Those HHS rules head to court (once again)

It’s safe to say that several major themes continue to manifest themselves in most — but not all — of the mainstream news reports about the religious liberty cases linked to those Health and Human Services mandates on religious organizations.

If you looked inside your local newspaper, you may have seen coverage of the latest major development in this story. Frankly, I was surprised at the meager coverage in some major newspapers. More on that in a minute.

Let’s start with the bad. If you want to see a perfect example of how not to cover this story, then look at the news report offered by the Tribune News Service bureau here inside the DC Beltway. This was the story I read this morning inside The Baltimore Sun.

This one rings all of the wrong bells. Let’s walk through a few key elements:

WASHINGTON – The battle between the Obama administration and the Catholic Church hierarchy intensified as 43 groups — including the archdioceses of Washington and New York, and the University of Notre Dame — filed lawsuits Monday challenging a new rule that requires employers or their health insurers to offer birth-control coverage to workers.

The Catholic organizations, which filed the suits in federal courts across the country, argue that the federal mandate infringes on their religious freedom because it violates church teachings.

Catholics vs. the Obama White House. Check. Also, it should be noted that the key to the religious liberty claims is not that these new federal rules violate church teachings. The problem is that the mandates require religious institutions to violate their own doctrines, traditions and teachings.

As has sadly become the norm, the story quotes the Obama administration’s views of this dispute as fact, without any debate allowed between legal teams on both sides. And then there is this summary statement:

The lawsuits are the latest in a series of battles over contraception and women’s health. In recent weeks, for example, Georgetown University was criticized by conservative Catholic officials for inviting Kathleen Sebelius, the secretary of health and human services, to give this year’s commencement address.

Oh well. That one doesn’t even offer an accurate statement of Georgetown’s take on that controversy — since it is misleading to state that the pro-abortion-rights Sebelius spoke in “this year’s commencement address.” She was a featured speaker during one of the graduation events for an individual school within the university, not the keynote speaker in the large undergraduate commencement rite. Liberal Catholics will care about that detail.

However, the key hole in this story is that — once again — it describes the conflict (a) as a Catholics vs. White House affair about (b) birth control (other than the fact that some of those nasty bishops keep yelling about religious freedom).

Here’s the key fact that you need to look for in your local coverage: The simple recognition that non-Catholic groups, including many that do not oppose birth control, are also filing lawsuits against the Obama administration. For example, The New York Times ever-so-briefly notes that:

At least 11 other Catholic and evangelical organizations had already filed lawsuits challenging the mandate, but those cases are still pending.

A few more words would have helped, of course, but that’s a start. The Washington Post, meanwhile, keeps the focus on the Catholics while — if the reader chases a few hyperlinks in the coverage — it is possible to learn that other “conservative groups” are involved.

More than a dozen Catholic bishops — including Washington’s — sued the Obama administration on Monday, ratcheting up the standoff between church officials and the White House over a government mandate requiring employers to provide contraception coverage.

Catholic bishops were already leading the fight against the mandate, which requires most religious organizations to provide the coverage, although houses of worship are exempt. Other conservative religious organizations had filed lawsuits this year. But Monday’s 12 lawsuits on behalf of 43 separate institutions involved only Catholics and for the first time included 13 dioceses — the seats of the bishops themselves.

Might any of those “conservative groups” have branches in Washington, D.C., or this powerful region? Who knows.

Meanwhile, it was that quest for solid local angles that helped one of the nation’s top religion writers — Ann Rodgers, in The Pittsburgh Post Gazette — find her way to the very details that other journalists will need to locate for their readers. She also notes that the legal team behind the new lawsuits is, to say the least, a rather important one:

The global law firm Jones Day is representing all 43 plaintiffs at no charge. … The lawsuits seek exemptions from the provisions of the law to which the religious organizations object and a permanent injunction barring government enforcement of those provisions. Until this is resolved, the lawsuit said, “Plaintiffs are uncertain as to their rights and duties in planning, negotiating, and/or implementing their group health insurance plans, their hiring and retention programs, and their social, educational, and charitable programs and ministries.”

Catholic Charities of Pittsburgh and the Catholic Cemeteries Association joined the diocese as plaintiffs. Other plaintiffs from the region are the Diocese of Erie and the Franciscan University of Steubenville. The University of Notre Dame and the Catholic University of America are among other prominent plaintiffs. Twelve suits were filed.

