On August 8, President Obama spoke to an audience of women in Denver. They provided the perfect backdrop for his charge that Governor Romney is waging a “war on women.” The president spoke of how Obamacare has made “contraceptives” even more available than they were before — though he did not mention that “contraceptives,” as he defines them, include medications that do not prevent conception but instead cause the death of new life after it is formed. He also claimed the following: “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.”
The president could not have forgotten that on May 21 there began a confrontation between church and state unlike any in American history. Forty-three Catholic institutions filed twelve lawsuits in twelve federal courts seeking religious exemption from a Health and Human Services regulation implementing Obamacare. This regulation requires employers to provide their employees with medical insurance that includes coverage for abortion-inducing drugs (known as “abortifacients”), contraceptives, and sterilization. Such coverage is contrary to Catholic Church teaching. The abortifacient requirement is also contrary to the teachings of many Protestant and Jewish organizations.
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.
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. The university had invited numerous presidents to deliver commencement addresses before — dating back to Dwight Eisenhower — but never before had it invited a president so supportive of abortion rights. President Obama even supports a right to partial-birth abortion. 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.”
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.”
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 twelve lawsuits filed by Catholic institutions in May followed eleven lawsuits filed previously, beginning in November 2011. (Those plaintiffs included various Catholic organizations and businesses, numerous attorneys general, and four Protestant colleges.) While these plaintiffs have invoked a number of constitutional protections and federal statutes, the leading claim in most cases is based upon the Religious Freedom Restoration Act of 1993 (RFRA). This federal statute passed the House of Representatives unanimously and the United States Senate with 97 votes. President Clinton signed it into law.
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.
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?
The administration is delaying most of these cases until after the election by making “ripeness arguments” — that is, because the administration has postponed implementation requirements for most ministries, it can argue that there is no current controversy to litigate. Procedural delay, however, was not available in the Hercules Industries case. On July 27, 2012, Judge John Kane of the United States District Court in Denver applied RFRA and issued a preliminary injunction enjoining the implementation of the HHS mandate against Hercules Industries, a for-profit business managed according to the values of its Catholic owners. Judge Kane reasoned, 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].
Accordingly, even if President Obama is reelected, it is quite likely that, some time after the election, there will begin a series of decisions favorable to the various plaintiffs, including awards of attorney’s fees against the government that RFRA provides to prevailing plaintiffs. This raises the question as to why the administration has picked this fight it is almost sure to lose.
— L. Martin Nussbaum is a Colorado Springs lawyer whose practice focuses on First Amendment and religious-institution legal issues.