As courts across the country, including the U.S. Supreme Court, take up challenges to the HHS Mandate, they – indeed, all of us – could learn a lesson from an event from Anglican history.
In 1847, the Anglican vicar George Gorham sought the vicariate for a small parish in Devon, England. The Anglican bishop for the region, Henry Phillpotts, interviewed Gorham and found him to be unsuitable for the position because Gorham rejected the sacramental view of baptism and did not believe in baptismal regeneration. Phillpotts considered Gorham’s views as inconsistent with Anglican theology.
Gorham eventually appealed to a secular court which awarded him the position in 1850. The Gorham Judgment caused an uproar in the Anglican Church. For some, it represented inappropriate interference by the state into ecclesiastical affairs. For others, it confirmed their suspicions that the Church of England was more an arm of the state rather than a church in succession with the apostles. The affair was one event that led to many, including Henry Manning and John Henry Newman, to become Roman Catholics.
The Gorham Judgment was possible, of course, because the Church of England was – and still is – the “established church” of England. The Establishment and Free Exercise Clauses of the U.S. Constitution are supposed to prevent interference by the government into religious affairs in our country. Nevertheless, in its defense of the HHS Mandate, the Obama Administration has opined that the religious objections held by Hobby Lobby and Little Sisters of the Poor are not, in fact, religious objections.
In the case involving for-profit entities headed to the Supreme Court, the Administration claims that because Hobby Lobby puts money into a general fund to finance health care for their employees and because the employees choose whether to use the coverage for abortifacients, the injury to the religious rights of Hobby Lobby is too “attenuated” and remote.
Remoteness is, however, a religious question. Indeed, volumes of Catholic moral theology have been written on the subject. Undoubtedly, there are some who would agree with the Obama Administration that the decision by an employee to use an abortifacient is so removed from Hobby Lobby’s act of funding the health care coverage that Hobby Lobby should not feel like it violated its religious tenets. What ultimately matters, though, is not what others think, but what Hobby Lobby’s owners think. The Obama Administration position amounts to telling Hobby Lobby, “We know what is morally right and wrong more than you do.”
The Administration’s position for non-profits like the Little Sisters of the Poor is no better. The Administration attempted to create an “accommodation” for religious entities that are not places of worship. The accommodation provides that the religious entities do not have to pay for the contraceptives directly. Instead, they will be covered directly by the insurance companies or administrators. In order for the religious entity to take advantage of this accommodation, and before the insurer can provide the contraceptives, the entity has to complete a specified government form.
If the government form was only a notice to the federal government that the entity seeks the accommodation, there might not have been a problem. However, as numerous courts have agreed, the form is really a permission slip allowing the insurer to provide the objectionable coverage.
To moral theologians the dilemma is clear. If you cannot morally do a wrongful act you also cannot help someone else to do it by giving them legal permission to do so. To the Little Sisters of the Poor and many other Catholic entities, completing the form would make them complicit in something to which they morally object. The Obama Administration, however, despite admitting that without the form the insurer cannot provide the contraceptives, argues that completing the form would not violate the religious beliefs of the Little Sisters of the Poor.
All Americans should be troubled by the Administration’s attempt to impose its moral and religious analyses. Like the court in the Gorham case, the government’s position amounts to nothing more than the assertion that they know religion better than the rest of us.
Executive Director, North Dakota Catholic Conference
U.S. Bishops File Amicus Curiae Brief Supporting Hobby Lobby and Conestoga Wood Specialties in Supreme Court Cases Challenging HHS Mandate
Brief highlights ‘potentially fatal fines’ confronting closely held businesses
Reiterates support for business owners challenging HHS mandate
Laws must protect individuals and families who seek to practice faith in daily life
The U.S. Conference of Catholic Bishops (USCCB) on January 28 filed an amicus curiae brief with the U.S. Supreme Court in support of the plaintiffs in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. In both cases, family-owned businesses are challenging the legality of the U.S. Department of Health and Human Services (HHS) regulation that forces virtually all employers to include in their employee health plans coverage of sterilization, contraceptives, and drugs and devices that may cause abortions, as well as related education and counseling.
