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A Mandate Update Print E-mail
By William Saunders   
Thursday, 21 February 2013

On February 1, the Obama Administration issued a proposed final rule concerning the “accommodation” to be given to those who have religious objections to the HHS mandate, which requires that providers of insurance cover certain objectionable “services.” 

I know.  To a few readers who follow this issue carefully, the previous sentence may be entirely clear. To most others, it is probably as impenetrable as hieroglyphics or Sanskrit.  Just last week, Archbishop William L. Lori, Chairman of the U.S. Conference of Catholic Bishops’ ad hoc Committee on Religious Liberty asked Congress to cut through the complexities and defend our freedom.  So let me unpack the “accommodation” a bit.

Back in August 2011, the Department of Health & Human Services (HHS) adopted an “interim” regulation requiring that all insurance plans provide certain “preventive services” for women.  Those services included contraception, sterilization, and some life-ending drugs and devices. 

Many Americans protested against this, asserting that it violated their religious freedom and conscience rights.  The administration responded in January of 2012 that religious organizations would have a “safe harbor” of one year before they would have to comply.  (Because the regulations applied to insurance plans whose “year” begins after August 1, 2011, the safe harbor lasted until August 1, 2012.)   Obama’s solution satisfied no one – in the words of Cardinal Timothy Dolan, “In effect, the President is saying we have a year to figure out how to violate our consciences.”

Protests intensified.  Last year, the president and HHS Secretary Kathleen Sebelius announced that “religious organizations and institutions” would not have to provide insurance for the objectionable services; rather the insurance company would be required to provide it, for free. 

This obvious flummery also failed to satisfy the critics, who denounced it in a widely signed statement, “Unacceptable,” and went to court to stop it. 

To date more than forty lawsuits have been filed.  Some have been dismissed, and some haven’t. The latter concern “for profit” plaintiffs, i.e., the ordinary Americans who run businesses for a profit but seek to do so in conformity with their faith.  In other words, these are the people in the pews.  The Obama Administration has never proposed to protect them.

Many cases by religious organizations (such as colleges and universities and dioceses) have been dismissed because courts have concluded they have not sustained an injury. Even where injury has already occurred, it is not “ripe” for judicial decision because the Obama administration has given a “safe harbor” to the religious non-profits and has promised never to enforce the regulation against them. In fact, the federal government made the promise “never to enforce” in a hearing before the Court of Appeals of the District of Columbia.

That is where matters stood on January 31. On February 1, 2013, Obama fulfilled his promise – sort of. These are now “proposed” regulations, necessitating a sixty-day comment period. 

What did the regulations say and what will their effect be on the lawsuits? The effect will be up to the courts. Will they permit the non-profit cases to go forward, or will they still say they are “not ripe” (and dismiss them) until the regulations become final (anytime before August 1)?  No one knows.  Plaintiffs who are unsatisfied by the proposed accommodation will seek to continue their suits, but courts will decide if they can do so.     

One thing is for certain – the regulations will have no effect on the suits by for-profit plaintiffs (the people in the pews).  No new accommodation is offered to them.  So their lawsuits will continue.  Will they win? 

Well, here there is good news, even if preliminary.  In most cases, the for-profit plaintiffs have won, that is, they have been granted an injunction against the enforcement of the mandate against them.  But such plaintiffs have lost a few cases as well. 

The standard under which all these cases are judged is the Religious Freedom Restoration Act.  Essentially it says that if you sustain a substantial injury to your religious freedom from federal action, the government has the burden of showing it had “a compelling reason” to do what it did. It must also demonstrate that the way it acted was the  “least restrictive” of your rights.  This is “strict scrutiny,” and is the toughest legal standard for the government to satisfy.  Thus, no surprise that most for-profit plaintiffs are winning.

But why are some losing?  The reason is that a few courts have, in essence, found no burden.  These courts argue that the plaintiffs are complaining about future acts by other people (i.e., their employees using contraceptives, abortifacients, or sterilizations). Therefore, because those things may never happen, there is no burden. 

