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

By

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).

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