Scores of Lawsuits Seek Protection of Religious Liberty
43 Organizations Go to Court Over ‘Contraceptive Mandate’
BY Joan Frawley Desmond
Register Senior Editor
June 3-16, 2012 Issue | Posted 5/29/12 at 2:11 PM
WASHINGTON — In an unprecedented nationwide action, 43 Catholic dioceses, institutions and individual Catholics filed 12 lawsuits May 21 in federal courts throughout the country, challenging the constitutionality of the Obama administration’s “contraception mandate.”
A First Amendment battle has developed in the wake of the controversial federal rule requiring employers to provide co-pay-free abortion drugs, contraception and sterilization in their employee health plans. Religious employers seeking an exemption are subject to a narrow definition of what constitutes a religious institution covered under the Free Exercise Clause of the Constitution.
In March, the Obama administration solicited comments for its proposed rulemaking to address various objections to the mandate’s provisions. On May 15, the USCCB general counsel formally rejected the administration’s proposals.
Cardinal Timothy Dolan, archbishop of New York and the president of the USCCB, marked the unprecedented action May 21 by expressing both dismay that talks between the bishops and the Obama administration had produced no worthy solution and a strong resolve that objecting institutions will find redress in the courts. “We have tried negotiation with the administration and legislation with the Congress — and we’ll keep at it — but there’s still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance; so we have to resort to the courts now,” said Cardinal Dolan in a prepared statement.
“Though the conference is not a party to the lawsuits, we applaud this courageous action by so many individual dioceses, charities, hospitals and schools across the nation, in coordination with the law firm of Jones Day. It is also a compelling display of the unity of the Church in defense of religious liberty.” His statement noted the “diversity of the Church’s ministries that serve the common good and that are jeopardized by the mandate — ministries to the poor, the sick and the uneducated, to people of any faith or no faith at all.”
In a striking departure from its decision to honor Obama, an unabashed supporter of abortion rights, at its 2009 commencement, the University of Notre Dame announced May 21 that it had joined the nationwide legal challenge.
Richard Garnett, a constitutional scholar at Notre Dame, backed the university’s decision to file a lawsuit. “These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate,” said Garnett in a published statement. “This mandate,” he continued, “imposes a serious and unnecessary burden on many religious institutions’ commitments, witness and mission. It purports to require many religious schools, health-care providers and social-welfare agencies to compromise their institutional character and integrity. In a society that respects and values diversity, as ours does, we should protect and accommodate our distinctively religious institutions and welcome their contributions to the common good.”
Father John Jenkins, the president of Notre Dame, issued a public statement that defended the legal challenge, asserting that the university did not seek to prevent the “government from providing such services. Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives,” read Father Jenkins’ statement.
But Gerard Bradley, a professor at the university’s law school, suggested that the plaintiffs must not downplay the Church’s moral objections to the services mandated by the new federal rule. “In trying to reassure those at Notre Dame who use contraception that the lawsuit portends no threat to their privacy, he [Father Jenkins] comes perilously close to implying that there is nothing objectively wrong about their choices,” said Bradley.
“It is important that all spokespersons for Catholic institutions bear in mind that the mandate pertains to inherently evil actions — contraception, sterilization and early abortion,” said Bradley, who added that not every plaintiff needed to address this fact, but “none should say or imply anything incompatible with the status of the teachings” of the Church.
While partisan groups have mischaracterized opposition to the mandate as a “war on women,” Church leaders have sought to clarify their determination to protect the free exercise of Catholic institutions. Archbishop William Lori of Baltimore, the chairman of the USCCB Ad Hoc Committee for Religious Liberty, described the unprecedented action as “a sign of our determination to be able to serve the common good with the faith that inspires the services we provide.” “It indicates that we are not in this for any partisan reason,” he said. “We turn to the courts, who are impartial, to defend our First Amendment religious liberties.”
The Archdioceses of New York and Washington, The Catholic University of America and Franciscan University of Steubenville, Ohio, are among the plaintiffs. Cardinal Donald Wuerl of Washington explained that the action was necessary to challenge the administration’s narrow definition of what constitutes a religious entity covered under the Free Exercise Clause. “That’s why I signed on board to be a part of this nationwide request for judicial review,” Cardinal Wuerl told the Register.
