Latest Challenge to HHS Mandate Rejected by Federal Court: A Sign of What’s to Come?

The recent decision by a federal court in Missouri to reject one of the lawsuits challenging the Department of Health and Human Services (HHS) “Obamacare” mandate, requires near universal carrying of insurance plans that cover, gratis, contraception, sterilization, and abortion-inducing drugs raises troubling questions about how the courts generally are going to rule on the numerous other lawsuits currently filed against this misbegotten HHS mandate. Catholics and other opponents of the mandate believe it to be a grave violation of religious liberty, both under the First Amendment and under the Religious Freedom Restoration Act, but this recent Missouri decision judges it to be no violation at all on either count.

A for-profit, non-religious company, O’Brien’s Industries Holdings (OIH), had sued claiming that complying with the mandate would violate owner Frank O’Brien’s ability to operate the company in accordance with his religious convictions and practice; not complying would subject his company to ruinous fines that would have a crippling effect on the company’s ability to survive economically.

Federal Judge Carol E. Jackson, however, rejected this lawsuit in its entirety, ruling that the company did not qualify for the (very narrow) exemption for some religious employers and holding that the mandate does not constitute the “substantial burden” on anyone’s religious freedom that the Religious Freedom Restoration Act specifies.

With regard to the question of whether the mandate violates the First Amendment’s guarantee of the free exercise of religion, Judge Jackson averred that the HHS regulation is an entirely “neutral” instance of insuring women’s access to “healthcare,” and the First Amendment, in her view, does not exempt anybody from complying with neutral laws of general applicability. (Actually, in issuing the mandate, HHS simply defined by regulation, without any underlying legislative authority to do so, that the objectionable birth prevention procedures–contraception, sterilization, and abortifacients–somehow constitute “healthcare”).

It is worth quoting from Judge Jackson’s decision, since her words are indicative of how many secular-minded people view what Catholics and their allies, who have filed lawsuits against the mandate, tend to view as a plain, open-and-shut instance of a violation of religious liberty. Secularists evidently see it quite differently. Judge Jackson wrote:

The challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing to his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by healthcare providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by the plaintiff’s religion. This court rejects the proposition that requiring indirect support of a practice, from which plaintiff himself abstains, according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.

Much could be said about this line of reasoning. Judge Jackson’s extremely narrow view of what religious belief and practice consist of, for example—keeping the Sabbath, bringing up children in the faith, participating in religious worship—apparently does not take very seriously the moral convictions and rules enjoined on Catholic religious believers; what she characterizes as neutral “healthcare” is, for serious Catholics, morally and gravely wrong and forbidden; they cannot, with any conscience that is informed, comply with the requirement that they actively provide their employees with the means to use these immoral procedures. Her viewpoint, though, is exactly what the mandate itself assumes about the birth prevention procedures in question, namely, that they are morally neutral, indeed beneficent.

The Obama Administration seems to have assumed this all along; most of its statements about the mandate betray an apparent inability even to imagine that anyone could really be opposed to birth control on moral grounds. While appearing to accord respect to the religious beliefs of the “plaintiff,” Judge Jackson, for her part, nevertheless seems to share this incomprehension in her insistence on the moral neutrality of the mandate.

Also, Judge Jackson describes the direct insurance payments that Catholics are now obliged to make on plans that mandatorily provide immoral birth prevention procedures as “indirect support of a practice from which the plaintiff himself abstains” (emphasis added). This is not the case. The payments for the insurance are direct, and they are also obligatory. Judge Jackson is simply mistaken about this. Contrary to what her opinion states, the plaintiffs do have to “alter their behavior” in a manner that goes against their consciences. For Catholics are now strictly required by law to make direct payments for insurance policies that obligatorily provide for procedures that are contrary to Catholic teaching. Catholics are now required, in other words, to subsidize what their Church teaches is immoral by the positive act of making payments. There is nothing “indirect” about any of this.

