IRONDALE, Ala. — It was just one day after the Eternal Word Television Network filed a lawsuit against the Obama administration when President Obama announced an “accommodation” that may have made that lawsuit moot.
But EWTN’s president and CEO, Michael Warsaw, was not backing down.
“We will continue to consult with our legal counsel at the Becket Fund for Religious Liberty to determine the implications of this revised approach,” Warsaw said in a Feb. 10 statement after Obama outlined a modification reportedly designed to assure that the religious liberty of religious employers would not be violated. “However, our legal action against the administration will continue.”
The Becket Fund filed the suit in U.S. District Court in Birmingham, Ala., Feb. 9, seeking to halt the federal government’s imposition of its contraception mandate and to have the court declare the federal rule unconstitutional.
The lawsuit names Kathleen Sebelius, the secretary of the U.S. Department of Health and Human Services, and other federal agencies, as defendants.
In his Feb. 10 statement, Warsaw, who is also the Register’s publisher, said he was “pleased” that EWTN’s decision to sue “may have played some role in forcing the administration to revisit the application of these rules on religious institutions. However, we remain quite skeptical that the changes announced by President Obama will in fact address the concerns raised by EWTN.”
He noted that, according to a White House statement, some religious institutions might no longer be required to directly provide insurance coverage for contraception, sterilization and abortion-inducing drugs. “However, this accommodation may not actually apply to EWTN or actually give any relief to the network and other similar organizations. Like EWTN, many religious institutions self-insure their health-care plans, meaning that we will still be forced to pay for these services in violation of our religious beliefs. Today’s announcement certainly does not give any hope to countless individual business owners and people of faith who share the concern about being required to provide for these services which they personally find immoral.”
He added that EWTN is concerned that the proposed rules for non-exempted religious organizations will still not be finalized until later in the year. “This leaves EWTN and other such organizations very uncertain about what the future may hold with regard to this mandate,” he said. The network, founded in 1981 by Mother Angelica, is the first lay Catholic organization to challenge the constitutionality of the HHS final rule, approved by the Obama administration on Jan. 20. North Carolina’s Belmont Abbey College and Colorado Christian University, based in Denver, have both filed suit. All three are represented by the Becket Fund, the public interest law firm that recently won a unanimous Supreme Court ruling in Hosanna Tabor v. EEOC, a closely watched First Amendment case. Becket is representing EWTN pro bono.
In originally announcing the lawsuit, Warsaw expressed regret at the necessity of taking legal action to defend the network’s constitutional right to the free exercise of religion.
“We had no other option but to take this to the courts,” said Warsaw. “Under the HHS mandate, EWTN is being forced by the government to make a choice: Either we provide employees coverage for contraception, sterilization and abortion-inducing drugs and violate our conscience or offer our employees and their families no health-insurance coverage at all. Neither of those choices is acceptable.”
On Jan. 20, Secretary Sebelius announced that there was to be no expanded religious exemption in the controversial final rule. Media coverage of the ensuing furor has focused on church-affiliated social agencies, hospitals and universities that will be forced to provide abortion-inducing drugs and other “preventive services for women” mandated by the health-care law.
But Warsaw noted that virtually all employers who morally object to such services will still be required to provide them — whether they run nonprofit, explicitly Catholic organizations like EWTN or mainstream businesses like restaurants or corporations.
“Catholic institutions may be especially hard hit,” he said, “because their religious mission embraces a broad swath of society — anyone in need, irrespective of creed.” But he also expressed concern regarding the conscience rights of individual believers.
“We are taking this action to defend not only ourselves, but also to protect other institutions — Catholic and non-Catholic, religious and secular — from having this mandate imposed upon them,” said Warsaw.
The federal rule not only requires the inclusion of services that the Church deems morally illicit; it also directs employers to facilitate the use of those services.
“The government is forcing EWTN, first, to inform its employees about how to get contraception, sterilization and abortifacient drugs, a concept known as ‘forced speech.’ To make the matter worse, the government then will force EWTN to use its donors’ funds to pay for these same morally objectionable procedures or to pay for the huge fines it will levy against us if we fail to provide health-care insurance,” said Warsaw.
“There is no question that this mandate violates our First Amendment rights. This is a moment when EWTN, as a Catholic organization, has to step up and say that enough is enough. Our hope is that our lawsuit does just that.”
Kyle Duncan, general counsel of the Becket Fund and a former Louisiana solicitor general, said that unless the federal rule was changed, EWTN could face $600,000 in penalties each year for refusing to underwrite these services.
Mark Rienzi, a law professor at The Catholic University of America and a senior attorney for the Becket Fund, joined with Duncan to file the lawsuit on behalf of EWTN.
