Courts offer mixed rulings on HHS mandate

The travesty of the Health and Human Services mandate in the Affordable Care Act continues to rankle. The mandate requires employers to underwrite for employees contraceptives, including abortion-inducing drugs such as Ella, and female sterilization through their insurance programs. The law is driving complainants of many religions to court.

            Some religious non-profits have a safe harbor and do not have to fund health plans that cover contraceptives and sterilization until after August 2013. For-profit companies, however, are under the gun now. The for-profit business owners who object to the mandate either must violate their consciences and pay for plans that include services they morally oppose or hold to their principles and face backbreaking fines.

            The Becket Fund reports that there are 43 cases and over 110 plaintiffs challenging the mandate in court. So far, at least 12 for-profits have obtained initial rulings that take up the merits of their case, and nine of those rulings have granted the companies preliminary injunctive relief against the mandate.

            Reasons for the decisions vary. In some instances the court recognizes that the government is likely violating the Religious Freedom Restoration Act, which forbids the federal government from substantially burdening religious exercise, unless it is the least restrictive means of furthering a compelling government interest. One plaintiff suggested that if the government is bent on saturating the nation with contraceptives, it might hand them out for free rather than force churches and others to pay for them.

A Federal Court in Missouri issued a temporary restraining order on December 31 invoking both the First Amendment and RFRA in Sharpe Holdings, Inc. v. United States Department of Health and Human Services. According to the blog Religion Clause, “the court concluded that under the Religious Freedom Restoration Act the mandate and its penalties would substantially burden plaintiffs’ free exercise rights.” It added also that “for 1st Amendment purposes, the mandate is not a neutral law of general applicability.”

Said the court: “[T]he ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees.” It agreed with plaintiffs’ argument that the “mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes. Burdens cannot be selectively imposed only on conduct motivated by religious belief.”

In Michigan, a federal district court held that the property management company, Domino’s Farms Corp., and its owner Thomas Monaghan (founder of Domino’s Pizza) had adequately alleged that the mandate imposes a substantial burden on Monaghan’s Catholic religious beliefs. The court noted that the Supreme Court has held that “‘putting substantial pressure on an adherent to modify his behavior and to violate his beliefs’ substantially burdens a person’s exercise of religion.” The district court added that for itself, “the Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate....  Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions.”

 The court added that the government had not carried its burden under the RFRA showing that it had a compelling interest or used the least restrictive means in burdening plaintiff’s free exercise.

Decisions conflict. The judge in Grote Indus. v.Sebelius in Indiana ruled against the plaintiff and declared that the burden of the mandate is “likely too remote and attenuated to be considered substantial.”

Personally, it is hard to see how forcing someone, against his conscience, to purchase insurance coverage that includes abortion-inducing drugs could not be a substantial burden. In a Chicago courtroom, the Seventh Circuit judges in Korte v. Sebelius got it right when they responded to similar arguments that “the religious‐liberty violation at issue here is inherent in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.”

Simply put, the issue is not about using contraceptives, it is being coerced to offer or purchase a plan that covers them. Clearly courts should not be in the business of telling people – be they businessmen or bishops – what constitutes a substantial burden on their exercise of religion. The few courts that have ruled the wrong way so far have impermissibly delved into a moral analysis of religious claims.

To Accommodate Caesar or to Follow Conscience

Senior Judge John L. Kane of the District Court for the District of Colorado did his Solomon-like duty July 27. The Carter appointee issued an injunction against the government’s Affordable Care Act mandate that forces employers to pay for contraceptives, including abortion-causing drugs, and female sterilization for employees.

The mandate he’s forestalled in Newland v. Sebelius comes from Health and Human Services’ preventive services mandate under the Affordable Care Act. It went into effect August 1.

