Vigorously defending freedom of religion • 6.8.12

On May 21, 43 Catholic institutions— dioceses, hospitals and health care chains, universities, elementary and high schools, Catholic Charities offices, peace centers, newspapers and cemetery associations — filed suit in 12 different federal jurisdictions against the U.S. Departments of Health and Human Services, Labor and the Treasury and their respective Secretaries over the HHS mandate forcing all employers, including most religious employers, to pay for, provide or facilitate abortion- causing pills, sterilizations and contraception. It is asking the federal courts to overturn the HHS mandate on the basis of its violating the First Amendment, the 1993 Religious Freedom Restoration Act, and the Administrative Procedure Act; as it awaits trial, it also asked the courts to grant an injunction prohibiting the U.S. government from enforcing the mandate.

In a February 22 letter to his brother bishops, New York Cardinal Timothy Dolan, president of the U.S. Bishops’ Conference, detailed the work the Church had tried to do with the administration and Congress to remedy the HHS mandate’s violation of religious freedom, but, despite the enormous efforts of the bishops and their staffs, they proved ineffectual. Cardinal Dolan confided in them, “Perhaps the courts offer the most light,” and told them why: “In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House,” which nine days later published the final rule of the HHS mandate. “Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days,” he said, “you will hear much more about this encouraging and welcome development.”

It took three months, but that’s what we heard about on May 21 with this vast array of lawsuits filed across the country by Jones Day, one of the nation’s largest and most prestigious law firms. Cardinal Dolan summarized, “We have tried negotiation with the administration and legislation with the Congress — and we’ll keep at it — but there’s still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.” Since the mandate — unchanged — became law on February 15 when the Obama Administration entered it into the Federal Register and since it goes into effect on August 1 of this year, Church institutions couldn’t risk waiting around to see whether the Supreme Court will vacate the Affordable Care Act as a whole later this month on the basis of the alleged unconstitutionality of the individual mandate. Hence, in case the act is upheld, the parties sued for an injunction against and overturning of the attacks on religious freedom. The wide variety of parties to the suit all across the country, Cardinal Dolan said, is a “compelling display of the unity of the Church in defense of religious liberty. It’s also a great show of the diversity of the Church’s ministries that serve the common good and that are jeopardized by the mandate — ministries to the poor, the sick, and the uneducated, to people of any faith or no faith at all.”

Of the 43 parties to the suit, the one that has gained the most attention is the University of Notre Dame. Three years ago, Notre Dame controversially invited President Obama to give its commencement address and receive an honorary degree. The president, within the context of speaking about health care reforms, declared, “Let’s honor the conscience of those who disagree … and draft a sensible conscience clause, and make sure that all of our health care policies are grounded not only in sound science, but also in clear ethics.” That Notre Dame would now be suing precisely because the president did not honor these commitments is noteworthy, to say the least. In a statement announcing its participation in the lawsuit, the president of Notre Dame, Father John Jenkins, described what it was all about and why every Catholic institution — including those, like Notre Dame, that sympathize with President Obama on a wide range of public policy items — needs to be concerned about what the HHS mandate actually means.

The HHS mandate, President Jenkins said, “requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching. The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties. Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the government from providing such services. If the government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents. We do not seek to impose our religious beliefs on others; we simply ask that the government not impose its values on the university when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so. 

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one presidential administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.”

The statement from the Diocese of Pittsburgh, its Catholic Charities and Catholic Cemeteries about their joint lawsuit was the feistiest of all. After mentioning that the breadth of the lawsuits against federal agencies have “no doubt raised some eyebrows,” it went on to say, “Under the new HHS mandate, our Church-sponsored organizations — everything from hospitals for the sick to soup kitchens that feed the hungry — are required to let the federal government be the final arbiter in determining which of our beliefs we can follow and not follow as we carry out our ministries of service to the community.” Turning to President Obama’s February 10 announcement of an “accommodation,” it replied, “No accommodation exists. The mandate was made final February 15. It is the law and will go into effect for some institutions this August, for others next August. The mandate remains in place exactly as first written, as the president proudly stated in his commencement address at Barnard College May 14. 

The fact is that talk of accommodation is smoke and mirrors. The mandate holds as originally written. Nothing has changed to expand in any way the very narrow so-called religious exemption. Nothing has changed in the federal government forcing faith-based institutions to provide access to services our Church considers morally and religiously objectionable. Nothing has changed in the federal government forcing virtually every Catholic social service agency, university or hospital in the United States to violate their religious beliefs.” They concluded, “The filing of these lawsuits has nothing to do with politics. We did not pick this fight or this timing. The federal government chose to impose this on us now. In fact, this lawsuit takes the issue out of politics and places it in front of the courts, which exist to protect our constitutional principles and freedoms. The issue is simple. Can the federal government ignore religious freedom guaranteed in the Constitution and force the Church to do what it considers morally and religiously objectionable?  We will not give to the federal government the power to make us choose between our sacred beliefs or shutting our doors because we cannot violate our conscience. That is why we have filed this lawsuit.”

All Catholics should be grateful for the staunch leadership of the bishops and Catholics institutions across the country in defending our constitutional freedoms and core religious beliefs. As we get ready for the Fortnight for Freedom, beginning June 21, all Catholics should pray not only for the lawsuits’ successful outcome but for a renewed respect for religious freedom and freedom of conscience among all citizens and especially among those who serve us in public office.

© 2013 The Anchor and Anchor Publishing, Fall River, MassACHUSETTS