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Jim Towey, president of Ave Maria University, said the college had 'no choice but to sue.'
BY Joan Frawley DesmondRegister Senior Editor
NAPLES, Fla. — Just six years ago, Jim Towey was directing the White House Office of Faith-Based and Community Initiatives, advancing President George W. Bush’s policy of effective collaboration between religious institutions and the federal government.
As president of Ave Maria University, Towey announced Feb. 21 that he had approved a legal challenge to a controversial federal law that requires this Catholic institution to provide contraception, abortion-inducing drugs and sterilization in its employee health plan.
“It is a sad day when an American citizen or organization has no choice but to sue its own government in order to exercise religious-liberty rights guaranteed by our nation’s Constitution,” Towey stated at a press conference.
“Allowing a U.S. president of any political party or religious affiliation to force conformance to his or her religious or secular orthodoxy through executive action is a perilous precedent,” he said in a statement.
Towey’s decision to sue the federal government underscores the shift in presidential priorities since Barack Obama took up residency in the White House in 2009.
Bush’s close collaboration with religious groups offended secularists, who charged that his policies violated the Anti-Establishment Clause of the U.S. Constitution.
In 1999, Bush previewed his proposed policy of harnessing the institutional and redemptive power of church-affiliated groups working with struggling Americans in inner-city homeless shelters, substance-abuse programs and other effective grassroots initiatives with limited resources to aid the poor and marginalized.
“In every instance where my administration sees a responsibility to help people, we will look first to faith-based organizations, charities and community groups that have shown their ability to save and change lives. We will make a determined attack on need, by promoting the compassionate acts of others,” vowed Bush.
Obama, for his part, has maintained the Office of Faith-Based Initiatives, but he also severed or reduced federal contracts with some Catholic organizations which refused to comply with new requirements that they provide “the full range of reproductive services.”
Ave Maria is the second Catholic college to legally challenge the contraception mandate, approved by Kathleen Sebelius, the secretary of the U.S. Department of Health and Human Services, on Jan. 20, despite a long campaign waged by the bishops to repeal an interim final rule announced in August 2011. North Carolina’s Belmont Abbey College, a Benedictine institution, has already filed suit.
Ave Maria will be represented pro bono by the Becket Fund for Religious Liberty, a public interest group, in a lawsuit that names as defendants Kathleen Sebelius specifically, the Department of Health and Human Services, and other federal agencies.
“The federal mandate puts Ave Maria in a terrible bind,” said Kyle Duncan, general counsel for the Becket Fund, which filed suit Feb. 21 on behalf of the university, established by Tom Monaghan, the founder of Domino’s Pizza.
“Either it betrays its faith and covers the drugs or else it ends employee health benefits and pays hundreds of thousands in annual fines,” added Duncan.
On Feb. 10, after sustained and growing opposition to the HHS mandate by Catholics throughout the nation, President Obama announced that he would modify the federal rule. He said he would direct insurance companies, rather than the religious organizations, to pay the costs of contraceptives covered under co-pay-free “preventive services for women,” mandated by the new health bill.
The U.S. Conference of Catholic Bishops rejected the president’s “accommodation” as inadequate and vowed to pursue legal and legislative remedies.
In a Feb. 10 statement, the bishops attacked the HHS mandate as both a “needless government intrusion in the internal governance of religious institutions” and an act of “government coercion of religious people and groups to violate their most deeply held convictions.”
The USSCB said it was reviewing legal options and strongly endorsed the Respect for Rights of Conscience Act, legislation that has attracted increasing support in the Republican-controlled Congress.
Meanwhile, the House Committee on Oversight and Government Reform has already held hearings on the First Amendment issues posed by the HHS mandate.
At the Feb. 16 House hearing, John Garvey, president of The Catholic University of America and a constitutional scholar who previously served as the dean of Boston College Law School, echoed the bishops’ criticism of the president’s “accommodation.”
“The proposed solution is this: When a religious institution like The Catholic University of America objects to including mandated services in its health plan, the insurance company with which we contract will have to furnish those services to our subscribers (at no added cost to the subscribers).”
Garvey concluded, “It is hard to see how this revision changes the picture.”