The USCCB explained in its amicus brief that it opposes “any rule that would require faithful Catholics and other religiously motivated business owners to choose between providing coverage for products and speech that violate their religious beliefs, and exposing their businesses to devastating penalties.” These penalties include “potentially fatal fines” of $100 a day per affected individual.
The brief reflects and implements the U.S. bishops’ consistent support for litigants from the non-profit and for-profit sectors alike who have challenged the HHS mandate in court.
Archbishop William E. Lori of Baltimore, chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, stated that “Catholics believe that the right to religious freedom proceeds from the inherent dignity of each and every human person, and that includes people who run businesses. They should not be specially excluded from the freedom to practice their faith in daily life.”
The amicus brief argued that religious exercise cannot, and should not, be excluded from the marketplace; that the mandate substantially burdens Hobby Lobby’s and Conestoga’s religious exercise; and that the mandate cannot survive strict scrutiny review by the Court.
Hobby Lobby and Conestoga Wood Specialties are among over 90 lawsuits filed by more than 300 plaintiffs challenging the HHS mandate in courts around the country.
The brief is available online: http://www.usccb.org/about/general-counsel/amicus-briefs/upload/amicus-13-354-13-356-sebelius-hobby-lobby-conestoga-wood.pdf
Archbishop Kurtz Welcomes Supreme Court Injunction for Little Sisters of the Poor Against HHS Mandate
At the March for Life Rally on the Mall in Washington, DC, House Majority Leader Eric Cantor (R-VA) announced that the U.S. House of Representatives would vote on the No Taxpayer Funding for Abortion Act (H.R. 7) during the week of January 27. NCHLA has updated its Action Alert to reflect this new information. See: nchla.org/actiondisplay.asp?ID=310.
Please continue to do what you can to encourage people to contact their U.S. Representatives on this matter.
The No Taxpayer Funding for Abortion Act, first introduced in 2010, would place in permanent law a consistent policy that the federal government should not use tax dollars to support or promote elective abortion. In 2011, the measure was approved by the House with bipartisan support, 251-yes, 175-no.
Thanks for all that you do in support of life!
In congressional testimony, an official of the United States Conference of Catholic Bishops has voiced the bishops’ support for H.R. 7, the “No Taxpayer Funding for Abortion Act.” The bipartisan bill was introduced by Rep. Chris Smith (R-NJ) to prevent every federal program from funding abortion and abortion coverage on a permanent basis. A hearing was held on the legislation January 9, by the House Judiciary Subcommittee on the Constitution and Civil Justice.
“H.R. 7 will write into permanent law a policy on which there has been strong popular and congressional agreement for over 35 years: The federal government should not use its funding power to support or promote abortion,” said Richard M. Doerflinger, Associate Director of the USCCB Secretariat of ProLife Activities. “This principle has been embodied in the Hyde amendment and numerous other provisions governing a wide range of domestic and foreign programs. It has consistently had the support of the American people. Women oppose federally funded or federally mandated abortion coverage as strongly as men or more so; low-income Americans oppose it more strongly than the affluent.”
Citing the U.S. Supreme Court’s 1980 decision upholding the Hyde amendment, Doerflinger observed: “Even courts insisting on a constitutional ‘right’ to abortion have said this alleged right ‘implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds’.”
Doerflinger said that “Congress’s policy has been consistent for decades,” but “its implementation in practice has been piecemeal, confusing and sometimes sadly inadequate.” This is especially true of the Affordable Care Act passed by Congress in 2010, he said, citing “recent developments” that “underscore a need to correct the abortion funding problems” in the Act.
The full text of Doerflinger’s written testimony can be found at www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/HR-7-No-Taxpayer-Funding-for-Abortion-Testimony-1-9-2014.pdf. Following is the text he prepared for oral delivery at the hearing:
Thank you for this opportunity to voice our support for H.R. 7, the No Taxpayer Funding for Abortion Act.
