Big Government vs. Little Sisters: a breach too far

With over ninety lawsuits in courts for over two years contesting the government’s violation of the Constitution and the Religious Freedom Restoration Act, this one may be emblematic.

The Little Sisters of the Poor, and order of nuns founded in the 1800’s to care for the elderly sick and the poor, have to go to court again to fight for the right to continue to do so. As Congressman Jeff Fortenberry told me on radio Monday, “they were already providing affordable care!” And doing so long before the president’s law by that name required compliance in providing drugs and services that violate consciences.

Understand the basics here, because the Little Sisters’ case starkly reveals them.

Under RFRA [the Religious Freedom Restoration Act], the government must establish it has a compelling interest to infringe upon the religious liberty of its citizens. The HHS mandate asserts that the government has a compelling interest to require that all employers provide health insurance that covers contraception, sterilization, and abortion-inducing drugs. The government claims such coverage is on par with preventive medical practices such as immunizations and cancer screening.

From a medical perspective this is ludicrous. Preventive medicine prevents disease and maintains health. Pregnancy is not a disease and fertility is not a disorder.

Full stop here. Because enough said. The Little Sisters – and all the other groups pursuing lawsuits to defend their right to continue doing their work and providing the healthcare coverage they were providing and applying their principles and moral beliefs to their work and services – are not trying to change what has already been easy access to birth control and morning-after pills. They’re trying to preserve their rights as they stood before the HHS mandate came out of nowhere and required coercion in a birth control delivery scheme that made these drugs part of the federal healthcare plan, masquerading as ‘women’s preventive health’.

And though this is an ‘aside’ to the main argument of government coercion to violate consciences, the HHS slipping in these drugs under that umbrella term bears scrutiny. So consider this aside:

Rather than maintaining health, contraception takes a perfectly healthy reproductive system and renders it non-functional. The methods used to achieve this state of sterility are fraught with health risks. The government’s own information page on contraceptives indicates they are associated with substantial risks including blood clots, breast cancer, cervical cancer, and liver cancer. Recent studies have demonstrated the use of hormonal contraceptives double the risk of transmission of the AIDS-inducing HIV. Women who use hormonal contraceptives increase their risk of the most aggressive form of breast cancer by at least 100 percent. The increase in breast cancer risk is greater the younger women are when they begin using hormonal contraceptives.

Some women choose to accept these risks and utilize hormonal contraception in order to be sexually active and avoid pregnancy. This is an elective lifestyle choice and not a necessary medical intervention. The government should have no more interest in whether or not women are accessing contraception to avoid pregnancy than whether or not women are using Lasik to improve their vision or using Botox to get rid of their wrinkles.

So, getting back to the two-prong test of RFRA, the first one was just addressed, that the government does not have a compelling interest to infringe on the religious liberty of its citizens.


Even if we were to allow that there is some government interest in ensuring all women have access to highly risky elective medical procedures, the HHS mandate fails to meet the second demand of RFRA that the government utilize the least restrictive means to satisfy its compelling interest. Since 1970, the federal government has funded contraception through a program known as Title X. When the HHS mandate was first introduced, supporters were quick to claim that virtually every American woman utilized contraception and supported their assertions with data from the Guttmacher Institute. There were many problems with their analysis of the Guttmacher Institute statistics, especially when it concerned the number of Catholic women utilizing contraceptives, but the information did indicate that access to contraception is not a problem for American women. Title X funding of women’s health clinics is working as intended. Therefore, the push to force all insurance policies to include coverage for contraception is addressing an access problem that does not exist. The least restrictive course of action would be to continue the current Title X funding mechanism and avoid infringement upon anyone’s religious liberty.

On March 25, the U.S. Supreme Court will begin hearing oral arguments in two key cases challenging the constitutionality of the government’s HHS mandate.

In the meantime, all sorts of injunctions have been granted to employers and organizations to stave off the harsh impact of this mandate until it’s settled by the high court. That includes the New Year’s Eve injunction granted the Little Sisters by Supreme Court Justice Sonia Sotomayor. Followed by the full Supreme Court ruling continuing that relief until the 10th Circuit took up the case again.

Now the Little Sisters have gone back before the 10th Circuit Court of Appeals, seeking justice.

“We are thrilled the Supreme Court temporarily protected the Little Sisters from having to violate their conscience or pay crippling IRS fines. We are hopeful the Tenth Circuit will give them more lasting protection,” said Mark Rienzi, Senior Counsel at the Becket Fund for Religious Liberty and lead counsel for Little Sisters of the Poor. “The federal government is a massive entity that has lots of ways to deliver contraceptives to people–it doesn’t need to force the Little Sisters to participate.”

