Religious freedom, HHS mandate in spotlight as election draws near


By Maria Wiering

This is the second in a four-part series examining election-related issues.

Evangelical-owned arts-and-crafts retailer Hobby Lobby filed suit against the federal government Sept. 12 over the U.S. Department of Health and Human Services mandate for employers to provide insurance without co-pay for controversial services.

The suit joins 28 similar lawsuits pending in federal courts. Although most plaintiffs are Catholic entities, Hobby Lobby’s action underscores that opposition to the mandate cannot be dismissed as “a Catholic issue,” but is a matter of religious freedom for all.

Those opposing the mandate hope policymakers are getting the message. Cardinal Timothy M. Dolan of New York prayed for a renewed respect for religious liberty in benedictions at recent Republican and Democratic national conventions.

The 2012 Republican Party platform adopted Aug. 29 includes a plank outlining its support for religious freedom and opposition to measures compelling faith-based institutions or individuals to violate their beliefs.

By contrast, the 2012 Democratic Party platform mentions freedom of religion only in passing, stating that President Barack Obama has “respected the principle of religious liberty” in regards to “(ensuring) that women have access to contraception in their health insurance plans.”

The pending lawsuits – whose plaintiffs include Cardinal Dolan’s Archdiocese of New York, the Archdiocese of Washington, The Catholic University of America in Washington, D.C., and the University of Notre Dame in South Bend, Ind. – argue otherwise.

Promulgated by HHS Secretary Kathleen Sebelius in January, the preventive services mandate is part of the 2010 health care reform law, and would force most employers to pay for contraception, female sterilization and abortion-causing drugs, which violate Catholic Church teaching.

The measure provides exemptions for “religious employers,” but its narrow definition of “religious employers” would only apply to parishes, excluding most institutions the bishops consider church, as they put the faith into action.

According to the mandate, “a religious employer is one that (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization.”

Under this definition, Catholic hospitals, charities, universities and other institutions do not qualify as “religious employers.”

“It is a definition that reduces freedom of religion to freedom of worship, and seeks to confine the church’s activities to the sacristy,” Baltimore Archbishop William E. Lori said in a Sept. 9 presentation on the topic at St. John Neumann, Annapolis.


Vocal leader

As chairman of the U.S. Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty, Archbishop Lori has been a national leader in the cause.

The U.S. bishops brought their concerns to President Obama’s administration last year, before the mandate was finalized. When it was released in January, the only concession the administration made was to postpone compliance for faith-based nonprofits for one year under a “safe harbor” provision.

The mandate went into effect Aug. 1 for most companies and organizations, and will affect health care insurance policies at the next renewal date. Some plans are protected temporarily under a grandfathered status.

The HHS mandate is the first listed in a litany of concerns the U.S. bishops outlined in a March statement on religious liberty.

In requesting an expansion of the mandate’s definition of “religious employer” and protection against other religious liberty infringements, Catholics are not asking for any special treatment under the law, the bishops say, only that the law allow its institutions to go about their work according to their religious convictions or church teaching – as they did before the advent of recent laws that have thrust them into conflict with local, state and federal governments.

“The administration is drawing lines where we, the sponsors of religious works, do not draw lines ourselves,” Archbishop Lori said. “The government’s attempt to tell the church which of our institutions seem religious to the state is profoundly offensive, and it entangles the government in the internal life of religious institutions.” The administration has added several so-called “accommodations” to the mandate, but any changes made to the measure, Archbishop Lori said, have not altered its substance or the bishops’ concerns, and none were created with direct input from the bishops.

Bishops say institutions such as schools and charities are an arm of the church and contribute to the common good. In Maryland, the Archdiocese of Baltimore is the largest provider of social services to the poor. It is also the largest private educator, and its students include many of the state’s “most disadvantaged children,” Archbishop Lori said.

This church’s right to provide these services in accordance with its teachings is protected by the First Amendment, which lists freedom of religion first, anchoring the other freedoms the amendment outlines, Cardinal Dolan told a standing- room only crowd at the Newseum in Washington, D.C., Sept. 10.

“Simply put, government has no business interfering in the internal life of the soul, conscience or the church,” said Cardinal Dolan, USCCB president.

In January, Pope Benedict XVI addressed his own concerns about religious freedom to American bishops, who later thrust the issue onto a national stage with the Fortnight for Freedom that opened June 21 in Baltimore at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary.

Archbishop Lori said this struggle is not about contraception, but about preserving the freedom to exercise religion free from government interference. He also rejects efforts by some to find ways to justify complying with the mandate.

Although the actual “cooperation with evil” is “fairly remote” in the case of the HHS mandate, he said, those looking for theological loopholes are missing the point.

“It is not just a question of applying the moral principles regarding cooperation with evil; it is also a question of our need to stand up for religious liberty,” he said.


Protecting consciences

Conscience protections for those with moral objections to the measures outlined in the HHS mandate have precedent in the case of abortion. Federal law protects the conscience rights of institutions and health care providers from participating in abortion or sterilization procedures, as well as the rights of health care entities and insurance companies who do not provide, pay for or refer for abortions, from government discrimination.

In lieu of an administrative concession or legislative fix, Catholics and others who oppose the mandate are following the federal lawsuits.

In August, the Obama administration asked the courts to dismiss the lawsuits, calling them premature and without standing. Lawyers representing the 43 Catholic dioceses, schools, hospitals and social service agencies who filed a dozen lawsuits May 21 countered the brief, explaining that even entities currently protected by the safe harbor provision must make costly and time-sensitive decisions regarding the impending mandate.

Archbishop Lori, meanwhile, said he was “heartened” when a Colorado federal judge in July awarded a Catholic-owned heating ventilation and air conditioning manufacturer temporary injunction from complying with the mandate as its litigation moves forward.

Hobby Lobby, the only other for-profit business to file suit, hopes to have the same emergency relief before the company renews its insurance plan Jan. 1, 2013.

Unlike the Catholic plaintiffs, Hobby Lobby’s owners do not morally oppose contraception, said David Green, founder and CEO of the Oklahoma City-based retailer. They do oppose abortion-causing drugs such as the “morning after pill” and “week after pill” which the Federal Drug Administration classifies as “emergency contraception,” and are included in the mandate.

 “We simply cannot abandon our religious beliefs to comply with this mandate,” Green said in a Sept. 12 press call. “We believe whole-heartedly that it is by God’s grace and provision that Hobby Lobby has been successful. Therefore, we seek to honor him in all that we do.”

The Washington, D.C.-based Becket Fund for Religious Liberty is representing the retailer, as well as two Evangelical Christian colleges.

“This is by not any means a Catholiconly issue,” said Kyle Duncan, general counsel for the Becket Fund.

Other efforts to push back against threats to religious liberty have drawn support from religious leaders from nonCatholic denominations and non-Christians, including Orthodox Jews, Muslims and Sikhs.

Earlier this summer, Archbishop Lori said that protecting the first freedom should be an “American issue” free from partisanship. He expects efforts to preserve the first freedom to continue well beyond November’s election.

“Unless we stop it now, this attempt to narrow the role of religion in our culture will spread like a virus through our nation’s laws and policies,” he said in Annapolis. “The future will look like this: either we stay in the sacristy, or violate our consciences – not a good menu from which to choose.”

Copyright (c) Oct. 3, 2012 


Catholic Review

The Catholic Review is the official publication of the Archdiocese of Baltimore.