We’re in a war,” declared Kathleen Sebelius, Secretary of the Department of Health and Human Services (HHS), to a gathering of NARAL Pro-Choice America [1]. The Obama administration has declared war on people of faith in America and the Catholic Church in particular, forcing them to compromise their sincerely held religious beliefs or be heavily fined, taxed, and run out of business. Cardinal Francis George, O.M.I, of Chicago reportedly said: “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square.” If he is correct, then these are indeed desperate times that may demand desperate measures.
Chronology of the Controversy
President Barack Obama signed into law the “Patient Protection and Affordable Care Act” on March 23, 2010 and on March 30, 2010 he signed the “Health Care and Education Reconciliation Act.” Together they are known as the “Affordable Care Act” and they regulate the health insurance market of the nation, both “group health plans” and “health insurance issuers.” (Editor’s note: The reader will note that much has transpired since the time of this writing. However, the following events adequately indicate the trajectory taken by the administration.)
One provision of the Act requires all employers of more than 50 employees to provide coverage for preventative care and screenings for women as the Department of Health and Human Services shall mandate. On July 19, 2010 the HHS, the Department of the Treasury, and the Department of Labor published an interim final rule that required providers of group health insurance to cover preventative care for women as provided in guidelines for which the HHS would publish. As required by law, the HHS accepted public comments on the interim final rule until September 17, 2010.
The HHS directed the Institute of Medicine (IOM) to suggest a list of recommended guidelines for drugs and services to be covered in all health plans as preventative care for women. The IOM invited only a select few groups, generally favorable to abortion, to advise it, including the Guttmacher Institute and Planned Parenthood Federation of America. On July 19, 2011 the IOM published its recommendations for preventative services including sterilization procedures and all contraceptive methods approved by the Food and Drug Administration such as Intrauterine Devices, Plan B (morning-after pill), and ulipristal or “ella” (week-after pill).
The HHS, the Department of Labor and the Department of the Treasury adopted the IOM recommendations in full and promulgated the interim final rule, the infamous Mandate on August 1, 2011. This time the HHS did not provide for a period of comment, as required by law, prior to adopting the IOM recommendations that went into effect immediately. Instead, it allowed comments from the public to be made through September 30, 2011. During this period of time it is estimated that over 100,000 comments were submitted against the HHS Mandate. Six days later, on October 5, 2011, Sebelius told a gathering of NARAL Pro-Choice America, “We’re in a war.”
Bad-Faith Legal and Political Stratagems
Christian and Catholic organizations have filed federal lawsuits challenging the constitutionality of the HHS Mandate because it requires employers to provide coverage, without co-pay, for contraception, sterilization, and abortion-inducing drugs regardless of whether or not they accept federal funds. Responding to political pressure, President Obama announced on February 10, 2012 that he would create a process to fashion a different mandate for contraceptive services sometime in the future. That same day, the Obama administration issued a “guidance bulletin” describing a “Safe Harbor” from the HHS Mandate—qualifying organizations need not comply with the HHS Mandate until January 1, 2014 if they file proper notice with the HHS by August 1, 2013.
The appearance of an olive branch being held out by President Obama (that he intends to modify the HHS Mandate requiring contraceptive and abortion services in the future) may be no more than a legal stratagem. Belmont Abbey College’s Complaint asks the court to declare the HHS Mandate unconstitutional. Sebelius argues that the court should dismiss Belmont Abbey’s Complaint on the ground that it is not “ripe.” Why? Because Obama may modify the HHS Mandate sometime in the near future:
Defendants [the Obama Administration], however, have made clear that they will propose and finalize changes to the preventative services coverage regulations intended to accommodate the concerns expressed by plaintiff [Belmont Abbey] and other similarly-situated organizations. . . . [So] there is a significant chance that the modifications will alleviate altogether the need for judicial review. . . .