And this is exactly what sincere religious believers cannot morally do, namely, act in a positive manner to bring about something they know to be morally wrong. This is, in fact, in essence precisely what Catholics understand as sin. While Judge Jackson, perhaps, cannot be expected to know this, the fact of the matter is that she simply passes over it as if it were not there. In her judgment, the mandatory payments have no more than what she calls “a de minimis impact on the plaintiff’s religious beliefs.” Knowledgeable Catholics, however, understand that the obligatory subsidies fund immoral, and in the case of the abortion-inducing so-called “contraceptives,” lethal practices, however acceptable they have come to be in our society.

While it may not seem from what has been quoted here that Judge Jackson has made a very strong case, the fact is, amazingly, that the New York Times actually considers it to be decisive for the whole current religious liberty controversy in the United States. Is the HHS contraception mandate a violation of religious liberty, or not? In issuing it, the Obama Administration obviously did not believe that it is, and now Judge Jackson comes along and confirms that viewpoint in her decision rejecting the O’Brien lawsuit.

Then, on October 3, 2012, the New York Times published an editorial praising the Jackson decision and opining that the entire position of the opponents of the mandate has now been shown to be “without foundation.” The editorial primly dismisses “the leaders of the Roman Catholic Church, prominent Republicans, and other social conservatives,” who, the editorial charges, “have spent the last year making inflammatory allegations that the Obama Administration rule requiring employee health plans to cover birth control without co-pay tramples on religious freedom.”

Yes, you read that right: it is the opponents of the HHS mandate who are the real violators of religious freedom! According to the Times, the whole thing is nothing else but what has been trumped up by “Catholic leaders,” “prominent Republicans,” and “other social conservatives.” For the first time in American history, the federal government is demanding that a major religious body—America’s largest single religious community, in fact—should lay aside its long-established and well-known moral teachings and accede to a government requirement to provide direct support for birth prevention procedures that it teaches are immoral.

There has never been anything even remotely like this in American history. The same government which in the past readily upheld the right of Seventh-Day Adventists to maintain their Sabbath, and which even allowed conscientious objectors to refuse military service that was otherwise obligatory, is no longer going to allow any such leniency for those opposed to mandatory, publicly-funded birth control! This is determined not to be an undue “burden” for those opposed to birth control. The Times considers Judge Jackson’s decision to be a “victory” for “women and religious freedom,” and believes that “the many other courts hearing such lawsuits by companies, individual and groups with religious affiliations should follow her approach.”

Currently there are around 30 lawsuits involving some 80 plaintiffs challenging the HHS mandate. It is certainly devoutly to be hoped that the courts judging these cases will not follow the Jackson approach; but given the mentality that obtains not only in her court but in the editorial offices of the New York Times—as well as in American society at large—it is to be feared that some, and perhaps even many, of these courts just might “follow her approach,” and rule against what otherwise appears to be the clear violation of religious liberty inherent in the HHS Obamacare birth-prevention mandate.

Kenneth D. Whitehead


Kenneth D. Whitehead is a former career diplomat who served in Rome and the Middle East and as the chief of the Arabic Service of the Voice of America. For eight years he served as executive vice president of Catholics United for the Faith. He also served as a United States Assistant Secretary of Education during the Reagan Administration. He is the author of The Renewed Church: The Second Vatican Council’s Enduring Teaching about the Church (Sapientia Press, 2009) and, most recently, Affirming Religious Freedom: How Vatican Council II Developed the Church’s Teaching to Meet Today’s Needs (St. Paul’s, 2010).

  • I suggest the book A Matter of Conscience, published by Justin Press, a Catholic publisher in Ottawa Canada will help the defence against this mandate. It contains four excellent articles on conscience. The third article in the book by Dr François Pouliot, medical doctor and Roman Catholic priest, chair of the Research Ethics Committee at the Centre hospitalier affilié universitaire de Québec, explains material culpability. How as Catholic Christians, we are formally culpable when we act directly and sin mortally, and materially culpable when we act indirectly when we assist someone else. The article clearly explains how, if a physician were to follow the mandate of the Canadian Medical Association and refers his two patients, the mother and the unborn child, to a “physician” who would perform an abortion because he “personally” refuses to participate directly in good conscience, he has still participated indirectly and is therefore materially culpable.

