and have enshrined it in their Constitution as well,” Strange added. “Alabama law does not allow anyone to be forced to offer a product that is against his or her religious beliefs or conscience.”
[UPDATE 11/2: Yesterday, the D.C. Circuit Court of Appeals ruled in Gilardi v. the Department of Health and Human Services, a case dealing with a legal challenge filed by a Catholic for-profit employer, that the HHS mandate “trammels the right of free exercise.” It was another blow to the Obama adminstration, and legal experts predict that, by Thanksgiving, the U.S. Supreme Court will agree to hear one or more cases filed by for-profit employers who opposed the contracption mandate on moral grounds.]
Joan Frawley Desmond is the Register’s senior editor.