The injunction from the Supreme Court provided the Little Sisters short-term protection from being forced to sign and deliver the controversial government forms authorizing, ordering, and incentivizing their health benefits administrator to provide contraceptives, sterilization, and drugs and devices that may cause early abortions. Instead, the Little Sisters simply had to inform HHS of their religious identity and objections.

In a USA Today column in the midst of this ongoing struggle, Kirsten Powers – who believes in government mandated birth control delivery on the face of it – called on the administration to give the Little Sisters of the Poor a break.

This is a very strange case. The government has argued that signing the form is meaningless because the nuns’ insurer, the Christian Brothers Employee Benefits Trust, is exempt from the mandate. Yet it has fought the Sisters all the way to the Supreme Court to make them sign it. What’s going on?

The government’s brief to the Colorado court provides a clue. It drips with contempt. The Obama administration finds the nuns’ complaint “implausible” and alleges that the Sisters are “fighting an invisible dragon.” Oh, you silly, simple-minded nuns! Just stop imagining things and do what the government tells you.

The Sisters reject the government’s contention that the form does nothing, as did all six lower courts to consider the claim in other church plan cases. They are wise to be leery of Uncle Sam’s intentions.

The dismissive tone of the administration’s brief is consistent with its overall attitude toward religious liberty issues throughout the implementation of the contraception mandate. Health and Human Services Secretary Kathleen Sebelius never bothered to consult the Justice Department to determine whether the mandate was consistent with the Constitution and the Religious Freedom Restoration Act, despite requests from Congress.

When asked whether she consulted the U.S. Conference of Catholic Bishops over their complaints about an effort to find an “accommodation,” Sebelius said she didn’t. Considering it was the primary group complaining, why not?

These are questions I’ve been asking for the past two years, and few in big media have bothered to. I’m glad Powers asked.

The administration’s indifference to religious liberty complaints is not limited to issues arising from Obamacare. In 2011, the government made the argument in Hosanna-Tabor v. the Equal Employment Opportunity Commission that churches do not have special rights under the First Amendment but merely association rights, like unions. Justice Antonin Scalia called this “extraordinary,” and Justice Elena Kagan said it was an “amazing” claim. Another word that comes to mind is “disturbing.” A unanimous court rejected the administration’s claim.

However, nine days after that unanimous Supreme Court ruling rejected the administration’s claim to the right to infringe on religious freedom in Hosanna-Tabor, the HHS mandate was issued. This is, in a word, relentless.

HHS mandate, the other Obamacare problem

The general public and the media are finally dealing with the reality of Obamacare. Great numbers of Americans have a nearly two year jump on that process.

To recap what many people probably forgot, the infamous HHS mandate was announced in January 2012, a throwdown to faith based institutions and employers requiring them to either violate their consciences or pay a prohibitive penalty. It signaled the government’s disregard for Constitutional and federal law protecting religious freedom rights. And it triggered an almost immediate response of legal challenges to the administrations’ audacious breach of those rights.

To date, this unconstitutional mandate in Obamacare has racked up 77 court cases with over 200 plaintiffs bringing suit against the administration. Most of which has flown under radar while the press wasn’t paying attention and Americans were going about their business. Except for the Americans who couldn’t conduct their business any longer without violating their conscience and deeply held beliefs, or paying a punitive fine for refusing to do so.

In every case, the government’s attorneys have had to defend in court the indefensible, and they’re losing in some significant cases and getting admonished by some judges. Like last week’s decision by the 7th Circuit Court

that found the Obama administration’s abortion pill mandate to be in violation of federal religious liberty protections. The court called the administration’s argument that religious freedom disappears when doing business “unsound and extraordinary.”

That’s right. The administration’s attorneys argued that when people enter into business, they check their religious freedom rights at the door. Breathtaking, really.

“All Americans, including job creators, should be free to honor God and live according to their faith,” said Senior Legal Counsel Matt Bowman, who argued before the 7th Circuit in May. “The court’s decision joins the majority of other rulings on the mandate, which have found it to excessively conflict with our nation’s guarantee of religious freedom to all Americans. The decision rightly foresees the dangers of allowing government to have this kind of power. If the government can force family business owners to act contrary to their deepest convictions under the threat of fining them out of business, it is a danger to everybody.”

Precisely. And that court said as much earlier in this case.

In January, the 7th Circuit issued an order in Grote Industries v. Sebelius that temporarily stopped enforcement of the mandate until appeals could be resolved.

“We hold that the plaintiffs–the business owners and their companies–may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious exercise rights…,” the 7th Circuit’s decision states. “On the government’s understanding of religious liberty, a Jewish restaurant operating for profit could be denied the right to observe Kosher dietary restrictions. That cannot be right. There is nothing inherently incompatible between religious exercise and profit-seeking.”