Monday’s litigation blitz doubles the number of lawsuits over the contraceptive rule to 24. Geneva College, an evangelical Protestant school in Beaver falls, filed a similar suit in February. Although it has no moral qualms about standard contraception, it objected to required coverage for morning-after drugs. A statement last month from 18 religious leaders from southwestern Pennsylvania, some from traditions that support public access to contraception and abortion, cited broad religious liberty concerns in opposing the mandate.

That wasn’t all that hard, was it?

Now, if there are major regional news hooks in this story for a journalist in Pittsburgh, might this also be the case in places such as Los Angeles, Washington, New York City, Chicago, Dallas, Denver, etc., etc.?

Just asking. If you see stories that do find the local and-or non-Catholic angles, please let us know in the comments section.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • Bill

    Laurie Goodstein’s piece in the NYT today continued to call it an issue of contraceptive coverage.

  • Susan

    Just my opinion — but the focus on Catholics is due to the voting pattern that Roman Catholics have had. I believe that there is a concern on the part of most journalists that enough Catholics will alter their traditional voting patterns (or just not vote)causing Obama not to be re-elected and/or the hope that a critical number of Catholics can be persuaded to ignore the concerns of their bishops and help re-elect Obama. At this time, no other religion has the numbers and the voting pattern that is likely to make that kind of difference. So, you will see a constant stream of stories by journalists to shape the story to fit the desired outcome …. re-elect Obama. The interesting thing is how blatant and obvious this pattern is becoming and how easy it is to discuss this trend with Catholics who were not critical readers of news or just not interested. Journalism is undermining itself … sadly.

  • Ben

    Can someone point me to non-biased sources on the definition of abortifacient? It seems like this disagreement over whether this is about more than contraception boils down to a disagreement over whether pregnancy occurs at fertilization or implantation, and thereby whether preventing implantation is an abortion — is that a correct understanding of the disagreement?

  • Mollie


    I have been looking for something similar and will let you know if I find it. I do know, at this point, having spoken to folks on both side of the issue, that the fight isn’t over the definition of abortifacient, per se. The fight is over the definition of pregnancy. In recent years or even going back a few decades, some people have updated the definition so that pregnancy begins not when the egg is fertilized by the sperm but, rather, when that fertilized egg implants into the wall of the uterus.

    According to WebMd, “at the moment of fertilization, the genetic makeup is complete, including the sex of the infant.”

    While some people say that drugs taken at this point to destroy that fertilized egg are not an abortifacient, since it hasn’t implanted into the wall of the uterus yet, you can see where Christians with more traditional views on sanctity of human life issues might differ.

    Anyway, after fertilization occurs, the fertilized egg begins dividing rapidly, growing into many cells. It leaves the fallopian tube and enters the uterus three to four days after fertilization.

    After entering the uterus, the fertilized egg attaches to the wall of the uterus (or “implantation”). Cells continue to divide, and so on and so forth.

    For those who have begun defining pregnancy at this stage or at a later stage, that’s when they would call drugs that destroy the life in question an abortifacient.

    Important to note that this is an important language issue to nail down not only for the Catholic Church. There are many church bodies with no doctrinal objections to contraception, for instance, that are opposed to this mandate because it covers drugs that destroy fertilized eggs.

    It’s certainly clunkier to mention that abortion drugs, sterilization, (and, for that matter, religious freedom), but the contraception shorthand is not accurate for those who object on additional or other grounds.

  • Ben

    Thanks, Mollie. Would best practice then be to include that church groups are objecting to *what they consider* abortion-inducing drugs, but what the government says are contraceptives. Or something way less clunky. In other words, many mainstream accounts don’t even mention that those groups who are objecting view some of the drugs as abortion-inducing — that’s bad. But accounts that do include that detail but don’t qualify it as a contested definition are also bad.

  • tmatt


    In other words, at the very least this is a doctrinal matter.

    Thus, it is another layer in which religious liberty is at the heart of the discussion. The government is saying the religious institutions must live according to the government’s approved doctrine, not their own.

    Courts tend to avoid having a state-approved doctrine.

  • Ben

    Terry — There might be a third group, which is the medical establishment. Their definition might hold the most sway in court.Does anyone know what their definition of pregnancy is by the way?

  • tmatt

    No, Ben, you cannot settle issues of ensoulment and personhood in a lab. This is one of the reasons that Jimmy Carter always used to insist that abortion was a church-state issue, first and foremost.

    You are missing the point. Journalists need to know that the courts have historically refused to force religious believers to violate their consciences and doctrines.

  • Mark C.