The employer, Denver-based Hercules Industries, makes heating, ventilation, and air-conditioning parts. It is owned by four Catholic siblings, the Newlands, who run their business according to Catholic principles, even if it might affect the bottom line. The company is self-insured and offers a generous health plan but doesn’t fund contraceptives, sterilization and abortion. The Newlands sued HHS for violating their First Amendment rights, which guarantee free expression of religion, and the Religious Freedom Restoration Act (known as RFRA).

The judge weighed two rights: the individuals’ claim that the HHS mandate would violate their religious beliefs and the government’s claim that it had to do so in order to meet the public good. He then looked at the Religious Freedom Restoration Act. It states that the government may not “substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.” RFRA adds that the government may only justify a substantial burden of the free exercise of religion if the challenged law “(1) is in furtherance of government interest; and (2) is the least restrictive means of furthering that compelling government interest.”

Judge Kane’s ruling found that the government’s case for compelling government interest was undermined by the fact that it already has offered exemptions to 190 million health plan participants already.

He also noted the government has a greater interest in upholding the individuals’ free exercise rights than in the government’s claims that it was acting to improve health care for women and children.

           

Could there be another way to make the government happy? The plaintiffs offered a solution that would not violate their religious freedom and suggested “government provision of free birth control,” even though they would not recommend this as a matter of public policy.  They further pointed out that the government already provides free contraception to some women, so their suggestion should not be seen as infeasible by the government.

In some ways this is a small victory, for the injunction stands only until the court case is decided. It affects but one company. It is huge, however, because it is the first HHS mandate case to consider religious freedom issues, and religious freedom won. Caesar may figure out a way to rain down contraceptives from the clouds, but in no way should the government order religious groups and individuals to violate their consciences and underwrite the mandate that opposes the clear teaching of their church.

Religious Freedom Campaign – It’s Only Just Begun

The bishops’ Fortnight for Freedom (www.fortnight4freedom.org), June 21-July 4, is over, but the concern for religious liberty has only begun to be heard. The two-week launch got people listening and praying. Now where do those who want to stand up for religious freedom go?

The answer is everywhere because religious freedom is a worldwide concern. Read the newspapers and you see massacres in churches in Nigeria and Iraq. Look to neighboring Cuba and you see how religious freedom has been severely restricted under the Castro regime.

Look in the United States, where freedom of religion is guaranteed by the First Amendment’s free exercise clause, and you see a sophisticated type of assault.  It is unbloody, but far-reaching.  Ironically, the assaults are not from some guerilla group or despot, but from the government. Foreign nations that look to the U.S. to protect their religious freedom have to shudder.

The assaults vary, but what they have in common is preventing religious bodies from operating according to their moral standards. For example, through the new Affordable Care Act most employers, including many religious ones, are compelled to provide free-of-charge to employees and their families contraception, female sterilization, and abortion-inducing drugs, even when they violate church teachings. Government in a miserly gesture says it will grant an exception to entities it defines as religious enough to merit protection of their religious liberty. That means the parish church is religious enough but not the church’s hospitals, schools, colleges, soup kitchens and other social services. You may think the latter obviously are religious works but the government says they are not if you serve needy people other than your co-religionists.  Catholicism calls Catholics to help those in need.

Hard to live out the free exercise of your religion with this HHS mandate, the first of its kind in U.S. history. To add insult to injury, for centuries these church services have very effectively helped people who otherwise would have had to rely on government for such care. In fact, one out of six people in the U.S. who need hospital care get it at a Catholic hospital.

Catholic foster care and adoption services were forced to close in major metropolitan areas when Boston, San Francisco, the District of Columbia, and the State of Illinois drove local Catholic Charities out of the business of providing adoption or foster care services. They did it by revoking their licenses, by ending their government contracts, or both because those Charities refused to place children with same-sex couples or unmarried opposite-sex couples who cohabit. While the Catholic Church holds that a marriage is between a man and a woman and that children are best raised in a mother-father family unit, the government says if you hold that religious view, you have to give up a longstanding church ministry through which orphaned or otherwise needy children have been helped.