I happened to plan Wednesday’s radio show this week as an update on the HHS mandate lawsuits, given all the news on that front lately while the rest of America has been focused on the other drastic consequences of Obamacare. Besides lead counsel Matt Bowman updating that 7th Circuit Court decision, I had Prof. Dwight Duncan on as a guest on constitutional law and the HHS mandate, the author of this article on religious freedom who most recently filed an amicus brief in the DC Circuit Gilardi decision that struck the mandate.

Prof. Duncan said it’s not up to judges and to government to decide if something violates Catholic moral teaching, it’s up to clergy and theologians to decide what’s moral, and that’s where the Religious Freedom Restoration Act kicks in. That federal, bi-partisan law passed under the presidency of Bill Clinton requires the government to prove a compelling interest in violating religious freedom rights, and that it’s going about it in the least restrictive means possible. This administration under this mandate can’t meet either of that two-pronged test.

The hour before the radio show went on the air Wednesday, the US bishops conference wrapped up their Fall meeting and released a ‘Special Message‘ on the HHS Mandate, reinforcing their commitment to defending and protecting religious freedom for institutions, employers and individuals in spite of government mandates that violate them. That statement played into discussions with both legal experts Matt Bowman and Dwight Duncan on the show that day.

But Thursday, Baltimore Archbishop William Lori, chairman of the committee on religious liberty for the US bishops, took time to come on the radio show to talk about that statement on the HHS mandate.

Here’s part of what it said:

Yet with its coercive HHS mandate, the government is refusing to uphold its obligation to respect the rights of religious believers. Beginning in March 2012, in United for Religious Freedom, we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.

Despite our repeated efforts to work and dialogue toward a solution, those problems remain. Not only does the mandate undermine our ministries’ ability to witness to our faith, which is their core mission, but the penalties it imposes also lay a great burden on those ministries, threatening their very ability to survive and to serve the many who rely on their care.

The current impasse is all the more frustrating because the Catholic Church has long been a leading provider of, and advocate for, accessible, life-affirming health care. We would have preferred to spend these recent past years working toward this shared goal instead of resisting this intrusion into our religious liberty. We have been forced to devote time and resources to a conflict we did not start nor seek.

As the government’s implementation of the mandate against us approaches, we bishops stand united in our resolve to resist this heavy burden and protect our religious freedom. Even as each bishop struggles to address the mandate, together we are striving to develop alternate avenues of response to this difficult situation. We seek to answer the Gospel call to serve our neighbors, meet our obligation to provide our people with just health insurance, protect our religious freedom, and not be coerced to violate our consciences. We remain grateful for the unity we share in this endeavor with Americans of all other faiths, and even with those of no faith at all. It is our hope that our ministries and lay faithful will be able to continue providing insurance in a manner consistent with the faith of our Church. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.

Here’s what Archbishop Lori said on my radio show. “We’re determined to continue our ministries according to the Gospel of our faith. This is an important message to send, and important to send it unanimously. The big problem with the HHS mandate is that it’s the government dividing up our ministries. If you’re serving the public, you have to play by rules other than your own. That’s a fundamental problem and a great burden on our religious liberty.

“I do believe we’ve raised a lot of awareness of a lot of Catholics, underneath there’s a ground shift in our ability to provide educational services, healing services. The government says we have to provide things that go against our beliefs and go against human dignity. It’s a difficult climate in Congress to get beyond the partisan labels. But we’re not coming at this from a partisan point of view, it’s fundamental.

“Since 1919, the bishops have been on this, saying accessible health care has been a really important thing for people everywhere. We have certainly have been willing and able to advance that everywhere. Our hospitals and health clinics do untold amounts of uncompensated health care every year. And in the pursuit of this very laudable goal, we find ourselves sidetracked by this mandate, absorbing our time, absorbing our resources, when in fact we would prefer to put that same time and energy into serving the poor and the needy.

“How ironic that when the government decides to do accessible health care it decides to put one of its staunchest allies in its sights. The Catholic Church is the largest provider of health care, social services and education.

“Here’s where Pope Francis is so beautiful, in many ways, but especially this. He says ‘bring the Gospel out of the four walls of the Church into the world. And that’s what we passionately believe we should be doing. We do it in health care, we do it in social services, we do it in education. But we’re being told that by doing that, we play by other rules, by government rules. We compete on contracts, but we compete on the basis of excellence. And just because we do this, doesn’t mean we have to surrender our faith.”

The bishops ended their ‘Special Message’ with this:

We seek to answer the Gospel call to serve our neighbors, meet our obligation to provide our people with just health insurance, protect our religious freedom, and not be coerced to violate our consciences. We remain grateful for the unity we share in this endeavor with Americans of all other faiths, and even with those of no faith at all. It is our hope that our ministries and lay faithful will be able to continue providing insurance in a manner consistent with the faith of our Church. We will continue our efforts in Congress and especially with the promising initiatives in the courts to protect the religious freedom that ensures our ability to fulfill the Gospel by serving the common good.

