Posts Tagged ‘HHS Mandate’

An Important Victory for Religious Freedom

Monday, December 16th, 2013

An important victory was won today for religious freedom.  In a well-reasoned decision, Judge Brian Cogan of the United States District Court for the Eastern District of New York, issued a permanent injunction barring the enforcement of the HHS Mandate against Catholic agencies in the Archdiocese.

This is not the final stroke of victory against this iniquitous and repressive mandate, as we might hope.  But as Winston Churchill once said, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

The key element in Judge Cogan’s finding was his specific rejection of the Administration’s minimalistic approach to religious liberty.  The Administration continues to operate on the view that religion is a private matter. It apparently believes that any time a person or organization steps into the public square in any way, they leave their religious freedom behind, and can be compelled to conform their every action to secularist rules of behavior and thought.

Judge Cogan rejected that view.  He rightly found that the HHS Mandate improperly requires church agencies to perform acts that are directly contrary to our Catholic faith — by forcing them to affirmatively endorse and facilitate access to abortion, contraception and sterilization, under penalty of ruinous fines.  The essential quote from the decision:

[The plaintiffs] have demonstrated that the mandate, despite accommodation, compels them to perform acts that are contrary to their religion… there can be no doubt that the coercive pressure here is substantial…  and the Government has failed to show that the Mandate is the least restrictive means of advancing a compelling governmental interest.

This is a very important point, and one that should be axiomatic to anyone who believes in ordered liberty.  If religious freedom means anything, it means that the government can’t force people to do things that they believe God has forbidden.  For people of faith, there is a hierarchy of authority, and it is unjust for the government to try to arrogate to itself the ultimate authority over people’s consciences.  Coercion on matters of conscience are a gross violation of human rights.

Pope Francis has made this point forcefully in Evangelii Gaudium, saying

“A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism.”  (255)

This fundamental principle underlies Judge Cogan’s well-reasoned decision.  At some point, one hopes that the Administration will awaken, and recall that there are necessary limits on state power, if a nation, and its people, are to be truly free.

A Crossroad for Religious Liberty

Wednesday, November 27th, 2013

It is becoming increasingly clear that we are reaching a critical point in America, where fundamental questions of religious liberty will be decided.  Decisions will be made by the courts over the next few months and years that will shape the freedom of religion in our nation.

The Supreme Court has agreed to take two important cases.  Two private employers owned by people who take their Christian faith seriously are challenging the HHS mandate (which requires health insurance plans to cover contraception, including abortion-causing drugs and devices).  The particular legal issues are interesting — the scope of the Free Exercise Clause of the First Amendment, and whether for-profit businesses have rights under the Constitution and the Religious Freedom Restoration Act.  At stake is the ability of religious people to give full expression to their faith, even when they are carrying out commercial activity.

Other key cases are working their way through the courts.  A decision was just handed down by a federal district court in Pennsylvania, protecting the religious freedom of Catholic institutions that reject the HHS mandate.  This case is but one of many others filed by religious organizations seeking to vindicate their right to give witness to the Gospel, free of morally offensive government regulations.

Even more important than these particular cases, though, is the underlying debate over the very nature of religious liberty.

In each of these current court cases, the Administration has taken a very narrow and crabbed position on the scope of religious freedom.  They have essentially said that religious liberty extends to devotional and worship activities, and no further — that it is something exercised on Sunday morning, or in the privacy of our homes, but which must be put aside on Monday morning when people go out to work.  Despite a specific rebuke of this argument by the Supreme Court in 2011 (in the Hosanna Tabor case — see here and here), the Administration continues to try to limit our religious freedom to mere “freedom of worship”.

There is a growing number of people who agree with the Administration — people who consider themselves “liberal” or “progressive”, but who really are radical secularists who see little or no value in religion in the public square, or who pooh-pooh our concerns about religious freedom.  This editorial from the Times is fairly typical of this point of view. I have experienced this attitude many times in public debates — most recently at a debate I participated in at NYU over the re-definition of marriage — where there was an assumption that religious beliefs were disqualified from even being considered as part of the discussion.

This is unacceptable.  Our religious beliefs stem from the very core of our being, and are expressed by every aspect of our lives.  They cannot be confined to a narrow scope of the private sphere.  The Gospel is for every aspect of our lives, and we are on a sacred mission to spread it to all.  All of society benefits from the contribution of religious beliefs to the public debate and to the common good.