H.R. 7 will write into permanent law a policy on which there has been strong popular and congressional agreement for over 35 years: The federal government should not use its funding power to support or promote abortion. This principle has been embodied in the Hyde amendment and numerous other provisions governing a wide range of domestic and foreign programs. It has consistently had the support of the American people. Women oppose federally funded or federally mandated abortion coverage as strongly as men or more so; low-income Americans oppose it more strongly than the affluent.
Even courts insisting on a constitutional “right” to abortion have said this alleged right “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment by the allocation of public funds.” In 1980 the U.S. Supreme Court said the Hyde amendment is an exercise of “the legitimate congressional interest in protecting potential life,” adding: “Abortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.” The Court’s only mistake here was its use of the phrase “potential life,” since unborn children are actually alive until they are made actually dead by abortion. More recently the court has said simply that the government “may express profound respect for the life of the unborn” by regulating abortion.
While Congress’s policy has been consistent for decades, its implementation in practice has been piecemeal, confusing and sometimes sadly inadequate. Gaps or loopholes have been discovered in this patchwork of provisions over the years, highlighting the need for a permanent and consistent policy across the federal government. In 2010 Congress passed major health care reform legislation with at least four different policies on abortion funding, ranging from a ban on such funding in one section of the bill to a potential mandate for such funding in another. These problems have arisen partly because various sections of the Affordable Care Act not only authorize but appropriate their own funds, thus bypassing the Hyde amendment and similar longstanding appropriations provisions.
Recent developments underscore a need to correct the abortion funding problems in the Affordable Care Act. In 2010 the Act was used to approve direct federal funding of elective abortion coverage under the state “high risk pool” program, until this was uncovered by pro-life groups. As state health exchanges have begun to operate, Americans are finding it difficult to find a plan without abortion coverage or even to get clear answers as to which plans those are – and they are discovering that despite public assurances to the contrary, they may be forced by the government to subsidize other people’s abortions as a condition for obtaining the health care their families need. And members and staff of Congress, previously assured that they would be free to choose from a full range of federally subsidized health plans without having to pay for abortions, are finding that they have been deprived of that freedom, contrary to longstanding federal law.
If a bill like H.R. 7 had been enacted before the health care reform debate began, that debate would not have been about abortion funding. A major obstacle to support by Catholics and other pro-life Americans would have been removed, and the final legislation would not have been so badly compromised by provisions that place unborn human lives at grave risk.
H.R. 7 would prevent problems and confusions on abortion funding in future legislation. Federal health bills could be debated in terms of their ability to promote the goal of universal health care, instead of being mired in debates about one lethal procedure that most Americans know is not truly “health care” at all.
To answer some questions raised about H.R. 7:
First, it does not eliminate private coverage for abortion, but specifically allows such coverage when purchased without federal subsidy.
Second, it does not create an unprecedented policy of denying “tax benefits” to abortion, but follows the Affordable Care Act in this regard. The ACA itself describes the provision of tax credits for abortion as a use of “federal funds.”
My prepared text provides additional details on these points and I would be happy to answer questions about them.
The Obama Administration’s contraceptive/abortifacient/sterilization mandate begins to be enforced against nonprofit religious schools, charities and health care providers on January 1, 2014. Congress must address this problem without delay. Members should be urged to co-sponsor the Health Care Conscience Rights Act (H.R. 940. S. 1204) and work for its approval as part of ‘must-pass’ bills or other legislation.
The NCHLA ActionAlert on this matter has been updated. Please see: nchla.org/actiondisplay.asp?ID=292. Please do what you can to encourage people to contact their Representatives and Senators. Currently Congress is working to pass an Omnibus Appropriations bill for fiscal year 2014 by January 15.
Archbishop Kurtz Asks President Obama for Temporary Relief from Burdensome Fines Against Ministries of Service to the Poor, Sick and Vulnerable
Archbishop Joseph E. Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops (USCCB), has asked President Obama to temporarily exempt religious institutions from crippling fines if their insurance plans exclude sterilization, abortion-inducing drugs and contraceptives.