It’s just one of the fallouts of Obamacare, and the one long forgotten by some. But it has endured and will, in the effort of Americans committed to do good works informed by faith and moral principles in serving people in need, without coercion by government.

And by the way, this mandate is inevitably headed to the Supreme Court.

US Independence Day weekend 2013

What’s the state of the union built on the freedoms we celebrate this weekend? In a word, threatened.

Especially religious freedom, our first, most cherished liberty. Aside from threats to our privacy and freedom of speech, exposed in a new way by ongoing government scandals involving the IRS and Justice Department, the violation of conscience required by the HHS mandate is still unchanged by this administration and still challenged in courts across the country by private employers and institutions most threatened by it.

About the unchanged final ruling:

Still using words like “houses of worship” and pretending to carve out religious-liberty accommodations for some religiously affiliated non-profits, the Department of Health and Human Services issued its final abortion-drug, contraception, (female) sterilization employer insurance mandate today.

It appears that the Obama administration’s disregard for Americans’ conscience rights has been formalized by the rule.

Which is why a huge coalition of religious leaders issued an open letter calling on the administration and Congress to respect conscience rights and religious freedom, a battle those leaders engaged over a year and a half ago when the HHS mandate was first issued.

“We are pleased to stand with so many partners from other faith traditions in raising continued awareness over the religious liberty concerns and the HHS Mandate,” Archbishop William Lori of Baltimore said at a press conference announcing the open letter. “Those present today and the statement we have signed underscores that this is about the religious freedom enjoyed by people of all faiths and even no faith at all, something we hold dear as Americans, and something most worthy of defending and preserving.”

“The government has given us word games and accounting tricks that amount to the same mandate, over and over again,” added Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, the nation’s largest Protestant denomination. “We are not so easily hypnotized by bureaucratic parlor tricks. Our government has treated free exercise of religion as though it were a tattered house standing in the way of a government construction of a railroad, there to be bought off or plowed out of the way, in the name of progress. We dissent.”

The letter was also signed by several Catholic college presidents, as well as by Mormon, Scientology, and Krishna Consciousness officials.

And they join the larger coalition that has included atheists in the past year, resisting not only the government’s unconstitutional intrusion on free exercise of religion, but the human right to conscience itself. Which predates the State.

We used to take these things for granted. The upshot of such imposing threats is that we no longer can. Guaranteed rights are no longer guaranteed. And complacency is not an option. Freedom has always required vigilance.

How to be a Catholic Democrat

And not.

Many top Catholic scholars and members of media and public servants regretfully left the Democratic party of their fathers when the party abandoned their principles so profoundly, they couldn’t compromise such fundamental values.

Others stayed in the party, either capitulating to political expediency or (conversely) determining to reform the Democratic politics according to its rich heritage.

So here’s an example of both.

Nancy Pelosi.

“Well I don’t think that is the entire Catholic Church,” House Minority Leader Nancy Pelosi (D-Calif.) said about the lawsuit brought against the Obama administration by numerous Catholic institutions in the U.S. “Those people have a right to sue, but I don’t think they’re speaking for the Catholic Church and they’re are people in the Catholic Church, including some of the bishops, who have suggested that some of this may be premature.”

“You know what? I do my religion on Sunday in church and I try to go other days of the week. I don’t do it at this press conference,” Pelosi said curtly at her weekly press conference.

And Ray Flynn, popular former mayor of Boston and US Ambassador to the Vatican.

Ambassador Raymond L. Flynn expressed concern about the HHS mandate driving a wedge between Catholics and the Democratic Party as he addressed a Stand Up for Religious Freedom rally at the Boston Commons…

“As a proud lifelong Catholic Democrat, I fear that this dangerous policy is causing a serious rift between the Democratic Party and Catholics – and people of all faiths for that matter. Sadly, this unthinkable move threatens a long and proud relationship.”

In the days of Roosevelt, “It was unthinkable for most Catholics not to vote the straight Democratic ticket.” The era continued through the 50s and 70s…

[I]t was both the Church and the Democratic Party who were always there to help. They were working for better and safer work conditions on the docks, medical care, educating kids and helping the poor. People in those days were loyal to the Church and the Democratic Party.”

“You can’t imagine how I felt when I saw my longtime friend Cardinal Timothy Dolan of New York City filing a legal challenge against the Obama Administration for their discriminatory policies against religious institutions in America. I am proud of Cardinal Dolan, but ashamed that this administration has let it come to this.”

“It is outrageous that the administration has taken action to trample on the rights of religious institutions and people of faith. Despite what you hear from the media and some politicians, this is not about access to contraception; it is about the principle of whether the federal government can force religious organizations to take actions that violate their own faith and their own conscience. Catholics will not stand by and be silent!”

