Law in Contemporary Society

Quasi-Religious Nonprofits and Healthcare on Trial?

Skeptical of desperate assurances, my eyebrows raised when I received an e-mail from my alma mater last week, Notre Dame. The university's president informed that the school, along with forty-three Catholic organizations, had filed a lawsuit against the U.S. Departments of Health and Human Services, Labor, and Treasury regarding the healthcare mandate. The suit challenges the mandate's requirement that employers "provide in their insurance plans abortion-inducing drugs, contraceptives and sterilizations, which are contrary to Catholic teaching." And then, the jaw-dropping sentence: "Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services."

Lawyers at Jones Day, though, likely wrote that sentence. The firm represents Notre Dame and the dozens of Catholic organizations in this matter pro bono. Therefore, just about every complaint filed in just as many district courts begins with the following claim: "This lawsuit is about one of America's most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception."

Notre Dame's complaint alleges nine counts under which the healthcare mandate violates the conscience of Catholic, non-parochial, institutions. At issue is the definition of "preventive care," especially that of women. The mandate, as passed by Congress leaves the term undefined. However, the Weldon Amendment to the mandate adds that HHS cannot receive federal funds available under the mandate to the agency if the "agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.” Subsequently, HHS issued its regulations which included abortion-inducing drugs, contraceptives and sterlizations as part of "preventive care" to be covered by all health insurance plans.

A narrow exception was crafted, however, that would extend practically only to church communities that employ their own faithful and whose primary purpose is to worship. Under the applicable tax codes to the exemption, Notre Dame does not qualify since it is an educational non-profit organization. Here is the quandry that Notre Dame and Catholic hospitals face: they are too "catholic" (which literally means "universal") in their way of practicising Catholicism. Notre Dame has to argue that while it is not itself a church, its mission to educate all people, regardless of creed, is an expression of Christianity. Somehow, the court must find that a Catholic institution is a proper auxiliary of a mandate-exempted church. Yet, unlike currently exempted charitable auxiliaries that derive their finances primarily from non-governmental sources, universities are significantly entangled with government funds, such as federal student aid.

Notre Dame argues that the regulations HHS issued violate the Constitution and the Religious Freedom Restoration Act, which protect religious entities from overbearing and oppressive government action. Moreover, the complaint alleges that HHS violated the Administrative Procedures Act in its rulemaking: in coming to a definition and regulation concerning "preventive care," HHS failed to allow for proper notice-and-comment periods and in haste handed its rule-making to the Institute of Medicine, a non-governmental body. Even the dissent to the Institute's report noted that rule-making process on the issue lacked public transparency.

If it is true that courts generally decide cases on any other grounds before they reach the Constitution, and if the allegations of arbitrary rule-making are true, then the nationwide cast challenging the mandate has a fair shot of winning their case on administrative grounds. The effect of plaintiffs' victory would be to re-ignite the administrative rule-making process. Because it seems implausible that forty-three district courts would agree to jury trials on the same legal issues, with Jones Day representing all plaintiffs, the more plausible point of these suits is to force the Obama administration into dialogue. The complaint admits that abortive "services are freely available in the United States, and nothing prevents the Government itself from making them more widely available." But, they argue, "the Government cannot require Plaintiffs to violate their sincerely held religious beliefs by providing, paying for, and/or facilitating access to those products and services." If this legal outcry was meant to establish a less burdensome alternative that ensures access to reproductive preventative care without having non-profit religious self-insured employers paying the bill or violating the law, then what would this alternative look like? And since such an alternative would disproportionately affect women, how can these complaints pretend not to be really about women?

The correspondence from the United States Conference of Catholic Bishops to HHS lacks the alternatives allegedly available to the Government. The closest "alternative" is governmental coverage, cited by The Becket Fund:

The government admits these services are widely available in "community health centers, public clinics, and hospitals with income-based support." The federal government already spends hundreds of millions of dollars a year funding free or nearly free family planning services…

The plaintiffs' alternative is a system whereby female employees will have some of their medical needs covered by their insurance, which they pay consideration for through their employment and co-payments. By passing reproductive health issues to the government, as an employer, Notre Dame regulates what constitutes female health and illness.

I pose two alternatives: making this issue about personal autonomy instead of religious liberty and universal healthcare. Respecting the moral agency of persons requires the acknowledgment that people err. If the plaintiffs are inspired by a church that is in the business of faith formation and reconciliation, then that the plaintiffs as employers are required to fund instruments of what they believe to be sin should not get in the way of their mission to help shape the reproductive decisions women may have to make one day. Lastly, what would be more catholic, or universal, than universal healthcare? While the alternative may be beyond the scope of a challenge to healthcare reform, universal healthcare would evaporate these conflicting crises of conscience and afford both genders equitable levels of healthcare.

-- By ArleneOrtizLeytte - 04 Jun 2012

You have a number of interesting things to say, but the bulk of your room is given over to the details of a lawsuit whose context you don't explain, but which if understood properly will save trouble.

This is a lawsuit designed to preserve a political issue. The Church and its institutions comply with laws or regulations equivalent to the federal rule in 28 states, and they don't challenge those rules constitutionally because they know they will lose. "Secular regulation for secular purpose" is the relevant incantation in free exercise cases, and that's that. The point here is to get a hook for a political campaign. So the complaint alleges anything and everything that sensible counsel would open with, knowing that delay is the only thing that need fall out of the litigation. Analyzing the details makes sense only if we are directly interested in a legal issue. The Constitutional issue is mere makeweight, legally, though it is all that matters politically. The RFRA issue is insubstantial. The APA issue is also built from balsa wood and postage stamps. But if the court wants an excuse to punt to the agency, which will happen if the administration changes, for example, it will serve.

Your reader is probably dimly aware that the whole thing is an election-year setup, but you do her no favors by not explaining the context yourself. Then the reader knows what scale of detail she wants to pay attention to. Probably that's where you get a chance to express one of your interesting other ideas. Because the details of the litigation will not be what are on your reader's mind at that point.

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r3 - 22 Jan 2013 - 20:09:48 - IanSullivan
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