Another misleading feature about the HHS Mandate is its “religious employer exemption.” Under the HHS Mandate the Health Resources and Services Administration may grant religious exemptions for religious employers if their mission is solely to inculcate religious values, and it primarily employs persons who share its religious tenets, and it primarily serves those who share its religious tenets (emphasis added). However, most Catholic charitable organizations have broader aims and serve larger populations than those prescribed by the HHS Mandate for a religious exemption. The Complaint filed by Ave Maria University makes this point very clear:
[M]ost religious organizations, including the University, have more than one purpose . . . [and] the inculcation of religious values is only one purpose among others . . . [and they may] employ many persons who do not share the religious organization’s beliefs . . . [and they may] serve persons who do not share the religious tenets of the religious organization.
The bad faith displayed by the Obama administration in its legal argumentation in support of the HHS Mandate pales in comparison to the bad faith it has displayed politically towards the Catholic Church. By artfully pitting bishops against the faithful over the issue of contraception, Obama hopes to inflame division in the Church for his political gain, said Cardinal George:
Even in the midst of this strengthened unity [while he and the bishops of Illinois were in Rome on their "ad limina" visit with Pope Benedict], news of attempts to weaken the unity between the bishops and the faithful have been reported. This is the first time in the history of the United States that a presidential administration has purposely tried to interfere in the internal working of the Catholic Church, playing one group off against another for political gain.
Cooperation in Contraception is Evil
For Catholics there can be no compromise, no cooperation, with the serious sin of contraception. The Catechism, quoting Humanae Vitae, states: “‘Every action which, whether in anticipation of the conjugal act, or in its accomplishment, or in the development of its natural consequences, proposes, whether as an end or as a means, to render procreation impossible,’ is intrinsically evil” (no. 2370). Catholics are not allowed to use or aid and abet others in their use of contraceptives. Moreover, no Catholic is allowed to counsel or refer to counseling those who desire to use contraceptives or abortion inducing drugs. Under the HHS Mandate, Catholic organizations that provide health care will be required to do both or be at a competitive disadvantage by not providing health care benefits to their employees and, thereby, risk going out of business. Ave Maria is just one example:
The Mandate forces the University to provide emergency contraception, including Plan B and ella, [the week-after pill] free of charge, regardless of the ability of insured persons to obtain these drugs from other sources.
The Mandate forces the University to fund education and counseling concerning contraception, sterilization, and abortion that directly conflicts with the University’s religious beliefs and teachings. The Mandate imposes a burden on the University’s employee recruitment efforts by creating uncertainty as to whether the University will be able to offer health insurance beyond 2012.
What will Congress or the Supreme Court Do?
Congressman Jeffery Fortenberry introduced in Congress “The Respect for Rights of Conscience Act” to ensure that those who participate in the market for health insurance “retain the right to provide, purchase, or enroll in health coverage that is consistent with their religious and moral convictions.” The United States Conference of Catholic Bishops has mobilized a grassroots campaign to secure the passage of this bill.
Federal Courts of Appeal have already considered several challenges to the overall constitutionality of Obama’s Patient Protection and Affordable Health Care Act. On November 14, 2011 the United States Supreme Court announced that it would hear Florida v. HHS, an appeal from the Florida Court of Appeals striking down the “individual mandate” (not to be confused with the HHS Mandate). The individual mandate requires all individuals above a certain income level to maintain health insurance coverage and it provides a penalty for noncompliance by way of a phased-in tax of up to 2.5% of income up to a maximum of $695 for an individual or $2,500 for a family. However, even if the Supreme Court were to hold that the individual mandate is unconstitutional the rest of the Patient Protection and Affordable Health Care Act, including the HHS Mandate, might still survive. So, separate lawsuits challenging the constitutionality of the HHS Mandate are required.
Should a case challenging the HHS Mandate reach the Supreme Court, its decision would certainly entail a review of two cases: Employment Division, Department of Human Resources of Oregon v. Smith (1990) and the recently decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012). In Hosanna- Tabor the Supreme Court recognized a narrow “ministerial exception” and declared a Lutheran Church free of governmental regulations concerning equal employment in the appointment and dismissal of its Church ministers. On the other hand, in Smith the Supreme Court held that Native Americans who ingest peyote in tribal ceremonies as a sacrament must still comply with “neutral law[s] of general applicability” proscribing peyote.
