All of a Sudden, the New York Times Notices the HHS Mandate Lawsuits

Based on this report published yesterday, you would think that they just discovered the 40+ lawsuits that have been filed and the injunctions that have been handed down thus far. How else to explain the title of the piece? A Flood of Suits Fights Coverage of Birth Control.

Golly. Who knew?

I’ll skip most of the article, and skip right to the interesting parts.

New suits are filed nearly weekly.


“This is highly likely to end up at the Supreme Court,” said Douglas Laycock, a law professor at the University of Virginia and one of the country’s top scholars on church-state conflicts. “There are so many cases, and we are already getting strong disagreements among the circuit courts.”

President Obama’s health care law, known as the Affordable Care Act, was the most fought-over piece of legislation in his first term and was the focus of a highly contentious Supreme Court decision last year that found it to be constitutional.

But a provision requiring the full coverage of contraception remains a matter of fierce controversy. The law says that companies must fully cover all “contraceptive methods and sterilization procedures” approved by the Food and Drug Administration, including “morning-after pills” and intrauterine devices whose effects some contend are akin to abortion.

And here is where you think you’ve stepped back in time. What follows next reads like what should have been reported a year ago.

As applied by the Health and Human Services Department, the law offers an exemption for “religious employers,” meaning those who meet a four-part test: that their purpose is to inculcate religious values, that they primarily employ and serve people who share their religious tenets, and that they are nonprofit groups under federal tax law.

But many institutions, including religious schools and colleges, do not meet those criteria because they employ and teach members of other religions and have a broader purpose than inculcating religious values.

Yes, Gotham readers, because the standard is too narrow. So narrow that if you aren’t serving those of your own faith, or actively proselytizing others, you don’t qualify as exempt. Helping the sick and the poor, or educating the masses? Not exempt.

“We represent a Catholic college founded by Benedictine monks,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, which has brought a number of the cases to court. “They don’t qualify as a house of worship and don’t turn away people in hiring or as students because they are not Catholic.”

In that case, involving Belmont Abbey College in North Carolina, a federal appeals court panel in Washington told the college last month that it could hold off on complying with the law while the federal government works on a promised exemption for religiously-affiliated institutions. The court told the government that it wanted an update by mid-February.

Defenders of the provision say employers may not be permitted to impose their views on employees, especially when something so central as health care is concerned.

“Ninety-nine percent of women use contraceptives at some time in their lives,” said Judy Waxman, a vice president of the National Women’s Law Center, which filed a brief supporting the government in one of the cases. “There is a strong and legitimate government interest because it affects the health of women and babies.”

She added, referring to the Centers for Disease Control and Prevention, “Contraception was declared by the C.D.C. to be one of the 10 greatest public health achievements of the 20th century.”

I can’t understand why the simple solution of letting beneficiaries decide on their coverage themselves isn’t floated. But what do I know?

Officials at the Justice Department and the Health and Human Services Department declined to comment, saying the cases were pending.

A compromise for religious institutions may be worked out. The government hopes that by placing the burden on insurance companies rather than on the organizations, the objections will be overcome. Even more challenging cases involve private companies run by people who reject all or many forms of contraception.

Skipping ahead, the writer notices something we noticed a long time ago. That the HHS Mandate strikes at the heart of freedom. Well, not in those words, exactly.

These cases pit the First Amendment and a religious liberty law against the central domestic policy of the Obama administration, likely affecting many tens of thousands of employees. The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and much attention has been focused in the past two decades on the issue of “free exercise,” meaning preventing governmental interference with religious practices.

Free-exercise cases in recent years have been about the practices of small groups — the use of a hallucinogen by a religious group, for example — rather than something as central as the Affordable Care Act.

The cases also test the contours of a 1993 law known as the Religious Freedom Restoration Act. The law prohibits the federal government from imposing a “substantial burden” on any religious practice without a “compelling state interest.” The burden must also be the least restrictive possible.

