ST.LOUIS — When Paul and Teresa Wieland, Catholic parents of three daughters, filed suit against the Health and Human Services’ contraceptive mandate, MSNBC ridiculed their legal challenge.
“One Missouri lawmaker has taken the fight against birth-control coverage to a new and very personal place: his own daughters, two of whom are adults,” reported MSNBC, in a September 2014 story that referenced then-Missouri state Rep. Paul Wieland.
Wieland, of Imperial, has since won a seat in the Missouri state senate, where other pro-life lawmakers have also been forced onto a health plan that provides cost-free contraception, surgical sterilization and abortion-inducing drugs, as required under the HHS mandate.
But while the cable network framed the lawsuit as an attempt by the Wielands to ask “the federal government to enforce their parental guidelines on their daughters,” Wieland offered a different take.
“My daughters are free to make any choice they want, but my wife and I should not be required to enroll in a plan that includes these drugs,” he told the Register.
Now, more than a year after the Wielands filed their initial lawsuit in November 2013, their attorney will get a chance to test that argument in court.
The Wielands’ legal challenge stalled after a lower court ruled that the couple did not have standing to challenge the mandate. But on July 20, the 8th Circuit Court of Appeals ruled that the couple did have “standing to sue.”
Tom Brejcha, president and chief counsel of the Thomas More Society, which represents the Wielands, celebrated the unanimous decision as a key milestone in the ongoing legal battle to broaden the mandate’s narrow religious exemption.
After Hobby Lobby, a closely held company run by a Christian family, won its lawsuit against the mandate at the U.S. Supreme Court in June 2014, said Brejcha, it was past time for individual believers to step up and defend their right to opt out of health plans that violated their sincerely held beliefs.
The Eternal Word Television Network (EWTN) has also filed a legal challenge to the HHS mandate. The Register is a service of EWTN.
The issue of standing did not arise when Hobby Lobby filed its lawsuit, because the plaintiff was an employer challenging a federal law that required business owners to provide the new coverage authorized under the Affordable Care Act. But the Wielands are not employers, so their standing posed a challenge to their lawyer.
‘Standing to Sue’
However, a three-judge panel on the 8th Circuit found that the Wielands had “standing to sue” because the federal mandate, which requires that most employer-based health insurance provide the objectionable services, caused the family to lose their old plan, which explicitly excluded such coverage.
Further, the court found that the mandate had “caused injury” to the plaintiffs, by forcing them on a plan that violated their religious beliefs.
Finally, the Wielands also had standing to sue because the federal mandate violates Missouri Revised Statutes (Section 191.724), which state that “every employee ... has the right to decline or refuse coverage for contraception” when it is against their religious beliefs.
“It was important to win standing in this case,” said Tim Belz, the Wielands’ attorney, who serves as special counsel to the Thomas More Society.
Now, Belz is eager to argue the merits of the case, and he firmly believes the Wielands will prevail.
“In Missouri, we have this wonderful statute that allowed people to opt out of contraception coverage as a matter of law,” explained Belz.
“Then Obamacare comes along, with the mandate, and in the middle of 2013, the company that provided insurance to public employees like my clients quit providing the plan that excluded contraception.”
“They said that under Obamacare we have to provide a different plan,” he noted.
Like Hobby Lobby and other HHS plaintiffs, the Wielands claim that the federal law violates their religious liberty, as guaranteed under the Religious Freedom Restoration Act.
By forcing the Wielands and their three daughters onto a plan that violates their sincerely held religious beliefs, the mandate places a substantial burden on their religious freedom.
Doing without health insurance is not an option for the Wielands: Like Hobby Lobby and the Little Sisters of the Poor, these Catholic parents contend that their faith requires them to maintain health coverage for their children as an important moral and social good.
With that in mind, attorney Belz explains the legal argument he has constructed for his clients:
“If Hobby Lobby doesn’t have to provide this kind of coverage to their employees, then Mom and Dad don’t have to provide it to their daughters.”
