Advocates for religious freedom were stung by the latest news from the appellate bench.
On July 14, the 10th Circuit Court of Appeals ruled against the Little Sisters of the Poor, who had appealed a lower-court decision in their legal challenge to the Department of Health and Human Services’ contraceptive mandate.
The Little Sisters are among the 140 religious plaintiffs that have resisted the Obama administration’s three-year campaign to coerce their participation in the provision of cost-free contraception, abortifacient drugs and surgical sterilization through their employee health plans.
All of the plaintiffs in the HHS lawsuits have had to take time from their ministries to fight the federal rule, but also to pre-empt efforts to set new legal precedents for government intrusion in the operations of religious nonprofits.
Indeed, as we await decisions in three other appeals pending before the appellate bench, we can’t lose sight of the fact that these lawsuits have already changed our national conversation about religious freedom.
As the executive branch of our government aggressively tests the limits of free-exercise protections, the Little Sisters and other plaintiffs have stood their ground. In the process, they have shaken our complacency and stirred a desire to deepen our commitment to the “first freedom.”
“We live our lives very far from the public eye. We are not political activists at all. But we fear that the mandate could set a precedent for greater government intrusion into our ministry,” explained Little Sister Constance Veit, in a statement following the circuit court’s decision.
In a split decision, the 10th Circuit rejected the Little Sisters’ legal argument, which asserts that the White House’s accommodation violated their religious freedom, as guaranteed under the Religious Freedom Restoration Act. The latest version of the government accommodation directs employers like the Little Sisters to opt out of compliance with the law by signing a form or writing a letter that confirms their faith-based objection and their intent not to comply with the law.
The White House has suggested that the objecting employer’s insurer, or — in the case of a self-insured employer — a third-party administrator (TPA) will provide the coverage. But the mechanics of this scheme have not been worked out. “[E]ven if the birth-control policy is ultimately upheld in court, the government could face practical problems lining up third parties to pay for contraceptives over an employer’s objections,” reported The New York Times.
Further, the Little Sisters contend that the very act of writing a letter or signing the government-provided form works as a “trigger” for coverage, and thus it still makes them complicit in the provision of services that violate their moral beliefs. As our front-page story explains, the 10th Circuit dismissed these objections and effectively endorsed the administration’s stance, while the dissenting judge sided with the Little Sisters.
Suffice it to say that the Register — a service of the Eternal Word Television Network, which has filed its own legal challenge to the mandate — believes that the Little Sisters should be able to decide whether such actions violate their sincerely held religious beliefs. And if the administration has a compelling interest in the provision of free contraception, we think it, not the Little Sisters, should tap government health exchanges and programs to provide the service.
But that isn’t likely to happen. Instead, with a total of five appellate courts ruling in its favor, the White House will wait to see if a split decision might prompt the U.S. Supreme Court to take up one or more cases.
We surely need to pray for some good news from the bench. But let’s also consider what we’ve accomplished during the past three and a half years. Back in January 2012, when the administration approved the HHS mandate, the Catholic Church moved into uncharted territory. Yet, in short order, Church leaders helped to organize a powerful legal defense, reached out to allies in other Christian churches and faiths and launched the “Fortnight for Freedom.”
Their first challenge was to explain why the narrow religious exemption in the mandate constituted an unprecedented threat to religious freedom. Pundits ridiculed Cardinal Timothy Dolan of New York, then the president of the U.S. Conference of Catholic Bishops, for demanding changes to the federal law. Still, the U.S. bishops persisted in their campaign. They challenged the government’s effort to impose a two-tier definition of what constituted a “Catholic” employer, with parishes and chanceries winning an exemption, while religious nonprofits and individual employers were required to comply.
The U.S. bishops also insisted that family businesses should be able to secure an exemption. In doing so, they testified to the value and power of faith in the workplace and prepared the faithful for fresh challenges to free-exercise rights in the wake of “marriage equality.”
Then the bishops and their allies filed suit against the mandate in courthouses across the country.
Between 2012 and 2014, ongoing negotiations and litigation forced the White House to make one concession after another, from an extension of the deadline for compliance to an expanded exemption for houses of worship and from a reprieve for family businesses, following Hobby Lobby’s victory, to ongoing iterations of the accommodation for religious nonprofits. However frustrating and imperfect this legal and political struggle has been, we should celebrate what has been accomplished. Indeed, the White House has only won approval from appellate courts because it was forced to sharply reduce the demands it placed on religious nonprofits.
The Register echoes the Little Sisters’ urgent request for a full exemption from the mandate. “The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health-insurance contract that provides abortion-inducing drugs, contraception and sterilization. This is a grave violation of religious freedom and cannot stand,” read a March 2012 statement signed by Cardinal Dolan and 500 other religious leaders across the nation that has retained its clarity and urgency.
“It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.”