The Church v ObamaCare & the New York Times

As expected, more lawsuits have been filed against the HHS rule that would require Catholic hospitals to cover, directly or indirectly, birth control services for their employees. From the Washington Post:

Forty-three Catholic institutions, including the University of Notre Dame and the Archdiocese of Washington, filed 12 separate lawsuits against the Department of Health and Human Services Monday over new regulations requiring them to cover "drugs and procedures in direct conflict with their religious beliefs."

Here is the basic point of the complaint in Notre Dame v. Sebelius:

This lawsuit is about one of America's most cherished freedoms: the freedom to practice one's religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame ("Notre Dame") to violate its own conscience by making it provide, pay for, and/or facilitate those services to others, contrary to its sincerely held religious beliefs.

The issue here concerns a gray area between two positions. The Department of Health and Human Services stipulates in its rule that religious institutions (as it defines them) are not subject to the requirement to provide birth control services for their employees in violation of religious scruples. The plaintiffs in Notre Dame v. Sebelius do not argue that the government can't make such a requirement of non-religious institutions. The question, then, is whether a Catholic hospital (or other religious hospitals) should be properly defined as religious institutions with regard to the rule.

I argued in a previous post that the Church's case is weak in light of the Court's Free Exercise jurisprudence. A religiously founded hospital is not a church and so does not enjoy the protections in the recent Hosanna-Tabor case. If governments can regulate Catholic hospitals (that does not seem to be in dispute) and if the HHS rule is otherwise constitutional (watch this space) and if the rule is neutral and equitably applied, then the rule can survive a Free Exercise challenge.

However, forty-three Catholic institutions are entitled to disagree with me on this point. If they choose to exercise their constitutional right to challenge the rule in Court, that challenge deserves respect. The New York Times does not agree.

Thirteen Roman Catholic dioceses and some Catholic-related groups scattered lawsuits across a dozen federal courts last week claiming that President Obama was violating their religious freedom by including contraceptives in basic health care coverage for female employees. It was a dramatic stunt, full of indignation but built on air.

It is one thing for the Times to object to the Church's argument and quite another for the Times to object, indignantly, to the Church's decision to bring its argument before the courts. Here is some of what the Times argues:

In 1993, Congress required government actions that "substantially burden a person's exercise of religion" to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women's health and autonomy.

And there was no violation of religious exercise to begin with. After religious groups protested, the administration put the burden on insurance companies to provide free contraceptive coverage to women who work for religiously affiliated employers like hospitals or universities — with no employer involvement.

It is perfectly reasonable for the Times to argue that the HHS rule serves a compelling government interest and so the government can impose a substantial burden on "a person's exercise of religion". It is also reasonable to argue that the compromise offered by the White House means that no substantial burden is involved. It is just as reasonable for the Church to disagree on both points. The Church is entitled to think that forcing religious institutions to pay for contraception is not the least restrictive means of serving any compelling interest and that the President's compromise is a distinction without a difference. Resolving such disputes is precisely what Courts are for.

The Times central argument is clearly bogus.

Under the Constitution, churches and other religious organizations have total freedom to preach that contraception is sinful and rail against Mr. Obama for making it more readily available. But the First Amendment is not a license for religious entities to impose their dogma on society through the law. The vast majority of Americans do not agree with the Roman Catholic Church's anti-contraception stance, including most American Catholic women…

This is a clear partisan play. The real threat to religious liberty comes from the effort to impose one church's doctrine on everyone.

The Plaintiffs are not attempting to impose its doctrine on anyone. They are not challenging the legality of contraception or the government's power to impose the rule on secular institutions. They are resisting the imposition of government doctrine on hospitals run and supported by the Church. If they are right that their rights have been violated, then it doesn't matter a bit what the majority of Americans think about contraception. First Amendment rights do not depend on majority opinions.

The editors of the New York Times think that everyone is entitled to the opinions of the editors of the New York Times. They are all for court challenges to the constitutionality of government acts, so long as they agree with the challengers and do not favor the acts. When the Times sides with the government against the challenger, then the challenge is a "dramatic stunt" and a "partisan act".

This is both authoritarian and stupid. It's authoritarian because it regards any challenge to its own authority as illegitimate. It is stupid because all court cases are partisan by definition. Cases and controversies, this party against that one, is the only thing that the courts are authorized to hear.

I happen to agree with the Time's analysis of the Smith rule in this matter. Unlike the New York Times, I can respect people who disagree with me on such matters.

Comments

[larry kurtz]

The Holy Roman Kiddie Diddlers are circling the drain, Doc: may they rot in hell.

