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.

Voting: A Matter of Conscience

Serious people feel overwhelmed going into the 2012 election. Seeing many choices or none, some seek a rationale to stay home on Election Day, but to give in to such discouragement is political despair.

Fortunately, conscience can guide us, even when we don’t know it. The voice of conscience can include a feeling of disconnect – a this-doesn’t-feel-right sensation, and a sense of puzzlement – and the sense that this-doesn’t-gel-with-what-I’ve-been-taught. People of conscience weigh key moral issues. They study and struggle with the questions at hand. They engage in a lifetime effort to develop the fine-tuned moral sensitivity needed to understand deeply Church teaching on critical issues.

Issues that directly affect innocent human lives, such as abortion and euthanasia, are primary and demand serious consideration. Since 1973, there have been an estimated 53 million abortions in the U.S. Two states, Washington and Oregon, have legalized physician-assisted suicide for persons with terminal illnesses, called “death with dignity.” Concern for other life issues, such as the death penalty, is vital. Today the Church questions if execution can even be used in modern society since we now have secure ways to keep people from harming others. Since 1973, there have been 138 documented cases of innocent people eventually freed from death row. After a ten-year hiatus the death penalty was reinstituted in our country in 1976. Has this contributed to the responsibility, restoration and rehabilitation needed in our criminal justice system?

Millions of undocumented persons demand our compassion. An estimated 11.1 million have made the U.S. their home, raising families and contributing to the economy. Some came here as children; this is the only land they know. There is an immigration problem and justice demands a humane solution to it, one that respects the responsibilities and rights of all.

There is a move to redefine marriage. The marriage of a man and a woman is the foundation of the family and the basic cell of society, yet various proposals seek to erode and ultimately redefine the perennial meaning of marriage in the law. The contribution marriage makes to the common good is essential, and protection of marriage is another matter of justice.

The growing disparity between rich and poor means most of the world’s resources are in the hands of a small percentage of its people. More than 50 percent of the world’s assets are owned by the richest two percent of adults … the bottom half of the world population own only one percent of the wealth. In our nation 46 million people live below the poverty line, established at $23,113 for a family of four. Approximately 25 million people are unemployed or underemployed – a real unemployment rate of 15.6 percent.

The Constitution heralds religious liberty in the First Amendment, yet in recent years religious groups have had to fight for this right. Some opponents dismiss religious freedom as inconsequential. We’ve seen legal efforts to deny the church the right to participate in government programs unless it cedes its religious principles. We’ve seen government officials dismiss those who defend marriage as between one man and one woman as “bigots.” We’ve seen the state try to define who can be a minister in a church. We see that people are persecuted for their faith around the world, losing their homes, even their lives, for lack of religious freedom.

State-sponsored violence through war and other aggression results in thousands of deaths and millions of disrupted lives. The Church’s long-held just war teaching suggests war is permissible only if the damage inflicted by the aggressor is lasting, grave, and certain; all other means of putting an end to the aggression have been shown to be impractical or ineffective; there are serious prospects of the war’s success; and the use of arms does not produce evils and disorders graver than the evil to be eliminated.

Other issues are at stake in the coming election but the above issues deserve particular concern. Can they be discussed civilly? Can individuals look at them from several sides and consider what resonates with their conscience? These are matters for study and prayer before anyone enters the voting booth.

Amish, Ok. Catholics, No.

The Amish are exempt from the entire health care reform law. So are members of Medi-Share, a program of Christian Care Ministry. Yet, when the Catholic Church asks for a religious exemption from just one regulation issued under the law – the mandate that all employers, including religious institutions, must pay for sterilization and contraceptives, including abortion-inducing drugs – the Administration balks.

The government respects the First Amendment that guarantees the right to freely exercise one’s religious beliefs, but only to a point. In the health care law it picks and chooses which beliefs it respects. The Amish do not believe in insurance, and the government understands. Christian Care Ministry believes people should form a religious community and pay medical bills for one another, and the government says okay. Yet when the Catholic Church opposes being forced to pay for services that violate its beliefs, the Administration says “tough.”

What is so special about this mandate that it cannot be touched? It was added after Congress passed the health care law and offers no exemption for religious charitable or educational institutions. It will not accept Catholic charities and schools as “religious enough” unless they hire only Catholics, serve only Catholics, have the narrow tax exempt status granted to houses of worship, and teach religion as their purpose.

Amazingly, this mandate has more force than the overall health care law. In fact recent regulations allow states to decide which “essential health benefits” to require in health plans, such as hospitalization, prescription drugs and pediatric services. At the same time, all insurance plans must include the objectionable services mentioned above. Here federal law trumps state law and threatens to fine into submission institutions that dare oppose it. The going rate is at least $100 per day per employee.

What has the government got against the Catholic Church? Has it forgotten the contributions the church has made to the poor and needy for centuries?

Catholic elementary and secondary schools provide the only real alternative to public schools in many parts of the nation. Catholic colleges offer outstanding education, be it at the university or the community college. The contribution has a long history, back to 1789 when Georgetown University was founded by the Jesuits. Yet under the health care law, if these schools and colleges wish to remain faithful to their religious principles the government will fine them into submission. There’s a thank-you note.

Many Catholic hospitals were founded by religious orders of women, and today one out of six persons seeking hospital care in the United States goes to a Catholic hospital. Until now, religious background of the patient has not been an issue. “Where does it hurt?” is the first question, not “Where is your baptismal certificate?” This approach threatens to deny hospitals any real protection as “religious employers” under the new rule. Yet their Catholicity means many of these hospitals have an added benefit. At Providence Hospital in Washington, DC, for example, patients not only get medical care, they can get clothing too if they need it. It comes through the Ladies of Charity, an auxiliary of the Daughters of Charity who founded the hospital in 1861.

Catholic social service agencies, including adoption and foster care agencies, parish food banks, and soup kitchens, meet human concerns. Services depend on need, not creed. Church sponsorship means the services have a little extra, be they volunteers from parishes, financial donations through diocesan appeals, or the dedication that comes from working for God as well as paycheck.

A Catholic might take personally the Administration’s dissing their beliefs. Lucky the Amish, who have their basic constitutional rights respected. If only we objected to health insurance generally, we might be able to enjoy the same protection. Seems odd that the Administration is more inflexible on contraception than on services that actually treat disease.