I had a very engaging conversation with Ambassador Flynn Thursday. He made a passionate case for citizen involvement in this current heated struggle to preserve historic, constitutional, religious liberties. “Catholics cannot afford to lose this struggle,” he said, adding that though it’s not a Catholic issue, it’s been framed as one and deeply threatens the existence of social ministries.

“We’re in a battle here,” he said fervently. “I can’t get over it that here we are in 2012 being challenged this way. There’s an elitist group of people coming around telling us what we can and can’t do. We have always valued human rights and religious freedom, and there are a lot of wonderful, decent people out there who are working to serve those in need.”

Then he added: “There is no force more powerful than truth, and it will prevail.”

He also wanted radio listeners to know that “Information is the most powerful tool,” so access it and spread it.

Here’s an important site of bi-partisan thought leaders, including Flynn.

Dozens of Catholic institutions sue Obama

He may have been counting on the controversy over the HHS mandate to blow over after a few months and changing news cycles passed. He may have counted on it continuing to simmer and making it an issue about ‘women’s preventive health services’ and contraception and the bogus ‘war on women.’ But he probably didn’t see this coming.

On Monday, 43 Catholic institutions joined a dozen lawsuits filed against the administration.

Some of the most influential Catholic institutions in the country filed suit against the Obama administration Monday over the so-called contraception mandate, in one of the biggest coordinated legal challenges to the rule to date.

Claiming their “fundamental rights hang in the balance,” a total of 43 plaintiffs filed a dozen separate federal lawsuits challenging the constitutionality of the requirement. Among the organizations filing were the University of Notre Dame, the Archdiocese of New York and The Catholic University of America.

Cardinal Timothy Dolan, Archbishop of New York and president of the US bishops conference, released this statement:

“We have tried negotiation with the Administration and legislation with the Congress – and we’ll keep at it – but there’s still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now. Though the Conference is not a party to the lawsuits, we applaud this courageous action by so many individual dioceses, charities, hospitals and schools across the nation, in coordination with the law firm of Jones Day. It is also a compelling display of the unity of the Church in defense of religious liberty. It’s also a great show of the diversity of the Church’s ministries that serve the common good and that are jeopardized by the mandate – ministries to the poor, the sick, and the uneducated, to people of any faith or no faith at all.”

Notre Dame’s lawsuit is drawing a lot of attention. Fr. John Jenkins, president of Notre Dame, said the lawsuit was not a war on a woman’s right to use contraception.

“Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives,” Jenkins said. “As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.”

Others weighed in…

Franciscan University:

“Franciscan University’s mission is and always has been to teach from the heart of the Church,” said University President Father Terence Henry, TOR. “The Obama administration’s mandate is a grave threat to our ability to carry out that mission. It makes it impossible for us to operate freely as a Catholic institution without overbearing and invasive governmental interference.”

Archdiocese of Washington:

This lawsuit is about an unprecedented attack by the federal government on one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have access to certain services; it is about whether the government may force religious institutions and individuals to facilitate and fund services which violate their religious beliefs.

These strong statements were echoed across the country in this well-coordinated legal challenge.

They won’t back down. And the ‘Catholic vote’ is shifting significantly this election year.

Liberals sometimes want bishops to speak up

Until they don’t. Depends on the issue.

But it’s interesting to juxtapose reactions to the US bishops speaking out on different issues.

Like former Speaker Nancy Pelosi’s flip-flopping (popular term in politics) from wanting the bishops to stay out of politics when it comes to matters of faith and morals and Catholic politicians, to wanting the bishops to speak from the pulpit actively engaging Catholics to support a measure she backed and felt they should, too. That time, it was immigration reform.

But a big talking point for liberal Catholic Democrats in Congress who disagree with Church teaching and vote for measures according to their own lights, is the primacy of conscience.

Which the Vatican took up as the focus of a conference on the whole issue of conscience, after it got batted about with no small amount of confusion.

So because these legislators have so emphatically insisted on the preeminent primacy of conscience, I’m wondering why the the legislation authored by Congressman Jeff Fortenberry, Respect for Rights of Conscience Act failed in the Senate as the Blunt-Fortenberry bill, and why it’s not getting more support in the House.

“We have come together to say it’s time to act to protect Americans’ most basic rights – our religious freedom and rights of conscience,” Fortenberry said. “I am very pleased to stand with House and Senate colleagues of both parties to call for swift action on this bill.” 

Yes, it’s bipartisan. It’s about the fundamental human right to conscience protection. But it’s received no primacy of attention, or any at all, from those liberal Catholic politicians and precious little from moderates and even conservatives. Because it’s political kryptonite for ambitious senators and congressmen.