    Tmatt, maybe I’m reading your various comments on the issue wrongly, but it seems to me that you are suggesting that the characterization that this is about birth control is wrong and that it should be characterized only as a religious freedom issue. But why this either/or approach rather than a both/and. The presenting issue here is precisely requirements of health insurance to cover birth control. Why take the framing of the issue by Roman Catholic bishops and others as a religious freedom issue at face value? Might it not be a deliberate choice knowing that such an argument might “sell” while direct opposition to birth control coverage might get little millage given that not only most Americans, but even most Catholics in this country, aren’t really with them on contraception?

    To the extent that this is a religious freedom issue, it should be acknowledged it isn’t entirely a clear cut question of the religious freedom of church related institutions against the government. It must be understood in a context of conflicts of rights. We must also consider the freedoms (yes, religious, but also other freedoms) of the employees of these institutions, many of whom are not Catholic and do not work at such institutions for their own religious reasons. It is quite possible to see this not as a matter of religious practice, but as a matter of employment and insurance law. The claim that coverage content impinges not the church-related institution’s religious freedom, it seems to me, is predicated on the notion that the insurance coverage belongs to the institution and the employee simply has access to it. But this isn’t the institution’s insurance, it is part of the compensation package given to employees in exchange for their work. Telling an employee what they can and cannot do with that insurance strikes me as no different than telling an employee what he or she can and cannot do with their salaries (including what they buy, how they invest, or to what causes they may donate to).

    Where I think coverage of the issue has failed, is that it has approached it in an either/or manner, discussed the electoral politics of it, or simply restated the positions of various parties. And when the focus is on freedom of religion, it seems to suggest that such freedom should mean a clear and unfettered path without any compromises or balancing required. While I may have missed something good, most of the coverage has been rather superficial. I’m not sure the critiques here encourage anything other than a change in direction on superficial coverage.

  • Mark C.

    “Journalists need to know that the courts have historically refused to force religious believers to violate their consciences and doctrines.”

    But that’s not really true. There are plenty of cases where religious believers must abide by laws even despite their religious doctrines and practices. There is the US Supreme Court case of Employment Division v. Smith as one example. Or consider the parents who are tried on various charges when the fail to provide adequate medical care for their children when they follow their religious beliefs favoring prayer and faith over medical intervention. Or note that a religious objection to war does not allow one to deduct the portion of their taxes that would pay for the military. There are plenty of cases where the courts do give great leeway for conscience and religious belief and practice, as it should be. The courts attempt to balance legitimate concerns. They haven’t always balanced well, falling off into ditches on both sides of that road. But it is always a matter of balancing conflicting rights and interests.

  • Chris

    The medical definition of pregnancy is the presence of a fertilized egg within a female’s body. That includes the period after fertilization, but before implantation. An ectopic pregnancy, in which implantation is outside the uterine cavity, is still a pregnancy.

  • AuthenticBioethics

    If the employer buys all or part of the insurance on behalf of the employee, then the employer’s ethical standards have importance and must be respected. If the employer says instead, “here’s extra salary, go buy your own health insurance,” then there would be no argument of an infringement on religious freedom. But as it is, the employer is a purchaser of insurance in this case. And in any case, why should the government outlaw health insurance that doesn’t cover objectionable products and procedures? Why on earth should these particular products and services be covered with no co-pay, when vital, life-extending drugs (think antihypertensives and heart drugs generally, anti-diabetics, cancer drugs, antibiotics, and countless others) require large co-pays? Seems discriminatory at any rate.

  • tmatt

    MARK C:

    Oh, it’s both-and — no doubt about it. I am sorry not to have been clearer in this particular post (out of the many I have written on this topic).

    The MSM has been framing it, however, as essentially a political fight over birth control. It’s hard to avoid that kind of frame, while providing an accurate account of a debate between two strong points of view.

    You also, in your second item, hit the nail on the head.

    Courts have been willing to step in when religions are involved in fraud, profit and clear threat to life and health (the latter is VERY hard to pin down when it comes to setting limits).

    This case certainly does not appear to address a need that is that extreme, since no one doubts the easy accessibility of birth control to the vast majority of Americans.

    But stop and think about this logically: If this is truly an issue about birth control, why is the White House facing such strong opposition from so many groups that — unlike traditional Catholic institutions — do not reject birth control?

  • AuthenticBioethics

    The MSM has been framing it, however, as essentially a political fight over birth control. It’s hard to avoid that kind of frame, while providing an accurate account of a debate between two strong points of view.