We are reaching a critical moment in the debate.  It is timely, then, that we have Pope Francis’ new apostolic exhortation, Evangelii Gaudium, on the New Evangelization.  In this document, the Holy Father gets right to the heart of the our current debate over religious liberty:

A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace. (255)

Our nation is clearly in danger of moving into a time where religious belief is victimized by this “discrimination and authoritarianism”.   The freedom of all is threatened when the freedom of any is at risk.  We are at a crossroad.

Any Chance for Reasonableness?

Tuesday, October 1st, 2013

There’s even more furor and confusion than usual in Washington, as the House, Senate and White House struggle over the passage of budget bills, raising the national debt limit, funding for the implementation of the Affordable Care Act, and government shut-downs.  But something important is being overlooked — the continuing threats to the conscience rights of individuals and institutions in the Affordable Care Act and the regulations that are implementing it (including the HHS contraception/abortifacient mandate).

In a normal, functioning governmental system, important public policy measures are introduced as individual bills, public input is obtained through hearings, and the measure is openly debated by legislators.  Since we no longer appear to have such a system of government, important policy issues are tacked onto spending bills, and our government leaders rely on confrontational strategies and parliamentary gamesmanship to bend others to their will.

Lost in all of this is that crucial constitutional and natural rights are being threatened, and legislative action is needed to provide necessary protection for those rights.

One such proposal is to delay the implementation of the HHS mandate.  The Administration has already granted numerous waivers, delays, exemptions, and grace periods for various provisions of the Affordable Care Act.  What we would like to see is for Congress to vote to delay the implementation of the HHS mandate for one full year, which would give the Supreme Court time to decide some of the cases challenging the mandate.  In essence, all we are asking is that Congress put the controversy on hold, out of respect for the seriousness  of the constitutional rights at stake.

The House has already passed a continuing budget resolution that included that provision, but the Senate has rejected it.  We hope that a more conciliatory, reasonable approach will prevail, and that this common-sense measure would be accepted.

We also hope that genuine conscience protection legislation would be considered by Congress.  For example, the USCCB is advocating with Congress to include the Health Care Conscience Rights Act (which would provide broad protection for religious liberty among health care workers and institutions).   The bishops have also been pressing for legislation to address the specific conscience problems presented by the HHS mandate.

The situation in Washington is extremely frustrating, and it is difficult to see a solution to the partisan gridlock.  All we are asking is for some breakthrough of reasonableness, so that precious liberties aren’t lost in the process.

That shouldn’t be too much to ask.

Yet Another HHS Mandate Fraud

Wednesday, July 10th, 2013

The Administration has once again announced yet another attempt to square a circle, and they have once again failed.  And so, we now have new regulations on the HHS mandate — the requirement that employer health insurance policies cover abortifacient drugs, sterilization, and contraception.

The objections of the Church to this violation of our rights are well known, and were asserted yet again by Cardinal Dolan on behalf of the U.S. Bishops.

The Administration and its allies, on the other hand, continue to assert that they have already satisfied all objections, and, in effect that religious people and organizations should just sit down, be quiet, and obey.

Not so fast.  The new regulations — just like the old ones — are a fraud and a violation of fundamental rights.

Consider the alleged “exemption” and “accommodation” for some religious employers.

The “exemption” would certainly grant protection to many religious organizations, but nobody knows how many, or how few.  The key provision in the regulation refers to an obscure part of the Internal Revenue Code that is not exactly written in clear and self-evident prose.  Nobody knows how, in the end, the IRS will interpret and apply that provision.  Does anyone trust them to do so in an even-handed way?

The “accommodation” is even more problematic.  Every religious non-profit that objects to the mandate knows that when they offer their staff health insurance, they will also be providing them the objectionable products and services.  It is true that they won’t have to list the offensive things in their plan booklet, but they know that they’re covered in any event — and that the employer will be paying for them.  As a moral matter, that’s really no different from directly and explicitly providing for the coverage in the insurance plan.

The “accommodation” is basically asking religious non-profits to accept a lie and pretend that it is the truth.

The new regulations offer no help whatsoever to for-profit businesses.  They will be coerced into providing, promoting, and paying for morally offensive things.  Nothing is changed for them in the fundamental injustice of the HHS mandate, and their many lawsuits against the mandate will go forward.

The heart of the matter ultimately doesn’t depend on specifics of these very complex regulations.  We have a situation where the government is forcing people to cooperate in immoral activities, either directly or under a transparent fig leaf of lies.

