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State of Alabama Joins EWTN's Legal Challenge Against HHS Mandate

Attorney General Luther Strange filed papers March 22.

BY JOAN FRAWLEY DESMOND

| Posted 3/22/12 at 11:27 AM

 

BIRIMINGHAM, Ala. — The state of Alabama joined EWTN as a co-plaintiff in the network’s lawsuit against the Obama administration’s contraception-abortion mandate.

In papers filed March 22 in the U.S. District Court in Birmingham, Attorney General Luther Strange asserted that the controversial federal rule, which requires the inclusion of contraception services in virtually all private employee health-care plans, would pre-empt rights affirmed by the state’s Constitution, which guarantees its citizens’ right of conscience.

“[T]he state seeks to preserve its ability to provide insurance coverage to its citizens in a manner that is consistent with Alabama law and the right of conscience,” stated the document filed today.

Summarizing the basis for the state’s motion to join the lawsuit as a co-plaintiff, the attorney general also asserted that the regulation would result in conscientious objectors opting out of their private health plans, thus increasing participation in Medicaid and other state-supported health programs.

Addressing a press conference March 22, Strange explained why Alabama decided to get involved in the case.

“In addition to our familiarity to EWTN, which is headquartered in Alabama and actually located very near the school our children attended, and the good work they do in our nation and our state and around the world, there are fundamental first principles at stake in this litigation,” he said in an opening statement. “The mandate requires Alabama to regulate its health-insurance market in a way that violates the First Amendment to the United States Constitution, the federal Religious Freedom Restoration Act and the Alabama Religious Freedom Amendment, among other laws.”

“This dispute over the contraception mandate is the natural consequence of Obamacare’s individual mandate, which my office is also challenging in court, along with many other states,” he continued. “If the federal government can mandate that everyone has to buy something, then the government can require us to buy something even if we are morally opposed to paying for it. That is why I hope the Supreme Court strikes down Obamacare as unconstitutional.”

Strange continued, “The people of Alabama have recognized the importance of [religious freedom] and have enshrined it in our Constitution as well. Alabama law does not allow anyone to be forced to offer a product that is against his or her religious beliefs or conscience. … The issue is clear: Either Alabamians and Americans around the country will be allowed to exercise their religious freedom and say No to something they disagree with, or they won’t. We hope the Obama administration will listen and adopt a position that supports our first freedom, rather than undermine it.”

Court documents identify the Eternal Word Television Network, Inc., as the plaintiff, and Kathleen Sebelius, secretary of the U.S. Department of Health and Human Services, the U.S. Department of Health and Human Services, Hilda Solis, secretary of the U.S. Department of Labor, the U.S. Department of Labor, Timothy Geithner, secretary of the U.S. Department of the Treasury, and the U.S. Department of the Treasury as co-defendants.

“[T]he state seeks to minimize the number of uninsured Alabama citizens for whom the state bears the burden of providing health care,” stated the document, which charged that the “federal regulation at the heart of this lawsuit thwarts” that objective.


‘No Mere Slogan’

Michael Warsaw, president and CEO of EWTN, which is headquartered in Irondale, Ala., welcomed the action by the attorney general.

“We are grateful to Alabama Attorney General Luther Strange for taking such a strong stand on this issue,” said Warsaw.

“This suit demonstrates that the Alabama motto — ‘We dare to defend our rights’ — is no mere slogan,” Warsaw noted. “The state could simply have chosen to file a brief advising the court of the impact of the case on its citizens. Instead, it is intervening in the suit as a co-plaintiff with EWTN. The attorney general of Alabama is saying, in effect, that this unjust, unconstitutional mandate hurts not only EWTN, but the entire community.”

On Feb. 9, EWTN filed its own legal challenge to the contraception mandate, which was approved on Jan. 20 by Secretary Sebelius. The Becket Fund for Religious Liberty, a public interest group, is representing the network pro bono.

The Register is a service of EWTN.

The federal rule requiring co-pay-free “preventive services for women” arises from the new health bill, the Patient Protection and Affordable Care Act, widely known as Obamacare.

After Catholic leaders and commentators attacked the narrow religious exemption included in the mandate, the president offered an “accommodation” for conscientious objectors, proposing that the costs of providing the co-pay-free provisions would be passed on to insurance companies or other independent entities.

The U.S. bishops have rejected the accommodation, noting that the federal rule still required church-affiliated institutions to secure services that violate their moral teachings.

On Feb. 23, seven other states jointly filed legal challenges against the federal contraception mandate. Alabama chose to take a separate path, joining EWTN’s legal challenge.