    That is, if they even cover it at all. What do you think of this:

  • http://!)! Passing By

    Fort Worth Roman Catholic Diocese sues over health insurance rule was the lead headline in the Fort Worth Star-Telegram today. My read is that the story does a good job of being fair, failing only with a relatively irrelevant bit of data at the end.

    In a September 2009 survey conducted on behalf of the group, contraception was supported by 63 percent of respondents. The survey, with a 3.2-percentage-point margin of error, was based on interviews with 923 Catholics who are registered voters.

    As always, of which “Catholics” do we speak? What if the subject was abortion or sterilization (almost silent in coverage of the subject)?

    Like AuthenticBioethics, I wonder what it is about contraception, abortion, and sterilization that is so important that it has to be universally available (no self-insurance to evade the mandate) at no cost to the insured? As I grow older, I take more meds, all of which have a co-pay. Canada’s universal insurance program doesn’t cover these services (so I’m told by Canadians). Why is the Obama Administration so hell-bent (couldn’t resist) on forcing this trinity on Christian Americans? And finally, do we really want to have the government involved in sterliization again?

    This is all I found on the Dallas Morning News website and I didn’t see the print edition.

  • Passing By

    Forgot to say: Ann Rodgers really is the bomb!

  • SouthCoast

    “The MSM has been framing it, however, as essentially a political fight over birth control. It’s hard to avoid that kind of frame, while providing an accurate account of a debate between two strong points of view.” In order to begin to understand the religious objection to the mandate, consider if HHS had ordered that, rather than birth control, assisted suicide be offered.

  • Julia

    traditions that support public access to contraception and abortion

    I keep seeing phrases like this.
    What the heck does public access mean?

    From everything I have ever been taught or read, the Catholic position on abortion doesn’t involve “pregnancy” or “ensoulment” or “personhood”. It’s a matter of new life which begins as soon as fertilization occurs. The Church is also concerned about fertilized cells in a petri dish AKA IVP.

    People seem to be hung up on “pregnancy” because pro-choice folks and others often talk about “ending a pregnancy” or “continuing a pregnancy” or even “losing a pregnancy”.

    Mark C:

    When there is a law suit each side characterizes the issues to highlight their theory of the case. Often how the court decides to characterize the issues is dispositive of the issues. So – when a reporter is writing about a court case he or she should take care to let each side describe how they see the issues. Otherwise, the reporter is taking sides and/or pre-judging the case.

  • Bill

    Julia asks, “What the heck does public access mean?”

    That gets to the heart to of it. Contraceptives could hardly be more publicly accessible. And the fight is about far more than just who pays for them. For the administration it’s about political power. For the RC Church and those who support it’s position, it’s about freedom of religion and conscience.

  • Julia

    Can anybody verify if the administration’s proposed accommodation included the insurance company providing free morning after pills and free surgical sterilizations, as well as free birth control pills?

  • Kristen

    I find it disconcerting that even here, you guys are splitting hairs so as to understand the Church’s opposition to contraception, when in fact, these lawsuits are about religious freedom, as it specifically relates to commerce. Religious organizations are being forced to purchase something that they find morally objectionable. I guess I am glad that you are trying to understand the Church’s doctrines better, but that is not the point of the lawsuits. The Church is not seeking to ban contraceptives, nor is it seeking to ensure that they are not available to their employees. They simply do not wish to PAY for them.

    Yes, a religious freedom issue, but also a commerce issue. I read the first few pages of the NY lawsuit – it clearly states there that this is not about the relative merits of contraception, but about upholding the right of a religious institution to not be forced to purchase something that it believes is morally wrong.

    Because the Catholic Church has specific moral prohibitions on the topic of contraception, they have particular legal standing in this case because they are able to point to their specific beliefs in such a way that makes clear that the proposed HHS mandates are against their religious beliefs.

    For many evangelical or Protestant denominations, such clarity about what is “ok” and not “ok” are often not codified and may vary, pastor to pastor. So that explains why there are fewer evangelical and other bodies who might be legally “able” to sue. Plaintiffs have to prove that in fact, this does violate their consciences.

    Interesting aside, note that when Archbishop Broglio of the Archdiocese of Military Services came out and prohibited Catholic clergy from presiding over same-sex unions, it was precisely so that Catholic military chaplains would be able to clearly state that their endorsing agent (the religious body to which they belong) prohibits them from presiding over same-sex unions. Other wise, they would be required to do so as a part of their duties as military chaplains after the repeal of the “don’t ask, don’t tell” rules.