Archbishop Kurtz also asked the President to consider that the U.S. Supreme Court already has agreed to hear two cases related to the mandate created by the Department of Health and Human Services (HHS). At least 90 cases have been brought to federal courts by individuals and institutions objecting to the imposition of the HHS mandate. Most of the decisions to date have favored those bringing suit.
Archbishop Kurtz’s request comes as the Administration has offered exemptions to numerous people and organizations having difficulty in implementing the ACA. Individuals who faced penalties for not meeting deadlines for enrollment have had deadlines extended. Businesses with 50 or more employees will not be fined if they drop or otherwise do not offer health insurance at all for 2014. After 2014, if these businesses do not offer a health insurance plan, they face a fine of $2,000 a year per employee.
Meanwhile, beginning as early as January 1, 2014, organizations such as church-sponsored universities, hospitals and social services, face a fine of $100 per day ($36,500 per year) per employee if they provide health coverage that does not include contraceptives, including abortion-causing drugs, and sterilization.
“The result is a regulation that harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith,” Archbishop Kurtz said. “The Administration’s flexibility in implementing the ACA has not yet reached those who want only to exercise what has rightly been called our ‘First Freedom’ under the Constitution.”
“I understand that legal issues in these cases will ultimately be settled by the Supreme Court,” he added. “In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1. I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.”
The entire letter follows.
Dear Mr. President:
On behalf of the Catholic bishops of the United States, I wish you and your family every blessing in this New Year. The bishops pray regularly that you and our other public officials will have renewed strength to fulfill the duties of your office with integrity, justice and compassion.
In this regard, your Administration recently relaxed the rules governing individual health plans under the Affordable Care Act, so Americans whose current plans have been canceled may claim a “hardship exemption” from some requirements. This is the latest in a series of actions to advance the ACA’s goal of maximizing health coverage, while minimizing hardships to Americans as the Act is implemented. For example, the ACA exempts small employers from the mandate to offer health coverage, and you have suspended this mandate for all employers through 2014.
One category of Americans, however, has been left out in the cold: Those who, due to moral and religious conviction, cannot in good conscience comply with the HHS regulation requiring coverage of sterilization and contraceptives. This mandate includes drugs and devices that can interfere with the survival of a human being in the earliest stage of development, burdening religious convictions on abortion as well as contraception. To date, at least 90 lawsuits representing almost 300 plaintiffs have been filed to challenge this mandate, and the Supreme Court has agreed to hear two of these cases in its current Term. Most lower courts addressing the issue have found merit in the plaintiffs’ claims and granted at least temporary relief, while some courts have denied relief or have yet to act.
Many Catholic and other nonprofit institutions caring for those in need through education, health care and other services are not exempt from the contraceptive mandate. For reasons articulated by the courts, the Administration’s final rule of July 2013 does not alleviate the burden on their religious freedom.
Please consider, then, the result of your Administration’s current policies. In the coming year, no employer, large or small, will be required to offer a health plan at all. Employers face no penalty in the coming year (and only $2000 per employee afterwards) for canceling coverage against their employees’ wishes, compelling them to seek individual coverage on the open market. But an employer who chooses, out of charity and good will, to provide and fully subsidize an excellent health plan for employees – but excludes sterilization or any contraceptive drug or device – faces crippling fines of up to $100 a day or $36,500 a year per employee. In effect, the government seems to be telling employees that they are better off with no employer health plan at all than with a plan that does not cover contraceptives. This is hard to reconcile with an Act whose purpose is to bring us closer to universal coverage.
The result is a regulation that harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith. The Administration’s flexibility in implementing the ACA has not yet reached those who want only to exercise what has rightly been called our “First Freedom” under the Constitution.
I understand that legal issues in these cases will ultimately be settled by the Supreme Court. In the meantime, however, many religious employers have not obtained the temporary relief they need in time to avoid being subjected to the HHS mandate beginning January 1. I urge you, therefore, to consider offering temporary relief from this mandate, as you have for so many other individuals and groups facing other requirements under the ACA.
