Thirty lawsuits are targeting a U.S. Department of Health and Human Services mandate that would require most religious employers to provide free contraceptive coverage.
More than 100 plaintiffs — over half of them Catholic institutions — have filed the lawsuits against the mandate, blasting it as an infringement on religious liberty.
Catholic leaders nationwide have warned that the Obama administration’s mandate would cripple or shut down many Catholic institutions altogether.
The controversy erupted more than a year ago, when the administration announced that — as part of the Affordable Care Act passed in 2010 — contraception, abortion-inducing drugs and sterilization would be considered “preventive services” to be provided at no cost to recipients.
Eternal Word Television Network, represented by The Becket Fund for Religious Liberty, was the first to file suit Feb. 9 after the final HHS rules were published in January.
Though relatively unknown, the mandate would grant the government power to crush organizations and institutions with fines for non-compliance, according to Michael Warsaw, president and CEO of EWTN.
A faith-based organization like EWTN, and even private businesses that refuse to include contraception, abortion-inducing drugs and sterilization in their health plans have two options, Warsaw said.
The employer can drop its health care plan altogether or the employer can refuse to include the morally objectionable services and continue to offer its health plan to employees. In either case, the government will fine the employer.
If an employer drops their plan, they face a fine of $2,000 per employee per year.
“In the case of EWTN, this would amount to over $600,000 in the first year or we would be leaving our employees and their families with no health care coverage, essentially forcing them onto the public exchanges where their premiums will subsidize a full range of immoral procedures,” Warsaw said.
So what about offering the health plan without the objectionable services? If an employer chooses this route, the government can fine the employer $100 per day for each employee. “For EWTN this would amount to approximately $12,400,000 in the first year,” Warsaw said. “No organization can survive the imposition of those kinds of penalties.”
The University of Notre Dame has also filed suit and stands to incur penalties of $9 million annually. Rick Garnett, a Notre Dame law professor, is not formally involved in the suit but spoke to The Catholic Sun about the plethora of lawsuits against the mandate.
A few of the cases, he said, have been tossed out because the courts said the plaintiffs are not yet required to pay the fines. “They’re not saying they disagree with the religious freedom claim, they’re just saying that it’s not timely yet,” Garnett said. “I think those courts are probably wrong. Usually in administrative law, if you’re preparing for a regulation in effect, that counts — that’s enough to give you standing.”
Large institutions such as Notre Dame have to budget and set aside money for the fines and those that are challenging the mandate are not going to have any difficulty showing that there’s a burden on their conscience as well as a financial burden, Garnett said.
“The question in the lawsuit will just be whether or not a court thinks that providing free contraception is a compelling state interest and whether this is the least restrictive way to do it,” Garnett said. “And since there’s a very easy way the government could achieve this same goal [by] just paying for it itself, it seems to me that they’re going to have an awfully hard time explaining why it’s necessary to make religious institutions do something that’s a burden on their religious exercise.”
While some of the plaintiffs are institutions of higher learning such as Franciscan University of Steubenville and Ave Maria University, entire dioceses have also filed suit. Among them are the Diocese of Dallas, the Archdiocese of Washington and the Diocese of Pittsburg.
Catholic Charities organizations in the District of Columbia, Pittsburgh, Fort Wayne-South Bend and several other cities have similarly filed suit. Legatus, a national organization of Catholic business leaders, filed its lawsuit in May and is represented by the Michigan-based Thomas More Law Center.
Bishop Thomas J. Olmsted characterized the mandate as a threat to religious liberty, but he went a step further.
“The HHS mandate continues to be a grave threat to the religious liberty of institutions and individuals across our country, forcing us to violate our deepest convictions of conscience as Catholics or other persons of faith, or to face penalties that hardly any of us could withstand for any significant length of time,” he said. “This not only will harm the Church herself and other religious bodies; it will also harm all the many people who are served by our programs of charity and outreach to the poor and vulnerable.”
Businesses face closure
The mandate similarly has business owners up in arms since it requires companies with more than 50 employees to comply or face severe penalties.
Ric Serrano, president of Serrano’s, which operates seven East Valley Mexican food restaurants and a separate establishment named Brunchies, said his firm has 350 employees. The fines, Serrano said, could ruin him.
“It truly has the ability to put us out of business,” he said. The company tried to figure out a way it could trim staff at each location to slide under the requirement, but it wasn’t possible.
“The hours that we’re open per day requires enough staff and there was no way to slice it underneath that number,” Serrano said. “If this continues to march down the conveyor belt that it’s on, we’re faced with a possibility of closing.”
Ron Johnson, executive director of the Arizona Catholic Conference, the legislative arm of the three Arizona Catholic dioceses, lamented that so few Americans are aware of the fines’ devastating capability.
“The fines are extremely draconian in nature and could probably put almost any organization out of business,” Johnson said. “You’re talking millions of dollars in fines against religious institutions, other charitable institutions and even private business owners who just simply don’t want to be asked to violate their faith when they disagree with the federal government about killing babies or providing contraceptives.”
Religious liberty in peril
Alan Sears, president, CEO and general counsel for the Alliance Defending Freedom, said religious liberty is at stake in the controversy. He’s urging people to attend one of the Stand Up for Religious Freedom rallies that will be held in more than 100 cities on Oct. 20. More than 300 cities and 125,000 individuals were involved in rallies in March and June.
“Never in American history has religious liberty been in such peril. It is essential that people understand what the issues are, what is at stake, and what can be done,” Sears said.
Even before the founding of the United States, people fled here to escape religious tyranny. “But in an unprecedented and alien manner the government is now telling us who the faithful are, who is faithful enough, and what the faithful are allowed to do and not do in major areas that are beyond the appropriate scope of governmental authority,” Sears said.
Denver-based Hercules Industries, with 265 employees, scored a victory last month when U.S. District Court Judge John Kane granted a preliminary injunction that stated that the harm to the government “pales in comparison to the possible infringement upon the plaintiffs’ constitutional and statutory rights.” Hercules Industries, owned by a Catholic family and represented by the Alliance Defending Freedom, Kane wrote, faced “imminent, irreparable harm.”
Not all of the plaintiffs that have lawsuits pending against the mandate are Catholic. The Alliance Defending Freedom is representing Grace College and Seminary, Biola University, Louisiana College and Geneva College. The Becket Fund is representing Hobby Lobby, owned by an Evangelical family. Hobby Lobby runs 500 stores in 41 states with 22,500 employees. The Oklahoma outfit faces fines of $1.3 million a day.