Professor Laycock of the University of Virginia said: “The burden is clear especially for religious organizations, which ought to be able to run themselves in accordance with their religious teachings. They are being asked to pay for medications they view as evil.” He added that because the health care law had many exceptions, including for very small companies, the government might find it hard to convince the courts that contraception coverage is, in fact, a compelling interest.

But William Marshall, a First Amendment scholar at the University of North Carolina Law School, said the Supreme Court asserted in a 1990 opinion by Justice Antonin Scalia that religious groups had a big burden in overcoming “a valid and neutral law of general applicability.”

“You could have an objection of conscience to anything the government wants you to do — pay taxes because they will go to war or to capital punishment, or having your picture on your driver’s license,” Mr. Marshall said. “The court has made clear that religious groups have no broad right for such exceptions.”

Mr. Laycock said that while judges are supposed to be neutral, they too can get caught up in the culture wars. Judges sympathetic to women’s sexual autonomy would probably come down on one side of the dispute, and those more concerned with religious liberty on the other, he said.

“There is a lot of political freight on this issue,” he said.

That may be the understatement of the year. Read the whole piece.

  • Jess

    Hi! Thanks for this post! I just have a quick question:

    I’m currently taking a religion course at a public university and one of our class assignments is to select a recent news article about some issue related to religion and then have the class read it and help facilitate a discussion surrounding the issue. I REALLY want to pick an article on the HHS mandate, but I’m struggling to pick one that will give a good representation of the struggles surrounding this issue. I’ve become really well informed as a young Catholic, but I want to pick an article that will be good for other college students (mostly non-Catholics) who are most likely completely oblivious to this topic. I’ve been trying to see if perhaps there’s an article written by Helen Alvare on the subject (I heard her speak about it and she was incredible) but then I thought perhaps this NYTimes article that you’re referencing might be good, since it’s obviously mainstream…

    Any suggestions would be greatly appreciated :) and thanks so much for a wonderful post!

    In Christ,

  • Julie

    With these arguments, don’t forget the individual’s right to free exercise as well. We should not be only talking about religious institutions, but an individual’s right to run their business in a manner that gels with their beliefs. It’s what Fr. Neuhaus talked about when he wrote on religion in the public square.

    • Kristen inDallas

      Not to mention any individual employee’s right to not USE a healthcare plan that covers contraception. Even if my employers choose to cover it, or particularly if I’m not employed or self-employed and purchacing my own insurance (which affects no one but me and my family btw), shouldn’t there be an option to forego that part of the coverage?

  • Anna

    What we seem to be neglecting in the very poilarized debate on this issue is that the patient will still be the one to choose what services she does or does not opt into. If an individual is opposed to birth control then she will not use it. There is no need for an exemption. If a woman does want to use birth control, how can it conceivably be within the rights of her employer to declare that unavailable. That seems like just as dangerous a precedent as allowing the exemption.
    Some religions are opposed to blood transfusions, but it is hardly appropriate for them to demand exemptions for that. Some more extreme religions are opposed to medical intervention altogether. What would this precedent do for them? It is not fair to ask individuals to bear the burdens of their employers’ religious beliefs. It is better for employers to educated and inform, and provide alternatives.

    • Kristen inDallas

      Everytime you go to the grocery store you have to buy chicken. Even if you’re a vegetarian. You don’t have to eat it. You can throw it away if you like but it’s a required part of your government mandated monthly grocery provisions. Sound fair?

      Also members of those “extreme religions” who are opposed to all medical care ARE exempt from the mandates requirement to have health insurance.

    • Connie Rossini

      Anna, how is it limiting a woman’s access to contraception by not forcing her employer to offer coverage for it? Many plans have not covered contraception in the past. Have women been lacking access up until now? Do I lack access to food because I’m not on food stamps? Do I lack access to shelter because neither the government nor an employer is providing it? Do women lack access to surgical abortion, because Obamacare does not currently require employers to cover it? That is where the HHS mandate is leading us. Yeah, I wouldn’t have to have an abortion, even if my health insurance covered it, but I WOULD have to pay for the coverage, which would spread the cost of other women’s abortions out among all those on the plan. The same is true of contraception coverage under this mandate. Both employers and all those on their plan have to share the cost of actions they consider gravely immoral.