    • Which is exact logic for why the church should not support public universal healthcare. It robs the church of moral control over their healthcare delivery systems, via their non profit identites. It would be far more beneficial for them to operate independantly of the Federal sphere, financially. In entering into a social-financial contract with the Federal govt, the church must operate by Federal ( the ever dance between church and ” state”) rules, reqs and guidelines, which are geared to a broader non Catholic base..the general population. The state will not bend its position on the issue of female reproductive medicine until the state becomes either Catholic or sympathetic to Catholic doctrine, which, in its view, would alienate other faiths, non faiths, which comprise the rest of the American citizanship. The only action for the church or people of faith, in this position, would be to divorce its relationship with the state, and pursue legal argument for the inclusion of abortion in the state definition of murder. If accomplished, that line item tenant would be dropped as a newly defined crime. Until that time, the church simply cannot continue this we support it/we dont support it flip flop over universal healthcare. This is not a flawed line of logic..its currently the law of the land, and by trusting everything would just work out right, by accepting universal care for the tax payers expense..while preaching taxes for the same mandate, due to this line item benefit, was a violation of our religious freedom IS flawed logic.

      • Catholicus

        One consideration that has never surfaced in the debate about the HHS mandate is this: in no European country I know does the public health insurance include either abortion or contraception. Both are obviously legal, but as private choices of the insured that are not related to health they must be paid directly by these individuals. It is inconceivable to me why the insurance industry, which has one of the most powerful lobbies in Washington, is not up in arms against a direct imposition of costs by executive mandate. Of course, they will pass these extra costs on to the insured or their employers, and this is the likely answer. Maybe the Catholic argument will be strengthened by referring not only to a violation of religious freedom but also to an imposition of a “tax”, as the Supreme Court sees possible penalties, that would have to be passed through the normal constitutional process. An increase of insurance premiums by HHS decree, which is the actual impact of the rule, would have to be passed by Congress. Alternatively, on the European model, leave it to individuals to pay directly for their sinful actions. But don’t we all tend to think we have “better” solutions than the Europeans?

  • Joe Kelly

    Thanks for a great piece. The chill ran to my bone when I read it.

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  • publiusnj

    Catholic leaders need to stop primly standing in the middle of the road and saying “on the one hand Democrats are closer to our position on immigration (or social justice) while the Republicans are closer to our position on life issues, so making an informed choice keeping those things in mind.” In truth, the Obamacare mandate is an existential threat to the Church’s involvement in almost any aspect of the culture outside the sanctuary while the Republican position on immigration is not. Another example: the current administration had no problem bailing out on an enacted Law re Gay Marriage and forcing the Congress to step into the role of the Executive to defend the matter before the Supreme Court. Simply put: this Administration is at war with traditional Christian values and will make things even worse if given another four years to work its mischief. While the immigration issue will be resolved in time, time is running out on undoing the locomotive that is the Mandate and the AAdministration’s Secularist Agenda. The Church ought to say that clearly.

    • Its a policy that needs to be reversed. In Europe, the Catholic Church is given funding from the public tax dollar, which is why we are reading about the Catholics wishing to be unbaptized so as to break the church and state financial collusion. Here in America, the church was silent after the Roberts ruling..because HHS was upheld..due to its ” free universal healthcare” which goes along with Catholic Social Doctrine. Except, here, as in Europe, its not free, its tax payer funded, and two, it does provide for female reproductive care. The church has put itself into a bad position on both counts.. The believing Catholic , per the churchs current push, is to reject paying taxes for public funding of such services, as immoral and unethical..while at the same time sitting quietly as the ruling came down providing for free universal healthcare. You cant have it both ways. I agree with you entirely. You dont push for civil disobediance in a line item fashion while at the same time applaud its generall benefit. The church will continue to fight a slippery slope battle with each new ” benefit ” thats added to this mandate, or is included, and as yet, not even identified, thus forcing the rank and file Catholic into the corner of having to choose between its “faith” responsibilty, and the reality of the entire universal healthcare program.