Thank you for considering this urgent plea. Again, be assured of my continued prayers in the coming year as you seek to serve the American people.
Sincerely yours, Most Reverend Joseph E. Kurtz, D.D. Archbishop of Louisville President, United States Conference of Catholic Bishops
Pope highlights fraternity as ‘foundation and pathway’ to peace Cites excessive inequality, ‘globalization of indifference’ as threats to peace Urges all people to engage in dialogue, regard one another as brothers and sisters
Pope Francis’ first message for World Day of Peace offers a profound challenge to all people to see each other’s humanity and pursue dialogue and peace over war and conflict, said the chairman of the U.S. bishops’ Committee on International Justice and Peace. Bishop Richard E. Pates of Des Moines, Iowa, welcomed the release of “Fraternity, the Foundation and Pathway to Peace,” December 12.
“Pope Francis offers a message both simple and profound: when we fail to recognize other people as our brothers and sisters, we destroy each other and ourselves,” Bishop Pates said. “This challenges everyone from governments and corporations to individuals and families in the course of our daily lives.”
“In God’s family, where all are sons and daughters of the same Father,” Pope Francis wrote, “there are no ‘disposable lives.’” The pope drew on the story of Cain and Abel in Genesis to illustrate that “we have an inherent calling to fraternity, but also the tragic capacity to betray that calling.”
The pope listed war, globalization, threats to religious freedom, human trafficking, economic disparity and abuses of the financial system as examples of fraternity breaking down and leading to violence against people
“In disagreements, which are an unavoidable part of life, we should always remember that we are brothers and sisters, and therefore teach others and teach ourselves not to consider our neighbor as an enemy or as an adversary to be eliminated,” the pope wrote. “Give up the way of arms and go out to meet the other in dialogue, pardon and reconciliation, in order to rebuild justice, trust, and hope around you!”
The Vatican has posted the message, dated January 1, 2014, the celebration of World Day of Peace, online: www.vatican.va/holy_father/francesco/messages/peace/documents/papa-francesco_20131208_messaggio-xlvii-giornata-mondiale-pace-2014_en.html
Archbishop William E. Lori of Baltimore, chairman of the U.S. Conference of Catholic Bishops’ (USCCB) Ad Hoc Committee for Religious Liberty, welcomed the U.S. Supreme Court’s decision today to hear arguments in the cases of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties. The U.S. government and the Hahn family, Mennonite owners of Conestoga Wood, a cabinet-making company, respectively, petitioned the Supreme Court to review these cases. The Court will consider the legality of the U.S. Department of Health and Human Services (HHS) “preventive services” mandate, which requires virtually all employers to include female sterilization and all drugs and devices approved by the U.S. Food and Drug Administration (FDA) as contraceptives in their employee health care plans.
“The Supreme Court’s review of these cases highlights the importance of this conflict between the federal government and people seeking to practice their faith in daily life,” said Archbishop Lori. “We pray that the Supreme Court will find that the Constitution and the Religious Freedom Restoration Act protect everyone’s right to religious freedom. We are encouraged by the advances in the lower federal courts so far in cases involving family-owned companies as well as non-profit religious organizations. On behalf of the Ad Hoc Committee for Religious Liberty, I would like to thank all of the litigants—including those who run diocesan service ministries as well as the lay faithful who run closely-held businesses—for their courageous actions in seeking religious liberty in courts around the country.”
The HHS mandate requires family-owned businesses like Hobby Lobby and Conestoga Wood to cover abortifacient and contraceptive drugs and devices in their employee health care plans, even if providing those particular items violates the religious beliefs of the individuals who own and operate the company. In a unanimous “Special Message” on the HHS mandate issued last month, the U.S. bishops reaffirmed their opposition to a mandate that “compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.”
These cases are among at least 84 lawsuits filed by over 200 plaintiffs against the HHS mandate.