It’s not just Catholics who are afflicted.  New York City adopted a policy that barred the Bronx Household of Faith and other churches from renting public school property on weekends for worship services, even though nonreligious groups could rent the same schools for many other uses. Is prayer more threatening than hoops? A few days ago a federal court finally ended this discriminatory policy, though appeals may continue.

In its entire history, The University of California Hastings College of Law has denied student organization status to only one group, the Christian Legal Society, because it required its leaders to be Christian and to abstain from sexual activity outside of marriage.  Does it threaten the public well-being to require a Christian organization to be led by a Christian?

A New Jersey judge recently found that a Methodist ministry violated state law when the ministry declined to allow two women to hold a “civil union” ceremony on its private property. Also recently, a civil rights complaint was filed against the Catholic Church in Hawaii by those wanting to use a chapel to hold a same-sex “marriage” ceremony. Is the country better for such in-your-face rejection of a church’s teaching?

The religious freedom campaign has an uphill battle before it, but it is hard to imagine our nation won’t be better for it. Not to mention those nations where people subjected to bloody religious battles barely have a prayer now.

Flawed Affordable Care Act Needs Fixing

Health care for all has been a goal for the U.S. bishops for almost a century. Yet despite the apparent Supreme Court victory June 28 for the Affordable Care Act (ACA), the nation still does not have health care for all.

Most glaring is the lack of protection of the unborn, because the ACA allows use of federal funds for elective abortion. Rather than protecting children in utero, the health care law endangers them when it takes the unprecedented step of authorizing federal funds to subsidize health plans that cover such abortions. In addition, with the Health and Human Services mandate to coerce employers and employees to pay for female sterilization and contraceptives, including abortion-inducing drugs, children in utero are endangered more than they were before. When the ACA allows federal funding of abortion in various provisions, it contradicts longstanding federal policy in all other health care laws, such as Medicaid, Medicare and the Federal Employees Health Benefits Program.

The Affordable Care Act also excludes undocumented immigrants from the new health care exchanges, even if they simply want to purchase insurance with their own money. This is a cut-off-your-nose-to-spite-your-face action, given that the ACA can’t work unless as many people as possible buy into the system. The stance also drives up health care costs for all of us because undocumented immigrants who cannot purchase insurance will be forced to seek medical care in the more expensive emergency room setting. For some, politics requires you fight against undocumented immigrants everywhere, despite the fact that about 11 million of them have become part of the fabric of America, holding jobs, paying taxes and making the economy work.

Some people will benefit from the Act. People with pre-existing medical conditions cannot be discriminated against, a merciful outcome. Young people can stay on their parents’ insurance until they are 26, certainly good now when post-college does not automatically mean a good job with insurance benefits. The exchanges will help working families who don’t have insurance through their employers. Uninsured poor people will be helped by the Medicaid expansion if their state pursues the expansion, which the Court’s ruling has now made optional.

But the bill is significantly flawed and the Administration and Congress need to face this when they stop popping champagne corks celebrating an apparent victory.

1.    ACA allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting longstanding federal policy. This law can be fixed by amending it to bring it into line with other health care legislation, for example by passing the Protect Life Act (HR 358) that the House has approved.

2.    ACA fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context.  This has been illustrated in dramatic fashion by the HHS mandate to force religious and other employers to cover sterilization and contraception, including abortifacient drugs. Most of the conscience problems are problems of omission, because the act does not include protections of conscience that other federal programs have. This law can be fixed also by amending it to bring it into line with other health care legislation, by enacting the Respect for Rights of Conscience Act (H.R. 1179) supported by a majority of the House and a near-majority of the Senate.

3.    ACA fails to treat undocumented immigrant workers and their families fairly, leaving them worse off by not allowing them to purchase health coverage in the new exchanges created under the law, even if they use their own money. Congress could easily change this.

Getting nearly universal health care is a first step. Now Americans need to get it right. This flawed Act needs fixing.