On this week’s Register Radio, Dan Burke and Jeanette De Melo talk about defending religious liberty with EWTN's Michael Warsaw and Becket Fund senior attorney Lori Windham in light of EWTN's recent oral arguments against the HHS mandate at the 11th Circuit Court of Appeals.

Dan Burke’s Conversation with Michael Warsaw

Michael Warsaw is the Chairman of the Board & Chief Executive Officer of EWTN, the world's largest religious media network based in Irondale, Alabama. Using all facets of technology, EWTN's global reach includes eleven television networks, shortwave, satellite and AM/FM radio services, online and digital media services, news and publishing.

Mr. Warsaw joined EWTN in 1991. He was named President of EWTN in 2000 and assumed the post of chief executive officer in 2009. With the Network's 2011 acquisition of the National Catholic Register, Mr. Warsaw assumed the role of publisher of the Register.

“It’s been a long three-year process of fighting against this [contraception] mandate and ultimately, the case finally reached the 11th Circuit Court of Appeals in Atlanta,” Warsaw said. He continued, stating that while it’s hard to judge as you walk away from these situations, he “felt very good” and shared that he thought 

“our legal team felt very encouraged by the questions that were asked by the 11th Circuit panel were very perceptive and helped advance our argument that this mandate really presents a substantial burden on EWTN’s right to religious exercise, and really that the government does not have a sufficiently compelling reason to impose this mandate on organizations like EWTN or the Little Sisters the Poor or so many other faith-based organizations and for-profit businesses. It’s really unconscionable that the government has continued to push forward, which I also think is part of this story. It’s somewhat hard to believe that three years down the road, despite many, many losses in court cases around the country, in different circuits, that the government is insisting still, as it did with our case, that this mandate should be applied to EWTN.”

The case comes down to two main questions, according to Warsaw. The first is: does the government imposing the mandate that organizations like EWTN must provide contraception, abortion-inducing drugs, and sterilization services make up a substantial burden on EWTN’s constitutionally protected right of religious expression?

The Supreme Court has set a pretty high bar for the government to create that burden, Warsaw said, citing how it seemed that the 11th Circuit justices were deferring to decisions in the Hobby Lobby decisions and subsequent cases.

The second question to consider in this case, Warsaw said, is: does the government a compelling interest in trying to advance these kinds of procedures? Is the government’s approach to this and interest in advancing these procedures so compelling that it warrants the government taking over and forcing these procedures that organizations such as EWTN find morally repugnant?

Warsaw explained, “The government has been very insistent that this accommodation to organizations that are not exempt from the mandate altogether that that solves the problem, but it really doesn’t.” 

The reason it doesn’t, Warsaw continued, is that the process is fundamentally flawed. “The government has said that certain organizations are exempt from the mandate — churches, houses of worship and their integrated auxiliaries, which is a technical term for organizations that come under the church — those organizations are exempt. But then the government comes back and says [that] there are other organizations that aren’t religious enough to qualify for an exemption, so we’ll give you an accommodation.”

EWTN falls under this latter category. It raises the question, Warsaw said, of why the government is in a position to define whether EWTN is or isn’t religious enough. 

Under this exemption, the government requires that EWTN sign a form that will give the government the capacity to do one of two things: either to tell your third-party provider to provide these objectionable products and services to the people under your plan or the government’s Department of Health and Human Services will come in and essentially tell the health care plan administrator that they have to provide the services.

“Essentially, the government has hijacked the health care plan,” and Warsaw continued by pointing out that the government is usurping EWTN’s contractual rights and forcing the health care plan to comply.

Because EWTN has a self-funded health care plan; “we are the insurance company,” Warsaw said, “there is no other insurance company or other provider. What the government is really doing is taking over a portion of EWTN’s plan, using EWTN’s plan, using a plan that is funded by EWTN, to facilitate these things that we’ve said all along that we object to.”

The 11th Circuit Court should issue a decision in a three- to six-month timeframe. 

Please continue to keep this in your prayers, Warsaw asked of the entire EWTN community and faith.

Listen to the full interview on this week’s show.

Jeanette De Melo’s Conversation with Lori Windham

Lori Windham is Senior Counsel at the Becket Fund for Religious Liberty. She has extensive litigation experience, representing a variety of religious groups at every level from the district courts to the Supreme Court.  She has testified before the U.S. House of Representatives Judiciary Committee and the U.S. Commission on Civil Rights on religious freedom issues. Lori regularly appears in national media to speak about her cases.

“We feel like the court hearing went very well,” Windham said. She stated that the Court had tough questions for both sides. “They seemed very skeptical of the government’s claim that they wouldn’t burden EWTN’s religious exercise to force them to participate in the government scheme to deliver contraceptions and abortion causing drugs to their employees.”

EWTN has to prove it’s a burden and the government has to prove that they have a compelling interest for EWTN to provide these services.

The government argues that unintended pregnancies should be avoided and it’s important to women that they’re avoided.

“There are two important points keep in mind. One thing is that the law saws that even if your interest might be compelling in the abstract, it can’t be compelling in a particular case if you’re making lots of other exception to your rule,” Windham said. One exception are the millions of women who are not subject to this mandate under the Affordable Care Act. Another exception are the 34 million Americans who work for small businesses that are not required to provide this coverage.

There are several other means for women who feel they need this coverage. There are exchanges where they can purchase their health care policies. Also, the government already spends about 300 million dollars a year under Title 10, which is a program to provide contraception services to women.

So far, 300 plaintiffs have filed suit claiming that the mandate violates religious freedom. 

Windham explained the system this way:

“The government has set up a two-tier system for religious exercise. It has said that churches and ministries that they consider to be integrated auxiliaries of churches are entitled to full religious freedom, but religious ministries like EWTN are not entitled to full religious freedom. They only get something that the government calls an accommodation. This is a very convoluted system that has the religious employers tell the government that they’re not going to provide it, and then the government turns around and uses that as an authorization to force their insurer to provide it as part of their health care plan. So it really does nothing to remove the moral complicity, but the government has used this in court to say ‘Hey, we did something so that should be the end of the story.’”

Usually appeals courts make decisions in the two- to six-month timeframe.

There are a lot of these HHS Mandate cases working their way through the system. That’s something to watch, Windham said, because the government has been drawing lines about who is “religious enough” to protect and who is not.

Prisoners’ religious exercise is another issue to watch, she said, and whether or not those rights are going to be respected in prisons. The Supreme Court just handed down a decision under the same law that would protect EWTN saying that prisoners are entitled to religious freedom rights and that they can’t be restricted arbitrarily. 

“I think it’s very likely that the Supreme Court is going to take this up,” Windham said. “When you see so many appeals courts deciding the same issue around the same time, that’s usually a sign that a Supreme Court case is coming.” Because of the scheduling, it looks like it will be fall at the soonest.

Listen to the full interview on this week’s show.