There is a core of liberty that is inherent in the nature of the human person, into which the government may not intrude without becoming a tyranny.  One such area is the natural right of individuals and institutions to be free from government coercion of their consciences.  One would have thought that this was made clear on July 4, 1776, and that the Lincoln and Jefferson Memorials would serve as ample reminders of those principles.

Apparently the lesson has been forgotten in our nation’s capital.

The Times and Fantasy Legal Theories

Tuesday, July 2nd, 2013

The Times has put forth yet another magisterial editorial denouncing the Church for our failure to get up to date with the Brave New World of contraception.  They seem particularly outraged that people who have a moral objection to contraception — and to being forced to pay for it and promote it — would dare to take their case to court.  This is odd, since the Times usually seems to like it when people bring the courts into constitutional and moral disputes.

Of course, you can’t really expect much sense from the Times’ editorial board, so the item itself isn’t really worth responding to in any detail.  But one point in the article caught my attention, and I wrote a letter to the editor about it.

The point that struck me was their comment about a decision by the United States Court of Appeals for the Tenth Circuit.  The court was ruling on a legal challenge to the HHS contraception and abortifacient mandate. The case was brought by Hobby Lobby, a for-profit business run by Christians who object to being forced to promote practices and products against their moral beliefs.  They cited the First Amendment to the Constitution and the Religious Freedom Restoration Act.   This case is similar to 60 other cases brought against the mandate.

In their editorial, the Times quoted a law professor who is a consistent adversary of the Church in the public square:

Marci Hamilton, a professor at Cardozo School of Law and an expert on the Restoration Act, rightly called the 10th Circuit’s interpretation of the law “a fantasy” that badly undermines rules forbidding corporations from discriminating on the basis of religion.

The professor’s comment is more interesting for what she omitted, than for what she said.  Hence my letter to the editor, which follows:

In your July 1 editorial, “The Contraception Battle”, you commented on the recent decision by the 10th Circuit Court of Appeals, which recognized a private business’ free exercise rights under the First Amendment and the Religious Freedom Restoration Act, in a challenge to the HHS contraception mandate.  You quoted Prof. Marci Hamilton to say that this decision was based on a “fantasy” legal theory.  Perhaps by “fantasy”, Prof. Hamilton actually meant “a legal theory that has already been accepted in 22 separate lawsuits by federal district and appeals courts around the nation”.  That fact — which is not a fantasy at all — might have been useful for you to mention to your readers, so that they could understand the full picture of what is actually happening in court, when people seek to defend their constitutional rights against government overreaching.  We understand that you disagree with those rulings, but you should at least acknowledge that your opinion has already been rejected by most of the federal courts that have considered these cases.

Yes, that’s correct — what the professor called a “fantasy” is a legal principle that has been found persuasive by at least 22 federal courts so far.  It actually is not that odd a concept — people don’t surrender their constitutional rights because they choose to carry on a business.

You might have expected the Times to give their readers the full context of the story.  Well, actually, I don’t expect it, since I never expect fairness from the Times.

What’s most interesting to me is the ideological blinders that the Times wears on this particular subject.  The Times itself is a for-profit corporation, and they ardently defend their own First Amendment rights to free speech and freedom of the press.  Isn’t it strange that in the fantasy legal world of the Times, other organizations aren’t permitted to enjoy their own First Amendment rights — especially when they disagree with the Times?

A Long Train of Abuses

Thursday, May 30th, 2013

Many people have expressed concern and disquiet over a recent article in the Times relating to ArchCare, the organization of health care affiliates of the Archdiocese, such as our nursing homes.  These institutions have for many years been paying into the benefits fund of Local 1199, the union that represents their employees.  These benefits funds pay for morally offensive items, such as contraception.

The implication of the article was that this represented some kind of hypocrisy on the part of the Archdiocese, given that we oppose any such mandate to provide coverage for contraception — such as the infamous HHS mandate.

The Archdiocese has responded to these allegations officially, in an effort to allay the disquiet and to correct the record.  Let me add my own, unofficial, personal take.

It’s important that people understand context here, so that they get the real picture.

We have a state law contraception mandate that is binding on all employers who provide prescription coverage, with a very narrow exception for a few religious employers (an extremely tiny exception similar to the one in the original HHS mandate).  Our hospitals and health care agencies would not qualify for the exception, because they serve and employ people without regard to their religious beliefs.  This mandate was challenged up to our Court of Appeals, and we lost.  So that’s a key factor — there’s an element of strict legal coercion involved here.

