Major Catholic Organizations File Suit Over Contraceptive Coverage Mandate
The Catholic Church has fired a legal shot across the bow of the Affordable Care Act.
A group including some of the largest Catholic Diocese, Universities, and organizations in the country has filed a series of lawsuits contesting the Constitutionality of the Administration’s mandate that employer-provided health insurance include coverage for contraceptives:
In an effort to show a unified front in their campaign against the birth control mandate, 43 Roman Catholic dioceses, schools, social service agencies and other institutions filed lawsuits in 12 federal courts on Monday, challenging the Obama administration’s rule that their employees receive coverage for contraception in their health insurance policies.
The nation’s Catholic bishops, unable to reverse the ruling by prevailing on the White House or Congress, have now turned to the courts, as they warned they would. The bishops say the requirement is an unprecedented attack on religious liberty because it compels Catholic employers to provide access to services that are contrary to their religious beliefs. The mandate is part of the Obama administration’s overhaul of the health care system, which the bishops say they otherwise support.
Cardinal Timothy M. Dolan, whose archdiocese in New York is among the plaintiffs, said in a statement, “We have tried negotiations with the administration and legislation with the Congress — and we’ll keep at it — but there’s still no fix.”
The bishops rejected a compromise offered by President Obama in February that would have insurance companies — not the Catholic employers — pay for and administer the coverage for birth control. When some Catholic organizations broke with the bishops and greeted the accommodation positively, the bishops resolved that Catholic institutions must present a united front.
Among those filing suit are the Archdioceses of New York, Washington and St. Louis; the Dioceses of Dallas, Fort Worth, Pittsburgh, Rockville Centre on Long Island and Springfield, Ill.; the University of Notre Dame and the Catholic University of America; and Our Sunday Visitor, a Catholic publication. All the plaintiffs are being represented pro bono by the law firm Jones Day.
The defendants are the Treasury, Labor and Health and Human Services Departments.
The lawsuits are based for the most part on the First Amendment and the Religious Freedom Restoration Act, a 1993 law passed by a Democratic Congress and signed by a Democratic President largely in response to the Supreme Court’s decision in Employment Division v. Smith in which the Court had decided that two Native Americans could be denied unemployment compensation after being fired for drug use, even though the drug in question was peyote and that it had been used in a Native American religious ceremony. Because of its far-reaching implications, the decision ended up uniting groups that were normally on opposite sides of the church-state divide, and support for the RFRA was largely bipartisan. Each lawsuit essentially argues that the mandate improperly gives to the Federal Government the authority to determine which kind of institution is sufficiently religious in order to qualify for an exemption to the mandate, which in and of itself violates the religious liberties of the organizations as provided by both the Constitution and the RFRA.
When this mandate first became an issue in February, I was skeptical of some of the legal arguments being advanced by opponents and by the Catholic Church and its allies, but at it has become evidence that there’s a great deal of merit in the argument being made here. It is similar, for example, to the argument used to strike down an Oregon law requiring pharmacists to dispense the so-called “morning after” pill. In fact, one might argue that the Church’s claims are actually stronger because, in addition to the Free Exercise claim that was advanced in that case, they are also able to take advantage of the RFRA (the Supreme Court has previously ruled that the RFRA does not apply to the states). Indeed, many legal scholars now see the contraceptive mandate as being especially vulnerable to claims under the RFRA:
Legal scholars see the merit in challenging the mandate with RFRA, which then-Rep. Charles Schumer (D-N.Y.) and the late Sen. Edward Kennedy (D-Mass.) introduced in 1993 to protect religious exercise from laws that might unintentionally restrict it.
[I]t will force the government to prove that federal regulators did not have another way to expand women’s access to birth control that would be less burdensome on religion — an argument experts say conservatives can win.
“I think the odds are pretty good for the plaintiffs here,” Marc DeGirolami, an assistant law professor at St. John’s University, told The Hill.
Because of the law, courts now have to apply certain standards to federal actions that might inadvertently infringe on religious liberty. In one sense, laws under scrutiny must aim to achieve a “compelling” government interest. In another sense, they must be designed in a way that burdens religion as little as possible.
The second claim might be hard for the administration to meet when regulators could have taken many other steps — like expanding Medicaid — to provide better access to birth control, DeGirolami said.
“Even if one concedes that the state has a ‘compelling interest’ in ensuring that all women have free access to contraception,” he said, “there are many, many less restrictive means of achieving that interest.”
In the end, of course, these lawsuits could end up being moot. If the Supreme Court decides at the end of this term that the individual mandate in the Affordable Care Act is unconstitutional and that the entire law must be thrown out, then that also throws out the employer mandate under which HHS purports to issue the regulation at issue here. In fact, it’s likely we’ll get a decision from SCOTUS on that issue before any of the Federal Courts that now have these cases in front of them will be able to rule on the merits of the case. If they do go forward, though, it appears to me that the Church as a strong argument here and that the mandate, as applied to them, could very well be vulnerable.
Here’s one of the complaints filed yesterday (in this case the Notre Dame Complaint):