Ave Maria University Files Legal Challenge Against HHS Mandate

President Jim Towey, who once led President George W. Bush’s Office of Faith-Based Initiatives, defends the university against state intrusion.

NAPLES, Fla. — Just six years ago, Jim Towey was directing the White House Office of Faith-Based and Community Initiatives, advancing President George W. Bush’s policy of effective collaboration between religious institutions and the federal government.

Today, as president of Ave Maria University, Towey announced that he had approved a legal challenge to a controversial federal law that requires this Catholic institution to provide contraception, abortion-inducing drugs and sterilization in its employee health plan.

“It is a sad day when an American citizen or organization has no choice but to sue its own government in order to exercise religious-liberty rights guaranteed by our nation’s Constitution,” Towey stated at a press conference.

“Allowing a U.S. president of any political party or religious affiliation to force conformance to his or her religious or secular orthodoxy through executive action is a perilous precedent,” he said in a statement released today.

Towey’s decision to sue the federal government underscores the shift in presidential priorities since Barack Obama took up residency in the White House in 2009.

Bush’s close collaboration with religious groups offended secularists, who charged that his policies violated the Anti-Establishment Clause of the U.S. Constitution.

In 1999, Bush previewed his proposed policy of harnessing the institutional and redemptive power of church-affiliated groups working with struggling Americans in inner-city homeless shelters, substance-abuse programs and other effective grassroots initiatives with limited resources to aid the poor and marginalized.

“In every instance where my administration sees a responsibility to help people, we will look first to faith-based organizations, charities and community groups that have shown their ability to save and change lives. We will make a determined attack on need, by promoting the compassionate acts of others,” vowed Bush.

Obama, for his part, has maintained the Office of Faith-Based Initiatives, but he also severed or reduced federal contracts with some Catholic organizations, which refused to comply with new requirements that they provide “the full range of reproductive services.”

Ave Maria is the second Catholic college to legally challenge the contraception mandate, approved by Kathleen Sebelius, the secretary of the U.S. Department of Health and Human Services, on Jan. 20, despite a long campaign waged by the U.S. Catholic bishops to repeal an interim final rule announced in August 2011. North Carolina’s Belmont Abbey College, a Benedictine institution, has already filed suit.

Ave Maria will be represented pro bono by the Becket Fund for Religious Liberty, a public interest group, in a lawsuit that names as defendants Kathleen Sebelius specifically, the Department of Health and Human Services, and other federal agencies.

“The federal mandate puts Ave Maria in a terrible bind,” said Kyle Duncan, general counsel for the Becket Fund, which filed suit this morning on behalf of the university, established by Tom Monaghan, the founder of Domino’s Pizza.

“Either it betrays its faith and covers the drugs or else it ends employee health benefits and pays hundreds of thousands in annual fines,” added Duncan.

The Becket Fund also represents Colorado Christian University (a nondenominational Christian University outside of Denver) and the Eternal Word Television Network (EWTN).

The National Catholic Register is a service of EWTN.

On Feb. 10, after sustained and growing opposition to the HHS mandate by Catholics throughout the nation, President Obama announced that he would modify the federal rule. He said he would direct insurance companies, rather than the religious organizations, to pay the costs of contraceptives covered under co-pay-free “preventive services for women,” mandated by the new health bill.

The U.S. Conference of Catholic Bishops rejected the president’s “accommodation” as inadequate and vowed to pursue legal and legislative remedies.

In a Feb. 10 statement, the bishops attacked the HHS mandate as both a “needless government intrusion in the internal governance of religious institutions” and an act of “government coercion of religious people and groups to violate their most deeply held convictions.”

The USSCB said it was reviewing legal options and strongly endorsed the Respect for Rights of Conscience Act, legislation that has attracted increasing support in the Republican-controlled Congress.

The Senate is expected to vote on the bill in the next couple of weeks. Meanwhile, the House Committee on Oversight and Government Reform has already held hearings on the First Amendment issues posed by the HHS mandate.

At the Feb. 16 House hearing, John Garvey, president of The Catholic University of America and a constitutional scholar who previously served as the dean of Boston College Law School, echoed the bishops’ criticism of the president’s “accommodation.”

“The proposed solution is this: When a religious institution like The Catholic University of America objects to including mandated services in its health plan, the insurance company with which we contract will have to furnish those services to our subscribers (at no added cost to the subscribers).”

“It is hard to see how this revision changes the picture,” Garvey concluded, noting that insurance companies had routinely passed on new costs to subsequent contracts.

He told the assembled members of the House committee that he suspected “HHS is acting on a political agenda about how women should live their sex lives.”

The Feb. 10 announcement discloses this agenda in fairly plain terms. “A broader exemption,” the announcement states, “would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits described above.”

“HHS might wish to increase the rate of abortions, sterilizations and contraceptive use by students and employees at The Catholic University of America. It has shown a desire to conscript the university and its insurer in the service of that agenda. But it is our religious belief that these activities are wrong. A decent respect for the principle of religious liberty should leave us free to act on our belief,” Garvey argued in the statement he provided to the House committee.

In an interview with the Register, Garvey said he continued to weigh the possibility that The Catholic University of America might file suit against the federal government.

“I wouldn’t rule it out. But it would be preferable to find a solution that didn’t involve litigation,” said Garvey, a consultant to the USCCB Ad Hoc Committee on Religious Liberty, which is spearheading the bishops’ response to the mandate and will provide guidance to church-affiliated social agencies, hospitals and universities.

Joan Frawley Desmond is the Register’s senior editor. We will update this story as news becomes available.

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