This seems clearly wrong. After all, the concern is that an employer is being forced to provide objectionable services, not that someone else will decide to use them.  Still, it will ultimately take, I believe, the Supreme Court to resolve the matter. 

And on this point, the losses paradoxically offer a silver lining – they create a “split” among different federal courts, which increases the likelihood the Supreme Court will review the cases and decide the issue.

In the meantime, lawyers for various parties puzzle over the proposed regulations.  Despite being in process for a year (since Obama’s promise in February 2011), they still are unclear on many points.  But they are unyielding on one point – only churches and religious orders are “exempted.” Some nonprofits may be “accommodated.” 

Deciding who is exempt because of their religious beliefs, who is to be “accommodated,” and who receives no protection whatever (the people in the pews), sounds much like the position Obama took in a recent Supreme Court case: it is up to his administration to strike the balance on religious freedom.  As the Court reminded him there, however, and as it will ultimately do here, that balance has already been struck – by the First Amendment! 

Religious freedom is the right of every American.  The mandate has to go.

 
William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues. 

 
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own

 

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Comments (10)Add Comment
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written by Manfred, February 21, 2013
Thank you, Mr. Saunders. If any reader wants a shot in the arm on this subject, he/she should go to youtube.com and search: Trey Gowdy v. Sebelius and see their exchange from last spring, 2012. It will be the best five minutes you will enjoy in quite a while. You will have no trouble believing that Sebelius is the former Democratic governor of Kansas.
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written by diaperman, February 21, 2013
It seems to me we could make this whole issue go away just by realizing that the underlying problem is that America's peculiar method of financing health care through employers. If we had little or no employer based health care, this issue would be moot.

If everyone shopped for their own insurance (as Obamacare envisions will happen over time) and people were much freer to determine the level of coverage they wanted (as the GOP will probably move to do once the reality sets in that the law will not be repealed), then the whole issue goes away--and everyone is happy.

What's not to like?
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written by Brad Miner, February 21, 2013
Well, Diaper Man, you've set a new standard for glibness. Faithful Catholics aren't engaged here in a debate about a free versus a mixed versus a command economy in healthcare, but are expressing outrage at the immoral imposition by government of mandates that restrict religious liberty. Not to mention that these policies are also aimed at killing human beings.
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written by Chris in Maryland, February 21, 2013
Diaperman:

You don't seem to understand what's really going on here. Believing that "people will be free to shop for their own insurance" is meaningless, since the intention is there will only be one type of insurance...the type HHS decides you can shop for.

You seem to believe that the same government that, with its left hand, is willfully trying to violate the liberty of pro-life Americans under The First Amendment, will, with its right hand, make you freer to make your health care decisions.

That proposition does not intersect with credibility.
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written by diaperman, February 21, 2013
@ Brad

Right...but I really wonder what all the "expressing outrage" is actually getting us. Even if the Church gets the broad exemption she wants there will still be private Catholic employers who will be unhappy. And even if they got an exemption, there will still be Catholic employees who will be unhappy, claiming that they are forced to subsidize others' contraceptive purchases through group health plans.

We're never going to please everyone. This is the sort of clash that inevitably happens when governmental interests clash with private people and institutions.

For my part, I'm a little tired of the outrage and am ready for the issue to go away quietly as I expect that it will, one way or another.

I don't think that TCT readers are going to get the drama of a high profile civil disobedience campaign by the USCCB that they seem to hope will happen.

@ Chris

you miss the point wholly. Changes in what standard issue insurance policies require are the sort of things conservatives could have had for the asking had they resigned themselves to the fact that some form of health care reform was going to pass and attempted to shape it in a more sensible direction--rather than gambling everything on its failure. And even today such changes in this are quite foreseeable in the future. Obama will not always control HHS and moreover the ACA allows states who do the exchanges (the majority of which are controlled by Republicans) significant latitude to shape insurance policies.