Second, we are in a very strong union shop state.  This contributes yet another element of legal coercion.  The health care workers union, Local 1199, is the mandatory union for health care workers.  The trade association is the industry’s recognized bargaining agent for the hospitals.  Once they negotiate a contract with Local 1199, that’s the contract for everyone in the industry — even if you weren’t a member of the association, you would still have to sign the standard industry contract.  The union won’t negotiate with you separately. It’s a “take it or leave it” proposition.

As a result, there’s no way to change or opt out of the health coverage — any effort to evade the standard contract would produce massive disruption of our health care institutions (strikes, etc.) and a ruinous and certain-loser legal action before the National Labor Relations Board for unfair labor practices.

So we have two layers of legal coercion that affect us, when it comes to the operation of our facilities, and the provision of benefits to our employees.

There are also some essential facts that affect the analysis of this situation from a moral perspective.  There is an fundamental element of separation between the Archdiocese and the union health plan.  It is not like the HHS mandate, which would have required us to list contraception in our own plan, and to directly promote it to our employees in our human resources materials — these offensive elements would be specifically endorsed by us, explained by us, and counseled by us.   The HHS mandate would literally drag words out of our mouths — and it’s hard to imagine a more offensive violation of our liberty.

The union contract is entirely different — we have nothing to do with the benefits, which are administered completely by the union, it is entirely out of our control, there’s no endorsement, there’s no involvement beyond writing the check to pay for it.

So, morally speaking, it’s an identical situation morally to paying taxes that go to Medicaid contraception and abortion — the remote cooperation with evil is mitigated by the fact that my conduct is involuntary, and I have no involvement in the act itself nor do I facilitate it in any way.

There’s another element here.  There is an argument underlying the Times piece — and we’ve seen it elsewhere as well — that our compliance with these other coercive mandates somehow renders our protest against the HHS mandate void.  I just don’t understand this.  If we are repeatedly subject to unjust actions by the government, how does that prevent us from opposing a new imposition?  At what point of coercion do I lose my basic human right to protest?

Here’s an analogy that I think people should think about.  Go back to your history books, and re-read the Declaration of Independence.  Read the key paragraph, the one that deals with our unalienable rights to life, liberty, and the pursuit of happiness.  The remainder of that paragraph is an argument that a free people are likely to endure a “long train of abuses and usurpations”, before they finally take action to defend themselves.

I certainly don’t compare this situation to that experienced by our Founders, nor am I saying that we’re justified in taking up arms.  But the fact that we are willing to be long-suffering does not in any way mean that the abuses lose their offensiveness, nor does it mean that we waive our rights.

All it means is that when we do resist, we will be all the more resolute.

 

The Next Steps on the Mandate

Monday, July 23rd, 2012

The deadline for the implementation of the HHS contraception/abortion mandate is now upon us. As of August 1, religious organizations will have to compromise their consciences and comply, or apply to the government for an extension or exemption, or risk the penalties of non-compliance.

This deadline will probably have little direct and immediate impact on ordinary Catholics who already have health insurance from Medicare or a private employer. But for the Church, any danger of being forced to compromise with sin will do incalculable damage.  A number of Catholic institutions and dioceses are challenging the mandate in court, but those cases won’t be decided for quite some time.

In the meantime, here are some suggestions about what people can do at this point:

Prayer — This is, of course, our ultimate weapon. We need to pray for our nation; for our elected and appointed officials, for a conversion of heart; for our judges, for wisdom in applying the law to these cases; for those who will be affected by this mandate, that they will have the wisdom and courage to resist as best they can.  For some suggestions about prayer activities, see our webpage about the Fortnight for Freedom.

Advocate — There are significant legislative initiatives that would overturn the HHS mandate and protect our freedom of religion. First and foremost are the Respect for Rights of Conscience Act and the Abortion Non-Discrimination Act. These bills stand on their own, but they are also being attached to appropriations bills that are pending in the House of Representatives. if your Congressional representative is on the Appropriations Committee, please contact and urge them to keep conscience protection in the funding bill.

Support our Bishops — During this bruising political season, our bishops have been taking a beating in the media. They need our support and help, and it would lift their spirits if they heard from faithful Catholics, in support of their efforts to defend the freedom of the Church.

There is an old saying, often mis-attributed to Edmund Burke, but which is true regardless of who said it: “All that is necessary for the triumph of evil is that good men do nothing”

Don’t lose hope!  Throughout history, the Lord has stood by us in our hour of need, and assured us, as He did to Gideon, “I will be with you” (Judges 6:16).  Let us pray with confidence to Our Lady, Help of Christians, for the strength and constancy we need.