In early March, Cong. Fortenberry told me he had 220 co-sponsors and he was hopeful more members of Congress would sign on since the recently announced HHS mandate posed unprecedented federal threats to conscience rights and religious liberty. Last week, Cong. Fortenberry told me he has 224 co-sponsors. That’s shameful, for a lot of people.

The bishops are speaking out alright, more unified than they’ve ever been before. This is their Magna Carta.

HHS mandate remains unchanged

On the morning of the religious freedom rallies across America last Friday, organizer Eric Scheidler was questioned by a network television news anchor about the goal of the event. “Since the administraiton already provided an ‘accommodation’ for religious objection” said the newsman, “are you looking for another accommodation?” It was a fundamentally flawed premise, widely held by major media still.

One of the more revealing aspects of the mandate’s mass marketing has been how startling it is to so many people when they hear that there was no accommodation. Let’s clarify.

Kathryn Lopez takes it on directly at NRO’s Corner.

Can we all get one fact straight? As the president was announcing an “accommodation” in a press conference with Kathleen Sebelius on February 10 concerning the HHS contraceptive mandate, a rule was filed in the Federal Register that was unchanged (the word “unchanged” even appears four times in the final rule as filed) from the regulation the same Cabinet secretary had announced on January 20, that had been originally presented on August 1. That August rule had the narrowest of religious exemptions. And that rule was subsequently filed in the Federal Register.

Unchanged, to repeat

Which Matt Franck explicitly pointed out on Public Discourse.

After three weeks of outcry from religious leaders regarding its Health and Human Services contraception insurance mandate, the Obama administration announced a “compromise” on February 10. But the White House’s idea of “compromise” is nothing more than a classic shell game, leaving the same problems in place that have been the source of controversy since this federal rule was first proposed last August. Some people claiming to represent a Catholic perspective have offered their support to the administration, but the nation’s Catholic bishops have declared this “bargain” unacceptable. Already, scores of college presidents, scholars of religious liberty, and other religious and educational leaders—Catholic, Protestant, and Jewish—have joined the bishops in rejecting the administration’s fraudulent “accommodation.”

But media have not done the homework to find the obvious, finding it easier to echo an empty claim. It achieved the goal of convincing some key people.

The president and the secretary seemed to realize that some appearance of being accommodating was necessary, and so on February 10 they produced just that—a mere appearance of “compromise.” First, the controversial rule was published that day in the Federal Register, without any change.

Then, in a “fact sheet” distributed by the White House, the administration promised to work “in the transition year” from August 2012 to August 2013 on a “new regulation” covering “religious organizations” not fitting in the current exemption. The transparent objective of this promise is to get past the 2012 presidential election without arguing about this controversy any further.

It’s not working. The facts are there.

Religious freedom rallies

They launched big, in 140 cities, coast to coast.

Organizers hope it was only the beginning. They are indeed resourceful.

Take Chicago, for example, where a long summer-like streak ended that morning with a heavy downpour and chilly temperatures and adverse conditions. The crowd swelled to about 2,500 anyway. The sound system went out moments before the noon start time. The message was amplified anyway.

Trouble is, it had to be amplified by bullhorn. And I was the first speaker. I detested having to shout into a bullhorn mouthpiece so the crowd could hear. But was slightly horrified to hear the back of the crowd calling ‘louder, we can’t hear,’ having to crank it up to a higher pitch and force every word as loudly as possible. That’s not the way to deliver a message, in my book.

So here’s what I tried to say.

On January 11th, the Supreme Court unanimously ruled in favor of upholding constitutionally protected religious liberty when the Justice Department tried to exert federal authority over how churches define ministries. Obama appointee Justice Elena Kagan joined a concurring opinion with Justice Samuel Alito saying “we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Courts, the opinion stated, must avoid inquiring into whether religious reasons given for internal governance decisions are merely “pretexts” for evading legal obligations.

About a week later, the Obama administration’s HHS mandate was issued, on Friday the 20th, requiring insurance coverage of abortion-inducing drugs and sterilization and contraception, with virtually no religious exemption, thus exerting an audacious and sovereign end-run around even the courts. For the time being, anyway.

Okay, so with a blog I can expand a bit on the few minutes worth of remarks given under duress at a rally.

Earlier that same day, Friday January 20th, before the HHS mandate announcement, I was on the BBC program ‘World Have Your Say’ as part of a panel discussion on the SOPA and PIPA legislation in Congress to impose new restrictions on freedom of information. That panel included a young woman in Cairo, a man in Nairobi, a woman in Britain, a man in Washington and I was the US journalist in Chicago. Wikipedia had gone dark for a day to boycott government overreach, and many internet sites joined in some way to protest. Social media networks launched a campaign of activism so forceful, legislators started backing off the bill they had co-sponsored saying they heard the voice of the people and needed to reconsider legislation.

