L. Martin Nussbaum has an interesting piece in National Review Online, highlighting the president’s obfuscations about the HHS mandate.
President Obama spoke to women on the 8th of August in Colorado. He touted the mandate that made contraception more available to women, but failed to mention abortion-inducing drugs that are a part of the mandate. He also said,
Listen, we recognize that many people have strongly held religious views on contraception — which is why we made sure that churches and other houses of worship — they don’t have to provide it. They don’t have to pay for it. We worked with the Catholic hospitals and universities to find a solution that protects both religious liberty and a woman’s health.
Hmmm….I wonder why the president thinks that 43 Catholic institutions sued his administration on the 21st of May? Could it be because they don’t have to pay for contraceptives? As Nussbaum notes,
The plaintiffs in these lawsuits are diverse; they include archdioceses, dioceses, schools, hospitals, clinics, a nursing home, a publishing company, and the Michigan Catholic Conference. The plaintiffs and their counsel understood what was at stake. If the government could require them to provide their employees with abortifacients, it could require them to provide surgical abortions as well.
What about Obama’s claim to have worked closely with Catholic institutions to “find a solution?” As Nussbaum notes,
Some of the plaintiffs had been misled by President Obama himself. The University of Notre Dame, for example, opened itself to substantial criticism when it invited President Obama to speak at its commencement exercises and awarded him an honorary doctorate in May 2009. … During his Notre Dame speech, the president promised that, notwithstanding his support of abortion rights, he intended to “honor the conscience of those who disagree with abortion, and draft a sensible conscience clause.” This, he said, is one thing “we can do.”
Others were also misled by Obama.
Similarly, in November 2011, Archbishop Timothy Dolan of New York, the president of the United States Conference of Catholic Bishops, met with President Obama in the Oval Office to discuss the HHS mandate. Dolan told the Wall Street Journal in March that, at the end of the meeting, he turned to the president and said, “I’ve heard you say, first of all, that you have immense regard for the work of the Catholic Church in the United States in health care, education, and charity. . . . I have heard you say that you are not going to let the administration do anything to impede that work and . . . that you take the protection of the rights of conscience with the utmost seriousness. . . . Does that accurately sum up our conversation?” The president replied, “You bet it does.” Dolan publicly characterized this meeting as productive and “extraordinarily friendly.”
Cardinal Dolan thought that this president would protect conscience rights.
In his interview with the Wall Street Journal, Cardinal Dolan also explained what happened next. “So you can imagine the chagrin, when [the president] called me at the end of January to say that the mandates remain in place and that there would be no substantive change, and that the only thing that he could offer me was that we would have until August. . . . I said, ‘Mr. President, I appreciate the call. Are you saying now that we have until August to introduce to you continual concerns that might trigger a substantive mitigation in these mandates?’ He said, ‘No, the mandates remain. We’re more or less giving you this time to find out how you’re going to be able to comply.’” Cardinal Dolan later said, “The president is saying we have a year to figure out how to violate our consciences.”
The Catholic and Protestant institutions suing the government are basing much of their argument on the Religious Freedom Restoration Act of 1993. The RFRA passed the House unanimously and the Senate with 97 votes; it was signed into law by President Clinton. What is RFRA?
RFRA prevents the government from substantially burdening the religious freedom of any person or entity unless the government has a “compelling” interest in doing so and the government’s interest is advanced through the means that are the “least restrictive” of religious freedom. It almost certainly requires exemption for the plaintiffs and similarly situated entities and individuals.
Why does the HHS mandate violate RFRA?
First, there can be little doubt that requiring employers to arrange for insurance that provides benefits that they find morally objectionable constitutes a “substantial burden” on their religious exercise. The Obama administration effectively conceded this by including in the health-care law a religious exemption for employers in the Anabaptist tradition (primarily Amish and Mennonite); an exemption for Medi-Share, an Evangelical Protestant cost-sharing cooperative; and a narrow religious exemption for churches.
Second, under standard RFRA analysis as articulated in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal (2006), a court assesses whether the government’s interest is compelling in relation to its need to force a particular organization or person to comply with a law, not the value of the law’s overall objective (in this case, to increase the availability of abortifacients and contraceptives). This will make things difficult for the government, given that it has exempted plenty of particular organizations already: other religions as described in the previous paragraph, employers with “grandfathered” plans, and employers with fewer than 50 employees. All told, the exemptions the administration has given affect millions of employees. Why is it necessary to force the plaintiffs in these lawsuits to provide contraception, but not necessary to force millions of other employers to do so?
As noted previously in this blog, the Newland v Sebelius case, where the federal judge granted an injuction, directing the HHS not to apply the mandate against Hercules Industries, was argued primarily under RFRA. Judge Kane found, in part:
A law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest prohibited. . . . “The government has exempted over 190 million health plan participants and beneficiaries from the preventive care coverage mandate; this massive exemption completely undermines any compelling [governmental] interest in applying the preventive care coverage mandate to [Hercules Industries].
If the HHS mandate is so clearly contrary to RFRA, why did the administration start this fight?