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Suing Sebelius

On Friday, the Obama administration announced that a Department of Health and Human Services rule mandating that all health insurance cover contraception and sterilization is final, but will not go into effect for a year (after the presidential election), giving those with conscience objections a year to figure out how to violate their consciences. The Becket Fund for Religious Liberty is representing Belmont Abbey College in its lawsuit against the secretary of HHS over this mandated conscience violation. Hannah Smith, senior counsel there, talks about what happens next.


KATHRYN JEAN LOPEZ: I thought we were just celebrating a major religious-liberty victory. What happened?

HANNAH SMITH: Apparently, the Obama administration did not get the message. In a 9–0 ruling last week in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, all nine justices of the U.S. Supreme Court — including both Obama appointees — rebuked the administration’s cramped view of religious liberty, calling it “extreme,” “remarkable,” and “untenable.” In adopting the Becket Fund’s arguments in favor of the church, the Court rejected the administration’s position that (for purposes of hiring and firing their own leaders) religious groups should be treated like any other social group.

Here we go again, this time in the health-care context.

In the administration’s decision announced Friday, the Department of Health and Human Services (HHS) remarkably refused to expand the exemption from its abortion-drug mandate to include religious colleges, hospitals, and charitable service organizations. Instead, HHS merely extended the deadline for religious groups that do not already fall within the existing narrow exemption so that they will have one more year to contort themselves to comply with this coercive government mandate or drop health-care insurance coverage for their employees altogether and incur a hefty fine.


LOPEZ: What’s so wrong with the administration waiting a year?

SMITH: Merely giving religious groups another year to comply with the offending mandate misses the point entirely. There is no expiration date for the right of conscience. In its statement Friday, HHS explained: “This additional year will allow these organizations more time and flexibility to adapt to this new rule.” As if religious convictions are some pliable veneer that just needs time to bend around governmental policy choices.

The same HHS statement also reassured religious groups that HHS “will continue to work closely with religious groups during this transitional period to discuss their concerns.” This view only underscores the administration’s tone deafness to religious liberty. What could HHS say while “discuss[ing] . . . concerns” that could change the religious convictions at the core of this conflict? Paying for abortion drugs violates the religious beliefs of many religious colleges, universities, charitable service organizations, and hospitals — and that won’t change next year, or any time soon.


LOPEZ: Doesn’t waiting a year lead to more uncertainty for employers?

SMITH: Yes, it does. Religious employers have already been in limbo for several months — since August 2011 — waiting to hear whether the administration would expand the mandate’s exemption. Today’s announcement keeps religious employers in limbo for another year.


LOPEZ: What about the fact that there is an exemption?

SMITH: It’s important to remember just how stingy the exemption really is. The exemption only covers a “religious employer” that is a church (defined under certain tax provisions) that inculcates religious values “as its purpose” and that primarily employs and serves those who share its faith. Many religious organizations — including colleges and universities, charitable service organizations, and hospitals — by HHS’s own admission fail to meet this definition. And those organizations would be forced to choose between covering drugs and services contrary to their religious beliefs and ceasing to offer health-insurance plans to their employees. Without such plans, many religious institutions would be at a serious competitive disadvantage vis-à-vis other employers, perhaps even failing to attract sufficient staff and thus forced to close. And without employer-sponsored health plans, these religious institutions would be forced to pay a hefty annual fine to the government.

Although HHS said that it “remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good,” it’s quite clear that this abortion-drug mandate will force many of these organizations out of providing services to the general public. That should outrage every American.


LOPEZ: And why should Belmont Abbey be allowed to keep basic medical care from its non-Catholic professors?


SMITH: Belmont Abbey believes strongly — as part of its commitment to Catholic education and in accordance with Catholic social teaching — in promoting the well-being and health of its employees and students. That is why Belmont Abbey provides health insurance to its employees and students. But as part of its religious commitment, Belmont Abbey vigilantly ensures that its policies do not cover drugs or services that are inconsistent with its religious faith. Belmont Abbey is not denying basic medical care to its employees. Any employees are free to purchase the preventative services. The issue is whether government can force a religious college to pay for drugs and services that violate its core religious convictions. Moreover, Belmont Abbey employees and students know — when they accept a job or enroll as a student — that they are doing so at a religious institution that takes seriously its faith commitment. They are free to work or study elsewhere.


LOPEZ: Why should students and employees find this mandate outrageous?

SMITH: If the administration enforces this mandate, Belmont Abbey College could be forced to close and all of its employees — including its non-Catholic employees — would be out of a job. William Thierfelder, the president of Belmont Abbey College, has said that the school is “so resolute in our commitment to the teachings of the Catholic Church that there is no possible way we would ever deviate from it, and if it came down to it . . . we would close the school rather than give in.” Many of these religious groups share this resolve. In our current economy, it should outrage every employee at Belmont Abbey College that the government would rather force abortion drugs on a religious school than protect its right to exist and provide jobs for hundreds of employees.


LOPEZ: So what can people who find this outrageous do?

SMITH: They can support the Becket Fund for Religious Liberty that is challenging this unconstitutional abortion-drug mandate in the courts. Donations may be made through our website at

They can also urge their congressmen to support Rep. Jeff Fortenberry’s bill (H.R. 1179, the “Respect for Rights of Conscience Act”) that would amend the universal health-insurance-reform law to protect a broad right of conscience. The U.S. Supreme Court has already rebuked the administration’s anti-religion position, and Congress needs to follow the Supreme Court’s lead.


LOPEZ: Does this speak to broader concerns about the health-care legislation President Obama signed into law?

SMITH: Yes. There are many concerns about the administration’s universal health-insurance-reform law. The Supreme Court will hear oral argument in March over a challenge to the individual mandate, a separate provision of that law that requires individuals to obtain health insurance by 2014. Belmont Abbey College’s lawsuit involves another mandate under that law that requires all group health plans to provide contraception, sterilization, and abortion drugs. Even though these lawsuits involve two different mandates, both lawsuits stem from a similar problem with the health-care-reform law — Congress’s overreaching to impose a conformist one-size-fits-all solution to a perceived societal problem. It should come as no surprise that when Congress imposes mandates like these, it threatens individual liberty, generally, and religious liberty, specifically. The Founders knew this and structured our nation’s government such that Congress would have limited powers for this very reason, so that Congress could not restrict liberty in these ways.


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