Hobby Lobby’s lawyers also said that if the state had a compelling interest in the provision of cost-free contraception, it could achieve this goal by other means. Likewise, Belz and his clients say the state is free to find another way to offer these services to the Wieland daughters — without using the parents’ health plan.
Can it Pass Muster In Court?
The question now is whether Belz’s argument will past muster in court. Two legal scholars contacted by the Register were skeptical.
Gerard Bradley, a law professor at the University of Notre Dame, believes the case is unlikely to win on the merits because the court will not view the enrollment and premiums for the Wielands’ new health plan as a substantial burden on the parents’ religious freedom.
In contrast, courts take a different view of the burden incurred by objecting employers because the “cost-free” services are provided through their health plans.
“It is unlikely that these parents will prevail,” Bradley told the Register.
“The arguments will overlap with those in Hobby Lobby, up to a point, and raise the same central question so many of the nonprofit cases now turn upon, namely, whether there is a ‘substantial burden’ upon the Wielands’ exercise of religion,” by having to be enrolled and to pay “some premiums for a policy with contraception coverage.”
“Hard to say what courts will make of that. Most of them will say that the burden, if any, is [minimal],” Bradley concluded.
Douglas Laycock, a leading scholar on religious freedom at the University of Virginia School of Law, told the Register that the Wielands’ case raises practical issues.
“It does not track Hobby Lobby, because it might be much more difficult to accommodate,” said Laycock.
He speculated that an accommodation “might require two separate insurance pools, which may or may not be workable. You need a health-insurance expert, not me,” he quipped in an email message.
But Paul and Teresa Wieland are committed to challenging — and changing — the federal law.
“Being Catholic parents, we find it offensive that government is forcing us to be in a plan that covers abortifacients,” Paul Wieland told the Register.
“We have taught our daughters about Catholic teaching on life since their baptism, and now the government is interfering in the way you raise children,” Wieland continued.
Parental Influence, Strengthening Family
While media coverage of the case has largely focused on the state senator, wife Teresa said she was equally outraged by the loss of their previous plan.
“I was really upset. I have always followed the faith, and I have tried to raise three daughters in the faith,” she told the Register during a telephone interview from the couple’s insurance business, based in Imperial, a St. Louis suburb.
“It is very difficult when the outside world doesn’t help.”
She admitted that nasty comments in online forums about her supposed efforts to control her daughters’ actions grated on her.
But she was struck by the fact that her critics support a law that allows adult children to stay on their parents’ health insurance until they turn 26, yet these same critics dismiss the notion that parents should have any influence on their adult children’s decisions.
Still, she has found solace in “prayer and the Bible.” And she has been heartened by steady support from fellow Catholics in the community.
As she sees it, the couple’s campaign has provoked dueling responses — endorsements from fellow parishioners and a good deal of negative feedback on social media.
Yet Sen. Wieland said that even the “rudest tweets, texts and emails” haven’t discouraged him. Thousands of subscribers depended on the same insurance coverage he and his family once enjoyed, and some have expressed their support for his legal fight, he noted.
“I have always been a person who thought that someone has to do it, someone has to take the arrows and rocks,” he said, noting his decision to enter politics.
So when he learned that he had to join a health plan that included contraceptives, it didn’t take him long to contact the Thomas More Society and file the lawsuit.
“They warned that it wouldn’t be easy, but I said, ‘We aren’t happy to just sit there and complain about stuff; we want to do something.’”
Now, the couple is preparing for their case to be heard by the lower court, though there is a chance that the full panel of judges on the 8th Circuit could review the unanimous decision issued this week.
Whatever comes next, the Wielands stand united.
“This lawsuit has strengthen our convictions in the faith,” said Teresa Wieland.
“It showed us that our local community is supportive and encouraging. It has strengthened our family.”
Joan Frawley Desmond is the Register’s senior editor.