Post-Election Game Plan for the HHS Mandate

Questions and answers with Richard Doerflinger of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities.

Richard Doerflinger, the associate director of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities.. Since 1980, Doerflinger has negotiated with legislators and the executive branch to advance pro-life legislation on Capitol Hill.

On Nov. 9, he spoke with Register senior editor Joan Frawley Desmond about the 2012 election’s impact on the battle to overturn the federal contraception mandate, as well as other pro-life ramifications. He explained why legal challenges filed by for-profit companies have met with some success in the courts. And he reported on another legislative opportunity to strengthen conscience protections — the upcoming Labor/HHS appropriations bill for Fiscal Year 2013, which includes an amendment similar to the Fortenberry-Blunt Respect for Rights of Conscience Act.


What have been the bright spots of the 2012 election for the pro-life movement?

The most positive development is the defeat of assisted suicide in Massachusetts — the “Death With Dignity Act.”

Massachusetts was deliberately chosen by proponents of assisted suicide as the most likely state to legalize the practice in the Northeast because it’s a liberal state and because it allows for laws to be made by referendum.

Assisted suicide has never succeeded by legislative action. Where it has passed in states like Oregon, it did so by appealing to people’s emotions in radio and television ads. When legislators look at the issue more carefully, they turn it down.

There are now no Republican members of Congress at all in Massachusetts in the House or Senate, and  it makes the defeat of the initiative all the more remarkable. The combination of moral and practical arguments appealed to different voters.

Montana passed a new law to require parental notification on abortion. The parental-notification issue is widely supported across the country, but there were legal problems with the current statute because there had been some court action, which kept the statute from being applied effectively.


President Obama’s re-election means that the federal contraception mandate still stands. What strategies are now being deployed to tackle the narrow religious exemption and the need for conscience provisions for other private employers who oppose the mandate on religious or moral grounds?

So far, we have pursued remedies to the contraception mandate in all three branches of government, and all those avenues remain open.


Post-election, what are the prospects on Capitol Hill of passing legislation that strengthens conscience protections to remedy the problem?

The election left things largely as they were: We count the same number of votes in the new Senate as in the old — not in terms of party affiliation, but in terms of pro-life position.

Olympia Snowe [R-Maine], who regularly voted against our legislation, is gone. But the new Sen. Joe Donnelly, D-Ind., has almost always voted to support pro-life legislation.

The only time that a conscience measure for the mandate was considered in the Senate it got 48 votes, with very little time to explain the issues.

Getting to 50 or 51 votes in the Senate could happen, especially if you can attach legislation to a must-pass vehicle, where you have leverage to trade back and forth, to get policy riders approved. We are not giving up on that and will continue to pursue this agenda.


Would the president sign such a measure into law?

Perhaps if the alternative is to veto a bill he favors, like an entire appropriations bill. Then perhaps he would.

If the courts are continuing to bring injunctions against the mandate, the administration may not want to continue pursing 35 different lawsuits on this and will perhaps back down.


At this point, how might the House press for a legislative remedy to the mandate?

There is a continuing resolution that keeps the government funded until March. They don’t have to do the appropriations bill until then, but there are rumors that Congress and the White House — to avert the “fiscal cliff” — will have to do a deal on revenue and spending. Some would like the appropriations bill to be part of that [remedy]. Even before the end of this year, we may have a debate on this issue.

Right now, the House committee draft of the Labor/HHS appropriations bill has language like that of the Fortenberry-Blunt bill. I believe the House leadership will fight for that in negotiations with the Senate. Where that comes on the priorities list, we can’t say.

It is now becoming very clear that the Affordable Care Act is here to stay and that we really need relief. We will be urging Catholics to write to their congressional representatives in support of that provision — Section 537 of the Labor/HHS appropriations bill.

We see every reason to continue our efforts in both Congress and the courts and to continue to ask the administration to take a more flexible view of the conscience issues involved.


What are the bright spots on legal challenges to the mandate?

In two cases, federal courts have given individual businesses a preliminary injunction against the mandate.

If even a family-owned business can be exempt because the individuals involved are Catholics, how much stronger would the case be for Catholic institutions?


Why have two for-profit companies received temporary injunctions, while Church-affiliated plaintiffs have failed to obtain a reprieve?

For-profit companies said they needed it now because they are required to comply now. But religious organizations received an extra year to comply — their deadline is next August  — and so the administration has [filed papers in court that] said the issue is not ripe [for nonprofits].

This has meant that you had to lead with cases where your argument might be weakest — a for-profit company with a religious-freedom right. Yet two such cases received preliminary injunctions.

The government is arguing that if you run a business — if you are a for-profit company — you don’t have religious freedom. They call for-profit businesses “secular” companies, which seems strange in the case of a Bible publisher.

In fact, there are religious orders that sell items, from produce to jams and jellies and handmade caskets, to support themselves and make money. Does that mean they aren’t monks? Of course not.

The families that own these for-profit companies say, “We are citizens and owners of these companies, and we have a religious-freedom right. We want to run companies that are consistent with our religious beliefs.”


Haven’t the for-profit companies that filed legal challenges documented how their faith has shaped their internal policies and other business practices?

In First Amendment jurisprudence, the usual practice is that if someone says [a law] will burden my religion, it’s not the government’s job to start an investigation.

In a Missouri case where an injunction has been denied so far, the judge said that having to make this indirect payment to health coverage is not a substantial burden on religion.

I am not a lawyer, but I have been told by lawyers that that is an unusual statement for a judge to make in a First Amendment case. Usually, if someone says, “This burdens religion — my religion teaches against this,” it’s not the court’s job to say, “That’s not so bad.”

The government is second-guessing your theology for you. We are going to have a government definition of Catholic teaching on material cooperation? It doesn’t make any sense.

No final decisions have made in the challenges filed by for-profits in Colorado and Michigan that received preliminary injunctions against the mandate.

Joan Frawley Desmond is the Register’s senior editor.

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