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.