The test that has emerged from these two cases seems to be that civil laws touching upon “internal” church matters will be overturned as unconstitutional whereas those civil laws that concern “outward physical acts” will be upheld as constitutional. If the Supreme Court applies the Hosanna-Tabor internal-external test to the HHS Mandate they must note that the Catholic moral prohibition against contraception collides with the constitutionally protected right to use contraceptives and abortion-inducing drugs. Such a moral prohibition may be seen as an outward physical act of religion and not a strictly internal matter of Church discipline. Therefore, if the HHS Mandate were viewed as a neutral law of general applicability, it would be upheld under Smith. This is why the lawsuits seeking judicial review of the HHS Mandate point out that the Mandate is clearly not neutral and not a law of general applicability. Rather, the HHS Mandate intentionally discriminates against people of faith and their religious institutions as Ave Maria University’s Complaint makes clear:
Defendants [HHS] promulgated both the Mandate and the religious exemption to the Mandate in order to suppress the religious exercise of the University and others.
By design, Defendants [HHS] impose the Mandate on some religious organizations but not on others, resulting in discrimination among religions.
The Mandate vests HRSA with unbridled discretion in deciding whether to allow exemptions to some, all, or no organizations meeting the definition of ‘religious employers.’
What will we Do?
It must be remembered that in 1965 the Supreme Court in Griswold v. Connecticut overturned this nation’s criminal anti-contraception laws. In the course of 47 years contraception has gone from being a crime to becoming a fundamental civil right and now presses to be recognized as an entitlement that everyone must be complicit in promoting and paying for. Pope Paul VI predicted as much. He said in 1968 that if the pernicious practice of contraception should ever be established as a wide spread customary practice, what will prevent “unscrupulous rulers” from imposing it on their populations? Should contraception coverage be imposed on this nation by the HHS Mandate as a preventative measure for women’s general health care it may be but a short step for unscrupulous rulers to require contraceptive usage for the general welfare of the nation. Justice Arthur Goldberg in a concurring opinion in Griswold v. Connecticut opined that the state could for “compelling” reasons require married couples to be sterilized after two children were born to them:
Surely the Government, absent a showing of a compelling subordinate state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them.
Perhaps President Obama’s Health Czar, John Holdren, may have the opportunity to take further steps to impose on us his dream of a China-like coercive “two-child policy” if President Obama secures a second term of office. He wrote years ago that “there is ample authority under which population growth could be regulated. . . . [I]t has been noted that compulsory population-control laws, even including laws requiring compulsory abortion, could be sustained under the existing constitution if the population crisis became sufficiently severe to endanger the society.”
Medicine under a dictatorship begins to change subtly, said Dr. Leo Alexander, who studied the trajectory of Nazi medicine. The specter of a hostile medical régime now threatens us. Sebelius believes she is engaged in a war. Worse is sure to follow if the HHS Mandate is not defeated by spiritual, legal, and political means.
By standing ready to renounce the ownership of all their charitable institutions rather than compromise the apostolic Faith entrusted to them, U.S. Catholic bishops are teaching by their own example that contraception is a serious evil. The real question is, what will we do? Will Catholics in America humbly obey the Church’s teaching and repent of sinful contraceptive practices, a true penance pleasing to the Lord, or will God allow unscrupulous rulers to first mandate that we all pay for contraceptives and then, sooner than later, mandate that we all use contraceptives under threat of heavy penalties?
Desperate times do, indeed, call for desperate measures!
D. Brian Scarnecchia is an author, lecturer, practicing attorney, and the founding President of the International Solidarity & Human Rights Institute (ISHRI). He is the Director of the Legal Studies and the Human Life Studies programs at the Franciscan University of Steubenville and an Associate Professor of Law at Ave Maria School of Law. Scarnecchia also serves on the board of directors and is legal counsel for the Society of Catholic Social Scientists (SCSS) and is their main non-governmental organization (NGO) representative to the United Nations. He and his wife, Victoria, have six children and two grandchildren.
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