The Church and the Mandate
The strategic situation after a year, and the terrain ahead


George Weigel

The administration being unwilling to yield, the bishops reaffirmed their united opposition to the mandate at a meeting of their conference’s administrative board in March and again at a meeting of the full conference in June. The bishops also sponsored a “Fortnight for Freedom,” which sparked religious-freedom rallies around the country and culminated on Independence Day in a nationally televised Mass attended by an overflow congregation of more than 5,000 at Washington’s Basilica of the National Shrine of the Immaculate Conception. Throughout the summer and fall, individual bishops and state Catholic conferences underscored the primary importance of religious freedom as an issue in the 2012 election campaign. Exit polls on November 6 indicated that the bishops’ case was heard by a clear majority of those Catholics who regularly attend Mass.

Had Obamacare been deemed unconstitutional by the U.S. Supreme Court, the immediate crisis for both Catholic institutions and conscientious Catholic employers would have abated, as the HHS mandate and other implementing regulations would have been rendered moot. But as no such outcome was assured, dozens of plaintiffs, including both Catholics and Protestants, filed suit specifically against the mandate in federal courts across the country. As of mid-December 2012, there are more than 110 such plaintiffs, including colleges, universities, charities, voluntary associations, businesses, and dioceses. Over 40 such suits are now being litigated.

The plaintiffs in these suits have argued that the mandate violates the 1993 Religious Freedom Restoration Act (RFRA), which was passed by overwhelming majorities in both houses of Congress and signed into law by President Bill Clinton. According to RFRA, the U.S. government may substantially burden the free exercise of religion only if it is clear that such burdening is the “least restrictive means of furthering [a] compelling governmental interest.” Given the multiple ways in which the government already “furthers” its stated interest in facilitating the distribution of contraceptives and abortifacient drugs and in providing sterilizations, it seems clear that the mandate is a wholly unnecessary burden on employers who have objections to providing such services on the grounds of religious conviction.

As I write, plaintiffs have obtained preliminary injunctive relief against the mandate in four cases. Only two adverse rulings on the merits have been handed down; both are oddly argued, and one of them is currently being appealed in the Tenth Circuit. Moreover, each of the six cases in which decisions have been rendered involves a for-profit business, a class of litigants whose religious-liberty claims are regarded skeptically in some quarters. Thus it seems not unreasonable to expect similar anti-mandate decisions on behalf of non-profit employers, e.g., religious colleges and universities, religious charities, religious social-service agencies, religious health-care facilities, and dioceses.

The course of litigation to date suggests that a Supreme Court decision on the HHS mandate will not require another tortuous revisiting of the First Amendment. The mandate has very little chance of clearing the high bar set by RFRA for burdening the free exercise of religion, which is the legal question at the forefront of the mandate lawsuits. Thus it seems eminently reasonable to expect that the legal challenges to the mandate will ultimately be vindicated by a Supreme Court that, in January 2012, upheld the “ministerial exemption” from equal-employment-opportunity law in a 9 to 0 decision in which the Obama administration’s two Court nominees joined. 

A year into this contest, the Catholic Church in the United States has every reason to think it is winning the battle for religious freedom that it was compelled to engage when the HHS mandate was finalized. Yet there will be a substantial period of time — probably a year and a half, perhaps longer — before the final legal decision is rendered. Meanwhile, the mandate went into force on August 1, 2012 (for any health-insurance-plan renewal initiated after that date), although many Catholic institutions have been able to take advantage of a year-long “safe harbor” (i.e., non-compliance) period conceded by the administration — a period described by Cardinal Dolan as “a year in which we’re supposed to figure out how to violate our consciences” and a concession obviously intended to punt the mandate issue down the field, past the 2012 election. With the safe harbor set to expire on August 1, 2013, what should be the Church’s strategic approach between now and then — between the impending full implementation of the mandate after the safe-harbor period ends and what can reasonably be expected to be a final victory in the Supreme Court?