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The Church Pushes Back

By Mark L. RienziThe National Review
Posted on: Monday, June 4th, 2012
Original publication date: June 4, 2012

It was all too predictable that the filing of twelve different lawsuits by 43 different Catholic entities was almost completely ignored by traditional news outlets. One would think that this type of strong, coordinated legal attack in federal court, filed by one of the nation’s leading law firms (Jones Day) on behalf of the nation’s largest single religious denomination, would be deemed a top news story. The networks apparently disagreed — as did the New York Times, which ran the story on page A17.

But then the editorial writers at the Times eventually did grant the lawsuits prominent coverage — to criticize the Catholic Church for defending its rights. Their lead editorial on May 27 concludes that the mandate doesn’t present any actual threat to religious liberty. In their view, the “real threat to religious liberty” instead “comes from the effort to impose one church’s doctrine on everyone.”

The Times is wrong in every conceivable way about the mandate, religious-liberty law, and the lawsuits.

First, of course the Church’s lawsuits do not seek to “impose one church’s doctrine” on anyone, much less “everyone.” The question is not whether contraceptives and abortion-inducing drugs will remain legal and available — it is whether religious organizations can be forced to provide free access to them. No one is forced to work for a Catholic institution. And those who do are perfectly free to get these drugs on their own, for free from the government, or from the many sources that willingly distribute them. Indeed, in no other context has anyone ever suggested that an employer’s failure to distribute an item for free is “imposing doctrine” on anyone. Catholic institutions also do not give out pornography, Big Macs, or trips to Disneyland. Failure to provide these things for free does not impose anything on anyone or restrict anyone’s freedom in any way. Overheated claims to the contrary cannot be taken seriously.

Second, the Times suggests there is something impermissible about the lawsuits’ asking for exemptions from “generally applicable” laws. It is hard to imagine anyone calling Obamacare “generally applicable” with a straight face. Anyone who watched the process leading to the law’s passage knows that it is larded full of special treatment and favors for different groups to secure their support. And since passage, the administration has granted thousands of waivers from the law’s provisions. Worse, the government freely admits that grandfathered plans (which are excluded to make good on the president’s political promise that “if you like your plan you can keep it”) will cover more than a hundred million people yet remain completely exempt from the mandate. In short, Obamacare is about the least generally applicable law you can imagine.

Third, even if the mandate were generally applicable, federal law is clear that an exemption is required even from generally applicable laws unless imposing a burden on religion is the “least restrictive means” of advancing a “compelling” government interest. The Times asserts, without explanation, that the mandate meets this demanding standard “by promoting women’s health and autonomy.” But the compelling-interest test is not satisfied simply by naming some generally important interest — instead, the Court has explained that this test is “the most demanding test known to constitutional law” and requires the government to identify an “actual problem” in need of solving.

Here, the administration’s repeated claims about the popularity of contraceptive use, and the wide variety of sources from which contraceptives are already available, belie any claim that there is an access problem in the first place.

Fourth, even if there were some problem with access to what Secretary Sebelius calls “the most commonly taken drug in America by young and middle-aged women,” there is no reason to think that the “least restrictive means” of addressing that problem would be to force unwilling religious institutions to provide access. As the government demonstrates each year through its Title X programs, it is perfectly capable of distributing contraceptive drugs directly when it wants to. And even so, the Supreme Court just last term explained that “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.”

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About Preserve Religious Freedom

This lawsuit is about religious freedom and our ability to serve the public, not about contraception. The Church maintains that the First Amendment protects the Catholic Church's ability to serve the public in accordance with its faith and to operate its religious institutions without government interference. The argument challenges the way the U.S. Department of Health and Human Services (HHS) defines what is, and is not, a religious institution. By including an exemption at all, the government apparently agrees that, in keeping with decades of practice and precedent, religious institutions should not be compelled to purchase drugs or procedures that violate deeply held religious or moral beliefs.

But, the Administration's HHS mandate defines religious ministry so narrowly that religious schools, hospitals, and social services don't qualify as religious, and must therefore provide these drugs and procedures. This violates the First Amendment's guarantee of religious freedom. It forces religious organizations to sacrifice their beliefs in order to be able to continue their mission of serving the public. Read more about the plaintiffs filing this lawsuit here.

Preserve Religious Freedom
c/o Archdiocese of Washington
P.O. Box 29260
Washington, DC 20017-0260

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