With the HHS mandate, government is denying conscience rights inherent in American tradition and fundamental to human rights everywhere. The right to conscientious objection has been nearly sacrosanct in American history, and now it’s being tried and tested to a new degree. More Americans oppose this move as government overreach than those who accept it as somehow an outgrowth of what’s colloquially known as ‘Obamacare.’

And btw…I cover enough news sources every day to know that’s not a pejorative as much as it is functional shorthand used by most media, to address those who try to discount criticism of the policies by criticising terminology. Some of the same people who have no problem with the term ‘Romneycare’ for GOP candidate Mitt Romney’s health care law in Massachusettes.

But I digress.

The morning of the rally, I heard the main organizer, Eric Scheidler, interviewed on television network news about the rallies across America, and the final question was ‘what do you want?’ The anchor said ‘there was an accommodation already made over this, so are you looking for another accommodation?’ I worked that into my brief remarks at the rally. There was no accommodation. It did not happen. The White House held a Friday press conference on February 10th announcing that there was, but the HHS mandate was entered into the public record that evening unchanged. It was a diversionary tactic, truth be told.

The Supreme Court hears arguments this week over the individual mandate in Obamacare, challenging the first time the federal government has required American citizens to purchase something by law. With the HHS mandate to purchase something, or provide insurance coverage for something, that violates consciences and religious beliefs, the court challenges are piling up and experts predict this mandate won’t stand judicial scrutiny.

Better to find a remedy before it gets to that point.

Obama’s response to church concerns ‘unacceptable’

Misinformation abounds in the media about President Obama’s alleged “accommodation” for religious liberty in his administration’s hardline HHS mandate.

Let’s have some clarity. Three responses, for now.

First, Liberty Counsel, a group in solidarity with Catholics because everyone’s fundamental conscience rights are at stake in this. 

Obama’s “new directive” only underscores the problem that he has the power to issue a directive, without any legislative oversight, that directly conflicts with freedom of religion and the right of conscience.

He stated, “If a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company, not the hospital, not the charity, will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles. The result will be that religious organizations won’t have to pay for these services and no religious institution will have to provide these services directly.” (Emphasis added)

Obama’s speech reveals his fundamental misunderstanding of the First Amendment. Forcing an insurance company to pay for contraceptives and abortifacients is only an accounting gimmick, which he acknowledges would still require religious organizations to fund contraceptives and abortifacients indirectly. Someone has to pay for this funding, and that burden will fall upon all employers, including religious organizations. Moreover, religious institutions that are self-insured, such as Liberty University, the world’s largest Christian school, are still required to pay directly for these items.

Laundering a Catholic or Christian organization’s money through the insurance company to pay for abortifacients does not suddenly correct the moral sin inflicted by Obama. ObamaCare is a direct attack on the moral and religious beliefs of our nation.

The Becket Fund for Religious Liberty representing three organizations in lawsuits against the Obama administration.

Facing a political firestorm, President Obama today announced his intent to make changes to a controversial rule that would require religious institutions, in violation of their conscience, to pay for contraception, sterilization, and abortifacient drugs. But this “compromise” is an exercise in obfuscation, not a good faith effort to solve the problem. Thousands of churches, religious organizations, businesses, individuals, and others will still be forced to violate their religious beliefs.

For example, the fake compromise will not help the Becket Fund’s clients Belmont Abbey College in North Carolina, Colorado Christian University, and Eternal Word Television Network (EWTN), a Catholic media organization. They will still be forced to pay for insurance that provides contraceptive coverage. The White House’s claim that “the insurance companies will pay for it” is silly. For-profit insurance companies aren’t going to donate contraceptives and abortion drugs to employees; the employer will pay for it one way or the other. More fundamentally, the Becket Fund’s clients still face the same chilling dilemma they did yesterday: choosing between helping their employees buy immoral abortion drugs or paying huge fines.

“This is a false ‘compromise’ designed to protect the President’s re-election chances, not to protect the right of conscience,” says Hannah Smith, Senior Legal Counsel for The Becket Fund. “No one should be fooled by what amounts to an accounting gimmick. Religious employers will still have to violate their religious convictions or pay heavy annual fines to the IRS.”

According to a White House “fact sheet,” some religious employers will no longer be required to provide insurance coverage for contraception, sterilization, and abortion-causing drugs; coverage for those services will instead be provided for free directly by insurance companies. This does not protect anyone’s conscience. First, the problem is helping employees get abortion drugs, not the cost of providing those drugs. Since providing insurance benefits would still help employees get insurance, religious employers still have to choose between providing health benefits that help employees get abortion drugs, and paying annual fines. Second, thousands of religious organizations self insure, meaning that they will be forced to pay directly for these services in violation of their religious beliefs. Third, it is unclear which religious organizations are permitted to claim the new exemption, and whether it will extend to for-profit organizations, individuals, or non-denominational organizations.

