Legal scholars say HHS mandate fails test of ‘compelling interest’ in placing substantial burden on religious entities.The mass media have done the public a disservice by consistently referring to health reform law regulations so narrowly as the "contraceptive mandate," because it leads people to think the regulations are a matter of interest only to Catholics, according to Harvard Law professor Mary Ann Glendon.
Rather, she said, the regulations that would require employers to provide free health insurance coverage for contraceptives, abortion-inducing drugs and sterilizations are a contravention of religious freedom, "and that's everybody's business."
Legal experts interviewed by Catholic News Service said the lawsuits filed May 21 by 43 Catholic entities in 12 federal district courts, as well as those filed separately by other organizations and concerned individual employers, are based on three principles.
The first is the free exercise clause of the First Amendment to the U.S. Constitution.
Helen Alvare, a law professor at George Mason University in the Washington suburb of Arlington, Va., said the Supreme Court has ruled that statutes may breach religious freedom if a law is neutral with regard to religion and of general applicability, that is, applied across the board without exemptions.
But, she said, the Department of Health and Human Services regulations to implement the Patient Protection and Affordable Care Act contain numerous exemptions affecting thousands of people --- unions, for example, and grandfathered programs --- and so cannot be considered generally applied.
A second reason cited for the lawsuits is the 1993 federal Religious Freedom Restoration Act. The law says that if the government is going to place a substantial burden on religious practice, the government must have a compelling interest to do so and must use the least restrictive means available.
The HHS regulations do not meet that test, the scholars agreed.
Finally, enforcing the regulations' narrow definition of religiously exempt entities would, Glendon said, require a searching government inquiry into what is and isn't religious activity, "intruding into religious affairs in an unprecedented way."
To be exempt, the religious employer must meet four criteria, that it "has the inculcation of religious values as its purpose"; primarily employs people "who share its religious tenets"; primarily serves people "who share its religious tenets"; and is a nonprofit organization under specific sections of the Internal Revenue Code.
Alvare said she thinks the case being made in the lawsuits is really strong but expects that however district courts rule the matter is likely to be appealed to higher courts, unless the Supreme Court rules the whole health Affordable Care Act unconstitutional in a case currently under consideration.
Ned Dolejsi, executive director of the California Catholic Conference, said no California diocese was among those bringing the current batch of lawsuits, but he said that was not a decision the bishops made together nor does it indicate that they disagree with the dioceses bringing suit.
Rather, he noted that the bishops of California went through a similar process in challenging California state law, but the U.S. Supreme Court ultimately declined to hear their appeal.
The California statute, like the proposed HHS regulations has a very narrow religious exemption, for any employer offering insurance for pharmaceuticals. But he said the Catholic dioceses have been protected from it by federal and state laws that allow them to self-insure in a variety of ways.
However, that protection would be lost if the federal law goes into effect with its current regulations.
"We (in California) share the angst (of other U.S. Catholics) over allowing this definition of religious employer to remain" in force, he said, but different bishops are using different strategies.
Richard Garnett, professor of law and associate dean at the University of Notre Dame Law School, said that with respect to the district court suits filed by various Catholic entities, it is entirely possible that there will be different decisions in different jurisdictions.
He said that at least some of the plaintiffs will probably be successful, and in those cases the court may issue an injunction on enforcement of the HHS regulations within the area of the court's jurisdiction.
Garnett also said the Obama administration may just decide to change the regulations.
The Catholic Health Association, which has not joined in any of the lawsuits, told CNS its only statement on the lawsuits could be found in a May 21 blog post by E.J. Dionne of The Washington Post. In it, Michael Rodgers, CHA senior vice president for public affairs and advocacy, was quoted as saying in an interview that the association "was not made aware that lawsuits were being filed now."
Rodgers is quoted as adding that CHA is working with the administration to "broaden the exemption by broadening the definition of what a religious institution is."
Julie Billmeier, who serves in young adult ministry in the Diocese of Dallas --- which is among the groups suing the government over the regulations --- said the definition in the regulations "would completely change our Catholic approach to what it means to serve others."
She sees accessible health care for all as an important social justice issue, but says, "It can't happen at the expense of us being able to live out what we believe."
Also in Dallas Kate Dailey, principal of Bishop Dunne Catholic School, said hers is a very diverse school where some 50 percent of students require financial aid. She sees her ministry at the school, which serves grades 6-12, as "who we are, the heart and soul of who we are" as the Catholic Church, and is appalled that the HHS regulations would not consider it a religiously exempt institution.
But she is optimistic the suits will be successful or the regulations changed, saying, "I don't think it (contraceptive requirement) will happen."
---CNS
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