      Also, please note that the mandate does not just force coverage for contraception. Some of the drugs covered cause early abortions. Surgical sterilizations are also covered.

      Please let me know if you have evidence of a crisis in access to contraception before this mandate. Somehow I missed it. I was under the impression you could buy it at Walmart very cheaply.
      Faith-based education, Carmelite spirituality

    • MaryS

      Anna, please stop for a minute and consider: Contraceptives are already widely available and very cheap. (Many state programs give them away for free to the poor.) So there is NO COMPELLING REASON to force conscientious objectors (whether employers or the insured, themselves) to pay for other people’s contraceptives.

    • Brian

      You have hit on the reason the ACA is flawed. It does not fix the driver of health insurance inflation, the employer mandate. If health-insurance coverage decisions were between a consumer and the provider (whether the provider is the free market or a single-payer healthcare system), then nobody would be unfairly on the hook for payment of the services. Since employer health benefits first came about, healthcare costs have increased dramatically because the laws of supply and demand don’t apply. The reality is that under the ACA, insurance companies will be able to charge a much larger amount for the coverage than a woman would spend for the same product on an open market, but because that cost is hidden from the woman, she is never in a position to reason out the cost benefits of whether that action should be provided by insurance or paid for at the time of purchase. The ACA wishes to have the piper call the tune, even if he who pays the piper doesn’t want to listen to it.

      What will be interesting to watch, is whether the Court interprets the “Free Exercise” clause to be binding only to religious organizations, or to the individual, as it seems the founding fathers intended. The recent cases involving gun control seem to show that the court has a slight lean toward the restrictions on government are not based on corporate rights, but rather on individual rights. Even in Citizen’s United, the court essentially ruled that the state cannot ban an individual’s right to free speech just because they use a corporation to facilitate that speech. This case is a prime opportunity for the Court to open the free exercise clause much more broadly than the government will appreciate.


  • Elmwood

    I don’t think it will be interpreted as unconstitutional because it doesn’t prohibit the free exercise of religion strictly speaking–people can still go to church and live out their faith. We already pay taxes that force us to pay for things that are contrary to our Catholic formed consciences: Planned Parenthood, unjust-wars, contraception.. etc. What can we do about it? Nothing.

    Why not focus on living out our faith so that Catholics will be universally known to not use contraceptives. Hate to say it, but Obama is pointing out the huge hypocrisy in our faith: most Catholics do not understand or live out the church’s teaching on contraception, mostly because our bishops have been silent on it for the last 50+ years.

    We only now hear about it as a “religious freedom” issue which I think will be hard to win in court. Instead of this being about contraception it is being politicized to get Obama out of office (not that that is a bad thing).

    • Brian

      There is a profound difference between paying taxes that go to things an individual or organization disapprove and forcing individuals and organizations to directly purchase things they disapprove.

      • Elmwood

        Actually, I believe Obamacare was held up as constitutional because it was defined as a “tax”. So I would disagree that there is a profound difference. Justice Roberts certainly would agree. After all, nobody is forcing the employees of these Catholic institutions to have an abortion or use contraceptives. In the end, these people could go to Planned Parenthood and receive publicly subsidized contraceptives anyways.

        • Brian

          However, the court ruled that the Commerce Clause does not allow the government to compel purchase of anything. So, the court actually ruled that the financial penalties for not purchasing insurance were within the government’s rights under fair taxation. In the case of the HHS mandate, the penalties for not providing contraceptives are much greater per employee than if the company had not provided health coverage at all (something on the order of 36x greater). With this being the case, the HHS mandate may very well fall into greater scrutiny than the overall ACA.