“It is especially telling that the details of this fake ‘compromise’ will likely not be announced until after the election,” said Smith. “Religious freedom is not a political football to be kicked around in an election-year.

And yet it is. Which is unacceptable to thinking people.

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust.  Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

To call it “morally obtuse” is intellectually honest and academically polite.

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization.  This is a grave violation of religious freedom and cannot stand.  It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.

That transparency Obama promised when he ran for president is actually being delivered, whether he likes it or not.

Religious freedom threat level raised

Policies of the federal government under the Obama administration have ignited a blaze of concerns about fundamental religious liberties in America.

Archbishop Timothy Dolan, president of the US bishops conference, wrote a letter to the president recently.

The Administration’s assault on DOMA [Defense of Marriage Act], Archbishop Dolan said, will “precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.”


Archbishop Dolan especially objected to the Justice Department’s legal arguments that equate those in favor of DOMA to racists. It is “particularly upsetting,” he said, when the Administration attributes to those who support DOMA “a motivation rooted in prejudice and bias.It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing,” he said.

He underscored the Church’s position recognizing “the immeasurable personal dignity and equal worth of all individuals, including those with same-sex attraction” and said “we reject all hatred and unjust treatment against any person.”

“Our profound regard for marriage as the complementary and fruitful union of a man and a woman does not negate our concern for the well-being of all people but reinforces it,” he said. “While all persons merit our full respect, no other relationships provide for the common good what marriage between husband and wife provides.The law should reflect this reality.”

Archbishop Dolan advised President Obama: “push the reset button on your Administration’s approach to DOMA.”

“Our federal government should not be presuming ill intent or moral blindness on the part of the overwhelming majority of its citizens, millions of whom have gone to the polls to directly support DOMAs in their states and have thereby endorsed marriage as the union of man and woman.Nor should a policy disagreement over the meaning of marriage be treated by federal officials as a federal offense—but this will happen if the Justice Department’s latest constitutional theory prevails in court.”

Archbishop Dolan asked President Obama to “end its campaign against DOMA, the institution of marriage it protects, and religious freedom.”

“Please know that I am always ready to discuss with you the concerns raised here and to address any questions that you may have.” he added. “I am convinced that the door to a dialogue that is strong enough to endure even serious and fundamental disagreements can and must remain open, and I believe that you desire the same.”

Archbishop Dolan was offering a statesman-like presumption of goodwill in warning that if this course is continued, it “will” result in a national conflict. Because it actually has.

Just days ago, the bishops assembled a new ‘task force’ to tackle this new and historic threat to religious liberties.

Saying they are increasingly distressed over government policies that promote contraception, abortion and same-sex marriage and amount to an assault on religious freedom, the U.S. bishops have established a committee to shape public policy and coordinate the church’s response on the issue.

The Ad Hoc Committee for Religious Liberty was announced Sept. 30 by Archbishop Timothy M. Dolan of New York, president of the U.S. Conference of Catholic Bishops.

Bishop William E. Lori of Bridgeport, Conn., was named chairman of the new committee.

“There is a common and factually grounded perception that religious liberty is increasingly under assault at the state and federal level in the United States, whether through unfriendly legislation or through rules and regulations that impede or tend to impede the work of the church,”…

He says the government is playing God.

Emerging threats to religious freedom have inspired the U.S. bishops to establish a new committee for its protection. Its chairman sees government taking God’s place as the source of the “first freedom.”

Bridgeport Bishop William E. Lori told CNA on Sept. 30 that a “principal and overarching error,” connecting several different threats to the free exercise of faith, is “the view that it is the state that grants religious liberty, and not God.”

“Even though religious liberty is enshrined at the head of the Bill of Rights, in the First Amendment, there is an increasing tendency to make it a lesser right – and to make it quite relative to other, ‘newly-discovered’ rights in our law and in our culture,” said the Connecticut bishop, whose 2010 pastoral letter “Let Freedom Ring” addressed the subject of state intrusion against believers.

The chair of the new Ad Hoc Committee for Religious Liberty said respect for “religion as a merely private affair” remains largely intact.

But he warned that the “institutional conscience” of religious hospitals and similar establishments is being threatened at high levels – as are the conscience rights of individuals in “clutch situations” like filling prescriptions or issuing marriage licenses.

“Their rights are being trampled upon,” said Bishop Lori.

In his letter announcing the new committee’s formation, Archbishop Dolan said that the “basic right” to religious freedom “is now increasingly and in unprecedented ways under assault in America,” especially from an “an increasing number of federal government programs or policies that would infringe upon the right of conscience of people of faith.”

The ‘national conflict of enormous proportions’ is not coming. It is here.