Register Radio - EWTN’s HHS Lawsuit and Buffer Zone at Abortion Facilities
BY Sarah Reinhard
| Posted 6/30/14 at 8:00 PM
This week on Register Radio, Jeanette De Melo talks with EWTN’s Chairman and CEO Michael Warsaw about the Network’s legal challenge to the Health and Human Services contraception mandate. Then Jeanette and Dana Cody, President and Executive Director of the Life Legal Defense Foundation, look at the Supreme Court’s recent decision that bans 35 foot buffer zones at Massachusetts’s abortion facilities.
Michael Warsaw is the Chairman of the Board & Chief Executive Officer of Eternal Word Television Network, Inc. He joined EWTN in 1991 and has held senior management positions in the areas of television production, satellite operations, and technical services. He assumed the post of chief executive officer in 2009. In that capacity he oversees the Network's strategic direction and mission around the world. He became chairman last year.
With the Network's 2011 acquisition of the National Catholic Register, Mr. Warsaw assumed the role of publisher of the Register. Today we’ll explore the network’s legal challenge to the HHS contraception mandate.
The district court in Alabama basically said that EWTN had no substantial burden in their challenge to the HHS mandate, which was a real setback.
“I don’t consider it [news of the HHS mandate ruling] bad news, because we know that God brings good out of all things, so it’s a challenge and it’s something we have to deal with. We were prepared for the fact that the Court could rule against us when we filed our lawsuit,” Warsaw said.
“It’s hard to believe, though, that it’s been two-and-a-half years since EWTN filed the first lawsuit against the mandate,” he continued. EWTN was the first party to file suit and push back against the government’s intrusion, according to Warsaw.
Last week’s ruling “indicated that [the judge] knows better than EWTN what Catholic doctrine was on these issues [of contraception, sterilization, and abortion] and that we should essentially get over it and move on. It was very troubling,” Warsaw said, “in the way that it was constructed and the way that it was put forward.”
EWTN immediately appealed to the 11th Circuit Court of Appeals in Atlanta, asking the court there to overturn the District Court’s ruling and to grant EWTN an injunction barring the mandate and its penalties being forced against EWTN.
There has not been a decision and the deadline is July 1 for those penalties to take effect. If the injunction is not granted, EWTN will be fined $35,000 per day by the government because they’re choosing to maintain a Catholic healthcare plan that’s deemed not compliant by the government.
“It’s just absolutely astounding that we’re in a position where the government is letting these kinds of penalties against an organization that’s trying to stay true to its mission and trying to stay true to its own religious values and beliefs,” Warsaw said.
Warsaw said this should be a wake-up call “to all people of faith and good will in this country,” because “these values that once were taken for granted are being chipped away bit by bit and in court decisions like this one.”
We, as Catholics and Americans, have to push back on this. “That’s one of the things that’s been important to me during this two-and-a-half years,” Warsaw said. “It was time for us to stand up and take a stand and push back against this.”
The Supreme Court is set to release a decision on June 30 on the Hobby Lobby case which is also against the HHS mandate. Hobby Lobby doesn’t believe they should have to provide contraception. The question, Warsaw explained, is how broadly or how narrowly the Court will rule in favor of Hobby Lobby, if in fact they do rule in favor. Warsaw cited that the Court, under Justice Roberts, seems to be ruling very narrowly, citing the Massachusetts abortion law.
If the decision is broad, Warsaw said, it bodes well for EWTN and many other plaintiffs on both the for-profit and non-profit side. If it’s narrow, there’s no assurance for anyone else, such as the Little Sisters of the Poor, because it will not be clear whether the Hobby Lobby decision addresses a similar yet different set of concerns.
This conversation will be continued next week as the decision comes out and the implications become more clear.
Dana Cody has been championing the rights of women and unborn children for over 20 years. She started as a lay counselor to women in crisis pregnancies. She then became a lawyer and since 1994 she’s worked to better protect women and children in the courts and legislation.
Currently she is the president and executive director of the Life Legal Defense Foundation, which is a nonprofit organization committed to giving voice to life issues in the courts. They filed an amicus brief in the McCullen v. Coakley lawsuit that challenged a 35-foot buffer zone that was required around abortion facilities in Massachusetts. This week the Supreme Court struck down that law banning the buffer zones is Massachusetts. Dana is here to talk to us about how the High Court’s decision affects pro-life organizers around the country.
“Clearly, the purpose of these zones is to limit the message of life to women entering the clinic,” Cody said. “After having read the decision and digesting it for a while, it’s great that the majority opinion held that these zones burden more speech than is necessary.”
The reasoning, Cody explained, that it includes public sidewalks which are traditionally public forums. The government cannot limit that sort of speech unless there’s a record of wrongdoing.
“The disappointing part of the decision,” Cody continued, “is the fact that the majority of the Court says that it’s still okay to have these zones under certain circumstances and saying that the reason is that this particular zone is content-neutral.”
The law, in this case, created a 35 no-entry zone around any entrance or driveway at a clinic. There were exceptions for clinic employees, law enforcement, or anyone passing through as long as they didn’t stop. Eleanor McCullen was a sidewalk counselor who had to stay outside these zones. To speak to these women, she had to speak louder.
“I’ve seen clinics who will turn on a weed-eater or turn up a radio to keep the sidewalk counselor back and make sure the woman going into the clinic could not hear them, so that was the effect of this particular ordinance, so that only people who support abortion or maintenance workers or law enforcement or people passing through…were privileged to enter the zone and people with a message of life were not. That’s why it was disappointing that the majority said that these zones are not content-neutral,” Cody explained.
The minority, led by Justice Scalia, had a different opinion and said that the Court had carved out an exception for those who affirmed life, called in past decisions the “abortion distortion.” There was a second concurrence by Justice Alito pointing out that those who point out things about the clinic, such as a botched abortion, and are not employees are charged with a crime for speaking, while employees can enter that zone and say anything, even falsehoods, and it isn’t a crime. The result is a content-based discrimination against the life-affirming message.
Justices Scalia and Kennedy went into great detail about how this is illogical. Scalia concludes by saying, according to Cody, “the obvious purpose of the Massachusetts Reproductive Healthcare Facilities Act is to ‘protect clients of abortion clinics from having to hear abortion-opposed speech, opposing abortion on the public streets and sidewalks.’”
One thing Scalia directly addresses is that, by the majority’s own logic, the 2000 decision in Hill v. Colorado granting 100-foot buffer zones could be unconstitutional.
This decision may impact other cases around the country, including ordinances in San Francisco and some other places. “They have to be careful how they word those ordinances,” Cody said, and she pointed out that Scalia said, in his dissent, that the majority opinion may have inadvertently overruled the Hill v. Colorado decision.
“The majority of the Court,” Cody said, “just doesn’t really understand what goes on at clinics. It doesn’t really understand that everybody that is out there, especially those that have a financial interest in abortion, those who promote abortion, that they aren’t acting nicely, that they’re taking measures to suppress speech, and you can see it by their conduct. As a result, people are arrested and convicted and have to engage attorneys and go through years of court battles to be vindicated.”
Cody explained the case where a peaceful pastor was convicted and the circumstances surrounding that, concluding, “it’s obvious that the purpose of these ordinances is to limit speech.”
Listen to this week’s show online or on your mp3 player.
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