Church v. State: The Historic Lawsuits Over the HHS Abortifacient/Contraceptive Mandate
October 23, 2012

On May 21, 2012, there began a confrontation between church and state unlike any in American history. Forty-three Catholic institutions filed twelve lawsuits in twelve federal courts seeking religious exemption from an HHS regulation. The regulation issued by the Obama administration to implement the Affordable Care Act required employers to provide their employees with medical insurance that included coverage for abortion-inducing drugs (known as "abortifacients"), contraceptives, and sterilization. Such coverage is contrary to Catholic Church teaching.

The plaintiffs in these lawsuits were diverse. 'They included the Archdioceses of New York, St. Louis, and Washington; the Dioceses of Biloxi, Dallas, Erie, Forth Worth, Fort Wayne-South Bend, Jackson, Joliet, Pittsburgh, Rockville Center, and Springfield; four Catholic colleges, including the University of Notre Dame and Catholic University of America; five Catholic schools and high schools; Catholic Charities in Chicago, District of Columbia, Jackson, Joliet, Springfield, and St. Louis; Catholic hospitals and clinics, the Michigan Catholic Conference; a Catholic nursing home; and Our Sunday Visitor. The plaintiffs and their counsel understood what was at stake. If the government could require them to give their employees abortifacient benefits, it could require them to give their employees surgical abortion benefits as well.

Some of the plaintiffs had been misled by President Obama himself. The University of Notre Dame, for example, opened itself to substantial criticism from the right when it invited President Obama to speak at its commencement exercises and awarded him an honorary doctorate in May 2009. While the University had invited numerous presidents before, dating back to Dwight Eisenhower, to speak at its graduation ceremonies, none had so aggressively supported abortion rights including the right to partial birth abortion. During his Notre Dame speech, the president promised that, notwithstanding his support of abortion rights, he would always respect the conscience rights of Catholics and those who believed otherwise. "Let's honor the conscience of those who disagree with abortion," he said, "and draft a sensible conscience clause." This, he said, is one thing "we can do." When the time came, this is one thing the president did not do.

Similarly, The Wall Street Journal reports that Archbishop Timothy Dolan of New York who is the President of the United States Conference of Catholic Bishops, had, in November 2011, met with President Obama in the Oval Office to discuss the abortifacient/contraceptive mandate. At the end of the meeting Archbishop Dolan turned to the president, "I've heard you say, first of all, that you have immense regard for the work of the Catholic Church in the United States in health care, education and charity .... I have heard you say that you are not going to let the administration do anything to impede that work and ... that you take the protection of the rights of conscience with the utmost seriousness .... Does that accurately sum up our conversation?" The president then said, "You bet it does." Archbishop Dolan publicly characterized his meeting with the president as productive and "extraordinarily friendly."

In his March 2012 WSJ interview, then Cardinal Dolan, explained what happened next: "So you can imagine the chagrin, when [the president] called me at the end of January to say that the mandates remain in place and that there would be no substantive change, and that the only thing that he could offer me was that we would have until August .... I said, 'Mr. President, I appreciate the call. Are you saying now that we have until August to introduce to you continual concerns that might trigger a substantive mitigation in these mandates?' He said, 'No, the mandates remain. We're more or less giving you this time to find out how you're going to be able to comply.'" Cardinal Dolan later said, "The president is saying we have a year to figure out how to violate our consciences."

The twelve lawsuits filed by Catholic institutions in May followed 11 lawsuits filed earlier, beginning in November 2011. These included three by Protestant colleges- Colorado Christian University, which is evangelical Protestant; Geneva College, which is Reformed Presbyterian; and Louisiana College, which is Baptist. These Protestant colleges, while agnostic about contraception, each opposed that portion of the HTJS mandate that required them to provide abortifacient benefits. Others previously filing included EWTN, the largest Catholic television network; Priests for Life; and Legatus, an association of Catholic business executives. The Nebraska Attorney General Jon Bruning, joined with the Attorneys General from Florida, Michigan, Ohio, Oklahoma, South Carolina, and Texas, filed suit on behalf of Catholic Mutual Relief Society and others.

Most of the early suits were represented by public interest law firms, including The Becket Fund, the Alliance Defense Fund, and the Thomas More Law Center. The Jones Day law firm, the third largest in the United States, represented the plaintiffs filing in May. The Rothgerber Johnson & Lyons Religious Institutions Group advised several of the plaintiffs and prospective plaintiffs about their participation in these suits and other ministries about strategies to ensure their own group medical policies complied with their ethical values.

While the plaintiffs invoked a number of First Amendment religious freedom and speech protections and federal statutes in support of ilieir request for exemption from the HHS mandate, the leading claim in most cases is based on the Religious Freedom Restoration Act (RFRA) of 1993. This federal statute, passed the House of Representatives unanimously and the United States Senate with 97 votes. President Clinton signed it into law. RFRA prevents the government from substantially burdening the religious freedom of any person or entity unless the government has a "compelling" interest in doing so and the government's interest is advanced through the means that is the "least restrictive" option. RFRA almost certainly requires exemption for the plaintiffs and for other similarly-situated entities and individuals. Here's why:
First, there can be little doubt that requiring employers to arrange for insurance that will directly or indirectly provide benefits that are morally objectionable to the employer will constitute a "substantial burden" on the religious exercise of such employers. The Obama administration effectively conceded this when it included in the original act a religious exemption for employers in the Anabaptist tradition (like the Amish and the Mennonites) and an exemption for Medi-Share, an evangelical Protestant "insurance" cooperative. The administration also likely conceded that the mandate burdens the free exercise of religion for some employers when it announced its own exceedingly cramped religious exemption for some churches. There would be no need for such religious exemptions absent the administration's recognition that its mandate substantially burdens the exercise of religion.

Second, under RFRA analysis, as articulated in Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal (U.S. 2006), the government's interest will be weighed in relation to its need to force the particular plaintiff religious persons and entities to comply with the mandate and not in relation to a national government objective of making abortifacients and contraceptives more generally available to women. The administration likely cannot show that its interest is compelling both because it statutorily exempts other religions as described in the previous paragraph, because it exempts employers with "grandfathered" plans, it exempts employers with fewer than 50 employees, and it has given 1,400 individual employers exemptions for economic hardships. All told, the exemptions the administration has given to others affects millions of employees. How, then, can the government show that its interest in denying exemptions to Catholic institutions and Protestant colleges is of the highest order?

Accordingly, it is quite likely that some time after the November election there will begin a series of decisions favorable to the various plaintiffs, including awards of attorney's fees against the government. One wonders why the administration picked this fight.

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