      • Great analysis of the Church wanting government help for the “poor” and now decrying the HHS mandate. It is unbelievable to me that anyone of moral and Catholic belief would vote for any Democrat candidate especially with a Party platform that only Satan could create. Catholics need to wake up and stop supporting the Democrat Party and government as a “charity” for social justice!

  • John Francis Borra

    The Obama administration’s concepts of morality, liberty and religion are the tainted fruit of two generations’ slide from truth to relativism. The momentum of our culture appears destined– no matter who takes the White House and Congress in November– to end America as it was originally conceived, that is, a bastion of freedom that follows from the natural moral law. The ingrained notion that birth control is an element of health care is a perfect example of this; the notion that euthanasia is health care is next to be ingrained (indeed, it is written, albeit subtly, into Obamacare).

    History shows that all great societies come to an end after a golden period of roughly two hundred years. Thanks to citizens who’ve rejected the natural moral law, we now see the end of America approaching.

    • reilz

      shame Mr. Borra , for writing that……what exactly is natural moral law? is it the Bible? if so there are justified examples of just about ANYTHING…..murder, incest, alot of the bases are covered if you take the words literally….same problem with the Koran, only those people act out on the killing thing…please step aside for the next generation of American exceptionalists…..thank you

      • “is it the Bible? if so there are justified examples of just about
        ANYTHING…..murder, incest, alot of the bases are covered if you take
        the words literally.”

        No you are wrong. Bad things happen in the Bible and they are Sins. Murder is not allowed, that’s a specific commandment. Incest? Are you talking about Lot and his daughters? What happened to Lot?
        The point of telling the story is that you learn there are consequences for sinning.
        That’s the OT in a nutshell, cause and effect, sin and earn God’s wrath.

        The quran is a whole other ball of wax. That is a book that specifically commands muslims to wage unceasing war upon non-muslims until the world submits to allah.
        Besides that it’s a plagiarism of the Bible; it’s a revision of the Bible to suit mohammad; it’s a replacement theology created to erase the Bible.

      • do our Mulim citizens feel about the HHS mandate..Their opinion seems left out of the public discourse. Do they support public funding of abortion on demand? I am not schooled in the laws of Islam, so this is a very sincere and honest question. The debate seems narrowly focused on Catholics. Are other larger institutionalized religions also filing suit in over this issue?

  • Adam_Baum

    Although one might be offended by this tortuous prose masquerading as jurisprudence, nobody should be surprised. If the preservation of rights is placed in the hands of the judiciary, then it is an act of desperation. The judiciary did nothing in the face of monstrous injustices-Slavery and the Fugitive Slave Act, mandatory sterilization, Executive Order 9066, among the more egregious examples of such abuses. In fact it often advanced such assaults on human dignity with cases such as Plessy v.Ferguson ,Buck v Bell, Roe v. Wade and Kelo v. New London

    The judiciary, and the bar are a monoculture. Worse,not just the judiciary, but all branches of government are staffed predominately by lawyers. They all attend law schools where legal reasoning is increasingly at odds with human nature and reality. Any novel idea, i.e., “unenumberated penumbras” issued by a Supreme Court Justice in a writ or published in a prestigious law journal becomes prevailing law or philosophy and isn’t subject to a reality check. Despite the absence of empirical tests and a long history of error, there is no aspect of life they don’t feel competent to rule upon. In short, its just one part of a government that sees fit to design that most intimate of porcelain appliances-so it will have no compunction about issuing pseudo-encyclicals defining and limiting the scope of religion.

    They have made judicial independence into judicial supremacy and quite frankly, I don’t see any end to it. Government by the people, of the people and for the people is now by, of and for the barristers.

    Judicial relief from Obamacare is not forthcoming. That scurrilous clod, John Roberts saw fit to that on June 28, 2012. Now we shall have our souls stained by forcible participation in horrendous acts-in no small part due to the tacit acquiescence of a hierarchy that all too often endorses the concentration of power in the name of such vacant, blithering and stupid nonsense as “preferential option for the poor”.

    Some Bishops were duly skeptical. Many were not. Now they are attempting to exhort a flock that has been conditioned to follow a secular shepherd. I fear this is just the beginning of a new period of oppression.