[larry kurtz]

Rearranging the deck chairs now:

http://www.denverpost.com/breakingnews/ci_20731047/denvers-catholics-learn-new-archbishop-is-samuel-j

[Bill Fleming]

KB, good overview of the issue. It begs the question as to whether any of us should have to capitulate to authority if doing so is in conflict with their religious beliefs. e.g. Why should I have to pay taxes to help fight wars or execute prisoners?

[Jon S.]

Bill,

There is a clear distinction, I think. It is one thing for the government to collect taxes and then spend them in ways that we don't like and even find offensive to our religious beliefs(war is a good example). It is another to compel a citizen to spend his own money to buy something that offends his religious beliefs. While there are some similarities in these scenarios, I think you'll see the crucial distinction.

We do not have to recur to 1st Amendment argument on the case. The Religious Freedom Restoration Act overturns Smith in part by making part of federal law that when there is a Free Exercise issue, there must be a compelling state interest and the government must act using the least restrictive means in burdening religious freedom. RFRA was struck down in its application to state and local law, but it is still applicable to the federal government. Whatever one thinks of contraception, its free dispersal is not a "compelling" interest of the government. If is was so, why does the Obama administration give so many exemptions from the ACA that is the foundation for the HHS mandate? If free contraception is so important, why are some sectors of the economy exempted from the federal mandate that it be covered by employer health insurance? But even if it is compelling, there are much, much easier ways to fulfill the government interest without making religious institutions directly complicit in providing contraception. The federal government could simply set up a program in all community hospitals for free dispersal of contraception. Or, it could give a tax credit. It could work with individual doctors and pharmacists to be federally approved prescribers and providers of contraception. There are lots of ways to go about this that would not run afoul of RFRA. The HHS mandate is not one of them. It does not use the "least restrictive means."

To here one of the nation's most prominent 1st Amendment lawyers speaking to this issue, go here: http://www.powerlineblog.com/archives/2012/05/a-cunning-stunt.php

[Bill Fleming]

Good answer, Jon, thanks. The other answer of course is that we can break the law, not pay taxes, and accept the consequences. If people were united and firm in their convictions, we could end war, hunger and capital punishment in one election cycle. Government rules at the consent of the goverened. A few Bishops behind bars would go a long way towards convincing me of the sincerity of their objections.

[Greg Scandlen]

Interesting, but you don't address one of the key issues -- what is the definition of a "religious institution?" For as long as I can remember every agency of the federal government, especially including the IRS, has defined it pretty broadly to include schools, hospitals, and other charities. Now one person, the Secretary of HHS, has arbitrarily decided that religious institutions are houses of worship -- period. That is a completely new and unprecedented idea, especially to those who believe our religion commands (commands, not suggests) that we feed the poor, clothe the naked, and so on. I would be interested in seeing your take on this.

[larry kurtz]

Smokescreen, boys.

The International Criminal Court is building a case against the Vatican. France's new president could very easily call for the seizure of all the Church's assets making its hypocritical legal argument in the US its swan song.

[Donald Pay]

I agree with Larry. The Catholic Church has become a criminal enterprise, and like a criminal enterprise, they take full advantage of our liberties. They have a better public reputation than Warren Jeffs, and more adherents, but the leadership is just as evil. The fact that a bunch of old men heading up a criminal enterprise in another country can affect this nation's health policy is cuckoo, and should never be allowed. Catholic law and policy, by the way, is the sort of international law that we need to keep out of the US courts.

[Ivan]

Donald and Larry thinking the same? I can only say, who would of thunk it.

[Jon S.]

Shorter Donald Pay: I hate the Catholic Church so it shouldn't have any rights.

[larry kurtz]

they have the right to remain silent;
anything the suspect says can be used against him;
they have the right to have an attorney present before and during the questioning and
they have the right, if they can't afford an attorney, to have a attorney appointed at public expense to represent them before and during the questioning.

[larry kurtz]

More on Der Pöpenführer:

http://patriotboy.blogspot.com/2012/05/worse-than-thechurch-paedophilia.html

[Donald Pay]

I hate the criminal hierarchy of the Catholic Church, not the people who profess the faith. In fact, much of the faith is fine with me. The Catholic Church needs a 21 st Century Reformation. But the point is not the evil of the Catholic hierarchy. It is the fact that this evil hierarchy is trying to manipulate our political system.

[Jon S.]