Rienzi predicted that legal challenges would be filed against the federal government throughout the nation. But he noted the significance of EWTN’s case.
“EWTN’s lawsuit is important because the network is not a church. They are a lay-run organization, and they have a right to live by and practice their faith and project the messages they want to project. For the government to say that only churches have religious liberty — but individuals do not — is contrary to what the First Amendment is all about,” said Rienzi.
“Americans should understand that the mandate affects not only schools, but every religious owner in the country. The administration has given no indication that it has considered people who happen to run businesses and have religious objections to paying for abortions.”
Reasons for Optimism
The Becket Fund contends that the three plaintiffs challenging the federal rule so far have reason to be optimistic.
“The First Amendment to the Constitution guarantees the free exercise of religion,” said Rienzi. “And the federal rule clearly violates the Religious Freedom Restoration Act, which prohibits the government from burdening people’s religious freedom in this way.”
Passed in 1993, the Religious Freedom Restoration Act states that the government cannot impose substantial burdens on anyone’s practice of religion unless it has a compelling reason, and the burden on religion is the least restrictive way of meeting that compelling interest.
“Secretary Sebelius and the White House keep talking about this as if it’s a health-care-access issue. There is no issue in this country regarding access to emergency contraception and contraception,” Rienzi asserted.
“In Alabama, the federal government already directly provides contraceptives to more than 100,000 people from 80 federally funded clinics. If they think more people need it, they know how to give it to them. There is no need to involve EWTN.”
Further, Rienzi suggested that the 2011 unanimous Supreme Court ruling in Hosanna Tabor v. EEOC offered additional reason to believe that the high court still sought to uphold the free exercise of religion.
In Hosanna Tabor, the justices “had the opportunity to consider President Obama’s narrow view of religious liberty and rejected that view as ‘extreme,’ ‘untenable’ and flatly inconsistent with the First Amendment.
“That decision was reached by a court that included two justices appointed by President Obama, and I think everyone in the country will understand that the Supreme Court takes these religious-freedom issues very seriously.”
The Obama administration has argued that more than 28 states already have some kind of contraception mandate for health plans, and thus the HHS final rule should not be seen as a significant intrusion of the state in the affairs of church-affiliated groups.
But Rienzi calls the administration’s claim, “at best, a half truth. Other states have some requirements related to contraception. But they all have either broader religious exemptions or other ways for religious individuals and organizations to avoid the requirement — such as by self-insuring or using a federal ERISA (Employee Retirement Income Security Act) plan.”
“This mandate from the federal government is completely new and far more coercive than anything that existed before, which is precisely why the government is dealing with the broad-based outrage it is currently facing,” Rienzi said.
He expects that more organizations will challenge the federal rule in court now that the administration has announced it will hold to its policy, despite the controversy.
While House Speaker John Boehner has vowed to pass legislation that would protect the free exercise of religion for church-affiliated institutions, Michael Warsaw stressed that legal action may still be necessary, whatever the outcome on Capitol Hill.
“EWTN also chose to go forward with this legal action because we feel the best possible resolution to this matter is likely to come from the courts. Although Congress may try to pass legislation to repeal the mandate, that legislation would still require the president’s signature to take effect, and that is not very likely.”
Politically, the GOP fears that Democrats will seek to characterize legislative effort as a campaign to prevent access to artificial birth control or even make it illegal. On Feb. 16, during hearings on First Amendment concerns about the HHS mandate, conducted by the House Committee on Oversight and Government Reform, Republicans stressed that they sought to protect the free exercise of religious institutions, and did not seek to ban contraception.
Earlier, House Energy and Commerce Committee chairman, Rep. Fred Upton, R-Mich., confirmed plans to move legislation through the committee and the House that would repeal the mandate.
“Americans from across the ideological spectrum are speaking with one voice against this unprecedented and unprovoked encroachment on religious freedom. From faith leaders to opinion leaders, a loud and growing chorus of voices are demanding action to restore the conscience protections threatened by this administration’s misguided mandates,” said Upton.
“The Energy and Commerce Committee began examining this controversial proposal when it was first offered last year, meeting privately with the administration and urging them to reconsider this threat to religious freedom. I am deeply disappointed with the recent decision to ignore long-standing protections of religious conscience, and I plan to move quickly, working with my colleagues who share the commitment to the First Amendment to advance legislation that restores the protections that are now imperiled.”
The U.S. Conference of Catholic Bishops has advocated legal and legislative strategies for repealing the final rule and securing First Amendment protections.
Bishop William Lori, the chairman of the U.S. bishops’ Ad Hoc Committee on Religious Liberty, said: “The bishops are holding firm. We are calling upon the administration to rescind those parts of the mandate that force private insurers, whether churches or individuals, to cover abortifacients, sterilization and contraceptives.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.