As noted in the state’s motion to intervene, Alabama law does not require that insurers provide contraception or sterilization coverage in health plans. Nor does state law require every employer or person in the state to purchase such coverage. The documents filed by the attorney general clarify that Alabama citizens are free to choose between an array of health-insurance plans, including those that exclude these services.

The contraception mandate would overturn the status quo, removing the choice of morally acceptable health plans for those who object to some or all of the co-pay-free provisions. Unless the mandate is repealed, every plan offered in the state-run health-insurance exchange will include abortion-inducing drugs, contraception and surgical sterilization.


Obama Magic?

In the papers filed by the state, Attorney General Strange addressed the coercive nature of the contraception mandate and underscored his statutory responsibility “to ensure that charitable institutions adhere to their purposes and bylaws and to advise state officers on how to conduct programs consistent with state and federal law.”

“Because the federal mandate at issue in this lawsuit threatens to interfere with the mission of religious not-for-profits and because the result of this lawsuit will, as a practical matter, control the administration of a state program, the attorney general has an interest in this litigation stemming from the prerogatives of his office,” the document stated.

EWTN’s Warsaw says this last point is particularly important: “When the federal government uses its power to coerce a faith-based organization to act contrary to its deeply held values, it destroys that organization’s capacity to fulfill its mission.

“Ultimately, as is the case with the HHS mandate, if that organization is unwilling to compromise its beliefs, it is an organization that can’t follow its beliefs or fulfill its mission; its integrity as an organization is destroyed by fines and crushing government penalties; it ceases to exist. People have fought and died for the right to conscience protection.”

Warsaw applauded the 12 states — Alabama included — that have challenged the contraception mandate to date, and he expressed the hope that more states would follow.

“In joining EWTN’s lawsuit, Attorney General Strange shows that he understands this is unacceptable,” Warsaw said. “I am very grateful that he has chosen to use the state’s power to intervene for the common good.”

At the March 22 press conference, Becket Fund general counsel Kyle Duncan said that Alabama’s decision to join the lawsuit highlights a “massive problem caused by the HHS mandate. ... The mandate, which is a command from the federal government, prohibits a state like Alabama from protecting its own citizens’ religious liberties as it manages its own health-care market in response to the Affordable Care Act.”

In answer to a question, Duncan said the accommodation proposed by President Obama for religious employers did nothing to change the situation. “This is simply a promise by the administration, which may try to come up with some arrangement in the future,” he said. “All that it does is call for comments on it. That’s not the law right now, and no one knows if that will ever be the law. The law right now, as it stands, was made final on Feb. 15. That is the mandate and its narrow religious-employer exemption.”

“Secondly, this accommodation is nothing more than an accounting shell game,” Duncan asserted. “The religious employers would still be required to provide access to this coverage. All the administration is saying is that it wants to come up with a way of forcing insurance companies to provide the coverage independently for free. No one is really sure how the administration can work that kind of magic to make something that obviously costs money free. Costs would obviously be passed on to the religious employer. That would be true whether it’s self-insured or not.”

“The fact that EWTN is self-insured puts it in an even worse position, because it’s insuring itself and is merely using an insurance company as a third-party administrator,” Duncan concluded. “So this accommodation wouldn’t solve the problem for EWTN, and it surely wouldn’t solve it for Alabama, because Alabama would have to construct a health-care exchange where all of the players in the game would have to be offering this coverage in one way or another.”

Next week, the U.S. Supreme Court will hear three days of oral arguments addressing both broad and narrow challenges to the constitutionality of the Patient Protection and Affordable Care Act. The contraception mandate will not be at the center of that review, but its future depends on whether the high court rules in favor of the Obama administration — or against it.

Advocates and opponents for the bill are expected to converge at the Supreme Court on March 25, with rallies and prayer vigils planned to mark the groundbreaking case.

During a March 21 interview with the Register, Archbishop-designate William Lori of Baltimore, the chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, acknowledged that he would be carefully following the oral arguments, which often signal individual justices’ particular questions or areas of agreement.

“Obviously, it could have some effect on what we’re doing and what we’re interested in,” he said, while noting that the conference had long advocated for universal health insurance.

“But, all along, we argued that the health-care reform bill should have adequate conscience protection,” he said. “It got passed without it. And we didn’t go looking for this [battle], but we have it, and we’re going to pursue all the remedies available to us as citizens — in all three branches of government.”

Joan Frawley Desmond is the Register’s senior editor.