Really? Evil? Give me one @$%*ing example of the "evil" Church "manipulating" the political system?If you had one ounce of fairness in your head, rather than regularly partaking in the rantings of a bitter, angry, ideological ass, you'd know that the Catholic Bishops SUPPORTED the ACA before the abortion and contraception issues manifested themselves. All the Obama administration had to do to get the support of the bishops on this is not publicly fund abortion and find some other way to provide free contraception. But I guess abortion and condoms won the day. So much for the conservatives being obsessed with social issues and sex. In fact, the bishops have supported some sort of nationalized health care for decades. Just as they have essentially been cheerleaders for the welfare state. Just as they've opposed the death penalty. Just as they've been strong opponents of greater restrictions on immigration and have basically supported amnesty for illegals. Just as they favored nuclear freeze. It galls you, doesn't it Donald, to see an insitution that isn't actually engaged in the political hackery you regularly post on this blog. Sometimes they make liberals happy. Sometimes they make conservatives happy. And filing lawsuits (one by that noted bastion of right-wingery...Notre Dame?) is not "highjacking the political system." If it is pure silliness, then we will know right away when the lawsuits are thrown out of court. But on the one hand, you have Michael McConnell, one of our nation's top legal minds, giving an argument as to why the HHGS mandate violates the federal law, and on the other you have Donald and his trousered ape friend Larry making all the sense of the crazy uncle screaming about socialism at Thanksgiving. I'll wait for your typical bloviating response Donald, just as soon as the DNC and MSNBC tell you what to think.

[Donald Pay]

The Catholic Church's evil male hierarch has a real problem with sex and women. The evil faction that controls the church has connived to pass laws in many states that make it more difficult for people who were molested by priests and other church officials to sue the church for damages. They value their bank balance more than they value the wronged victims of the church. Not only that, but these twisted old men have taken pains to protect these perverted law-breakers from our legal system.

The Catholic Church's male-dominated hierarchy tries, but largely fails, to to impose their ridiculously arcane and non-Biblical sexual "teachings" on their own members. Most Catholics ignore these teachings as the ravings of sexually twisted men who are out of touch with reality. Yet somehow these twisted old men, after failing to sway most of their own members to follow their stupid ranting on contraception, expect to force a democratic government to bend to its twisted sexual and anti-women practices, just because it claims some religious aspect to their raving lunacy.

[larry kurtz]

Having six Roman Catholics where five rule on the same side each time on an entrenched 5-4 Court should frighten everyone.

http://www.npr.org/2012/05/31/154078307/the-health-care-law-and-the-roberts-court

[Scott]

Donald and Larry have spoken. We can all close our minds and our hearts and go to sleep now.

[larry kurtz]

professor schaff has no idea whether I wear trousers.

[Bill Fleming]

"No one is challenging the rights of those Catholics who object to birth control to eschew it themselves, and to denounce it in public. But the lawsuit proposes something different: namely, that religious freedom means they can deny access to birth control to people who don’t share their faith or that article of it. It doesn’t."

Read more http://www.newyorker.com/online/blogs/comment/2012/05/birth-control-and-the-catholic-church.html#ixzz1wdkbz2QS

[larry kurtz]

"Progressives Catholics are alarmed by a lot of things these days, but I don’t think anything galvanized them like the move against the sisters."

http://www.washingtonpost.com/blogs/post-partisan/post/catholic-nuns-push-back/2012/06/01/gJQAR69k7U_blog.html

[Scott]

Donald and Larry and NOW BILL, YAY! have spoken...good night everyone, just close your minds, close your hearts, close your eyes and go to sleep now, everything is OK!

[Rita]

OH, I just love these shots. And right across the steret from you! How awesome. I think this in the top 3 of things I miss... churches and cemeteries. Sounds odd, I know, but the above ground gravestones I find strangely comforting, and the old solid churches with stained glass, well they just feel more spiritual. I like the two as a set... The blue of the sky echoed in the blue of Mary's robe against the white and gray, that just knocks me out. Thanks to Owen, I'm so glad I found this blog!

[Zilda]

I think it's quite modern for 1880!Adorable fae7ade.I like a lot those brkcis and the simple beautiful cross.Ahh James the second shot is absolutely wonderful.Awesome composition.Well done!Le9ia

[Doublebb]

Most of the money is kept by either by the conmpay that is donating the money or it goes to the politicians who receive the rest. Greed is what takes place so keep your money to yourself and don't trust anyone except your family hopefully and your gut.References : Everyone is giving money to the Poor African people and I don't see any progress taking place. Greed greed greed that is all I can say. If youy want to help donate your time to the starving Americans in this country the wealthiest country on the earth. And 2 % owns most of it. Yes It is sad but true.