The week before the 43 lawsuits were filed, Anthony Picarello, the U.S. bishops’ associate general secretary and general counsel, and Michael Moses, USCCB associate general counsel, in a letter to the Department of Health and Human Services, clarified the conference’s long-standing concerns about the HHS mandate. Cardinal Wuerl noted that the general counsel’s formal response “simply pointed out that we don’t see any [acceptable] changes … to an extremely narrow definition of what is a religious entity. Since then ... we have been told that the definition will not be changed,” he noted. “This administration is claiming the unique right to define for the Church what constitutes our ministry. In the past, the federal government offered a broad religious exemption that included all Catholic entities — schools, agencies and hospitals. Now we have a new definition that excludes all of them. That’s why we are in court,” he said.
After Health and Human Services Secretary Kathleen Sebelius approved the mandate in January, the bishops protested that narrow definition, and the administration issued an “accommodation” on Feb. 10 that ostensibly shifted responsibility for underwriting the objectionable services to insurance carriers. Subsequently, the bishops noted that many Catholic organizations are self-insured. Further, they argued that the federal rule made their employee health plans the conduit for providing objectionable services. The administration later suggested that other entities take responsibility for underwriting and facilitating the coverage, but the federal rule has not been altered, and key issues continue to pose an insurmountable obstacle for the bishops’ conference.
The letter from the USCCB’s Picarello and Moses summarized these concerns and also provided additional analysis that bolstered their consistent opposition to the HHS mandate. The USCCB comments noted that the administration’s accommodation would only apply to some religious groups and that it “would still leave their premiums or plans (or both) as the source or conduit for the objectionable ‘services.’ But the use of premiums and plans for that purpose is precisely what is morally objectionable, and having an insurer or third party administer the payments does not overcome the moral objection.” The comments concluded that, “under the terms set out in the HHS Advance Notice of Proposed Rulemaking (ANPRM), the ‘accommodation’ cannot provide effective relief even for those few stakeholders that qualify for it.”
Jim Towey, the president of Ave Maria University in Naples, Fla., said that “what is different about the flurry of lawsuits filed today is that a number of these plaintiffs are self-insured. “The regulations were silent about how self-insured organizations were to be treated. These organizations have been waiting for months for this to be addressed, and they are saying they can’t wait anymore.”
Catholic universities face an additional problem — the new health bill also mandates the inclusion of contraception and abortion drugs in their student health-insurance plan, and there is no religious exemption for any university, though Catholic institutions have been informed that they can apply for a one-year extension before they begin providing this required coverage. Further, the new health bill is expected to sharply increase costs for students who seek coverage. Ave Maria’s insurance carrier has already informed the university that provisions in the new health bill will result in a “66% increase in their annual premiums (from $839 to $1,392),” according to a statement released by Ave Maria.
Franciscan University filed suit May 21 and also announced its decision to drop the student health plan days earlier. It has received strong backing from the majority of its alumni and students, reported Michael Hernon, vice president of advancement for the university. He noted that Franciscan “had a 20-year relationship with Jones Day,” the Cleveland, Ohio-based law firm that is leading the national lawsuit effort on a pro bono basis. “We knew we had one of the largest law firms in the country backing us,” said Hernon.
In recent months, the bishops’ allies on Capitol Hill sought to pass legislation that would broaden the mandate’s religious exemption and strengthen conscience provisions, but these measures failed to secure the necessary votes.
Meanwhile, several Church-affiliated institutions have already filed lawsuits, represented by the Becket Fund for Religious Liberty and the Alliance Defense Fund, both public interest groups. The Eternal Word Television Network (EWTN) is among those plaintiffs; the Register is a service of EWTN.
The Supreme Court, which will rule on the constitutionality of the new health bill, could decide to overturn part or all of Obama’s signature effort. Thus, a number of objecting religious institutions have said that they will wait for the high court’s ruling, expected by late June, before reviewing their options.
John Garvey, the president of The Catholic University of America and a constitutional scholar who has advised the bishops’ Ad Hoc Committee for Religious Liberty, noted that the mandate imposes a policy that contradicts the fundamental mission of a Catholic university: to teach “ideas and ideals. A Catholic university not only transmits knowledge in academic subjects like chemistry or Mandarin Chinese; it also educates them for a life of virtue when they graduate.”
He, too, reported that since the announcement was released about CUA’s legal challenge, “My email box was flooded — hundreds within the space of an hour. Every single one of them says ‘thank you’ for standing up for religious freedom.”
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