Another possible step here would be to do what Jindal proposed and just allowing birth control to be sold OTC--and doing this would also make the issue largely moot. This again would make alot of sense from the standpoint of coming up with a solution that most people could live with. In this case moving as much as possible to the private sphere might be the best way to deal with this and other future clashes of value systems.
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written by Layman Tom, February 21, 2013
Ok, First, Manfred; thank you for that suggestion. That was AWESOME and well-timed. You were totally right. It cheered me up considerably.

Thank you also Mr. Saunders. This is a very informative piece. As a Catholic and an American, I have been incensed about this whole sorry affair. I have watched this unfold and believe the church will ultimately prevail, but have been worried by the other smaller organizations and private citizens who have the same rights, but far less resources with which to mount this battle. In that way, I am actually glad that there has been no acceptable compromise to date. Otherwise, without the larger battle looming with the Church, those others would be quite a bit more exposed. Fellow Oklahoman David Green (founder and owner of Hobby Lobby stores) is one such person. It’s gratifying to learn that his day in court as well as others with the salt to fight will not be sidetracked. Green is a protestant; no doubt many others are as well. Perhaps this will be just the thing to get ecumenism fired up. We have a common enemy who is attacking all of us through this administration. The doctrinal differences seem trifling compared to the battle between good and evil.

I have several other questions though.

First, Assuming that the USCCB is serious about not complying, what does that look like? I assume the institutions in question will not close their doors, so what happens when they drop coverage for their employees? How long can the church withstand the immense fines and inevitable law suits?

Second, I feel quite a bit of contentious feelings for my fellow Catholics who voted to keep the president in office, essentially giving him the “vote of confidence” after he blatantly attacked our faith and rights. I feel even more uneasy about the USCCB who played a pivotal role in the healthcare law being enacted. My question is: have the bishops learned their lessons? i.e. should they and the administration strike an accord, will they go back to blind faith in the president, or, having been bitten, will they go forth with the understanding that one cannot deal in good faith with socialists. Will they understand that the president and his minions are diametrically opposed to the things we as Catholics believe in and would like to relegate morality and Christianity to the shadows and fringes of society? Do they understand that this is but the opening salvo in the coming battle over our culture and what will rule it, morality, the constitution and founding principles or postmodern thought and secular humanism? I would like to say I have faith that they will be smart, but I suppose I am weak in that regard.

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written by Chris in Maryland, February 21, 2013
Diaperman:

Disagreeing with your point isn't evidence that I'm missing your point. Your confidence in "detente" with Obamacare, indeed any "government healthcare," is choosing to play checkers, while the other guys are playing chess.
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written by Achilles, February 21, 2013
Yes, Diaperman gets it and Chris in Maryland doesn't. Hmmmm, that would be funny if diaperman were not serious.
There is far too great of a communication gap between a nihilist and a Platonist. The nihilist doesn't understand the Platonist, and the Platonist is a Platonist because he understands, all to well, the nihilist.
Daiperman, you are definitely barking up the wrong tree.
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written by Chris in Maryland, February 21, 2013
Layman Tom:

I believe that most of the Bishops don't get it...they are so thickly integrated into the web of Big Brother, that they can't imagine cutting the cords and reforming. They spend their energies on healthcare, where they are incompetent, and neglect caring for the Church.

This does not include men like Chaput, Burke, etc. But these are the exceptions, not the rule.

The USCCB is largely staffed by people who vote for abortion, tax-payer funded contraceptives, the HHS mandate, state definitions of "marriage," and other things that "the Kennedy girls" tell them to do.
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written by diaperman, February 21, 2013
@Chris

We might get the mandate overturned in SCOTUS. I hope we do. But we have no choice but to accept "detente" with the broader health law because it is here to stay.

Which is not the worst thing in the world because the law in its essence, was basically the proposal of the Heritage foundation back when Clinton was president and Billarycare was on the horizon.

And what of "government health care?" Health care has been either financed by the state directly or by heavily regulated private risk pools for a very, very long time--in the US and in every other country in the world. It's a fact of life of modernity. Even a Platonist like Achilles can grasp that empiric fact.

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