Last week two Sidney, OH, produce companies became the latest of more than 40 states, Catholic dioceses, hospitals, Catholic and non-Catholic colleges and universities, and private companies to challenge the United States government over a Department of Health and Human Services mandate that nearly all employer-provided health insurance plans include free coverage of birth control devices and drugs, voluntary sterilization, and “morning after” abortifacient drugs.
The breadth of the entities suing — from state governments to private companies, as well as religiously affiliated organizations of all kinds — is vast. Nearly every US Circuit court is hearing cases or appeals. In many ways, the 44 cases represent a huge number and variety of challenges to the mandate.
But as a percentage of the number of organizations and companies affected by the mandate, it’s small. Why haven’t more suits been filed? And why, when the first cases were filed a year ago, did others wait so long to file?
“A lot of people aren’t aware it will affect them,” says Ed White of the public interest law firm the American Center for Law and Justice (ACLJ). Lead Counsel for the two most recent cases, filed Jan. 25th on behalf of Freshway Foods and Freshway Logistics, White says many business owners don’t know about the mandate at all, or don’t find out that it applies to them until their insurance contracts come up for renewal.
Because each company’s insurance renews at a different date, he says, many business owners still don’t know that they will be asked to pay for procedures and drugs they may have specifically asked to exclude in the past.
The Ohio produce companies that employ nearly 400, White says, are owned by a Catholic family who has never paid for the disputed drugs and services in its employee health plans. White says the HHS mandate puts the family in a “moral vise” — forcing them to choose between the teachings of the Catholic Church that they’ve always followed, and paying fines of $40,000 a day.
Many employers are waiting to see what will happen with the cases already filed, and most don’t have the money to sue the US government. Many who would like to do so don’t know that public interest law firms will handle their cases without charge. But as the continued suits show, people affected by the mandate continue to find it an intolerable violation of their religious liberty.
“These cases are defining for American law,” White says. “These cases are big deals.”
What’s the Big Deal?
The penalty for employers not providing the mandated insurance coverage is either paying $100 a day for each employee, or dropping insurance altogether and incurring a $2,000 fine per employee. Because $2,000 is less than most companies spend on insurance for each employee, many people who don’t think the coverage is immoral are mystified by why companies, churches, hospitals, and others would sue rather than pay the tax.
But whether the fine is $2,000 or $2, the principle is the same: The HHS mandate requires Catholics and many others to violate their religious beliefs or pay for the privilege of following them.
“You can’t monetize somebody’s conscience,” says Emily Hardman, spokesperson for a public interest law firm handling several HHS cases, the Becket Fund for Religious Liberty. “You can’t say, ‘I will give that religious belief a value of $500, and if it’s not fined over $500 it’s not a burden.’”
American legal precedent has established that before the government can require a citizen to violate his or her conscience, it must be because of a compelling issue of national interest, and obeying it cannot put a substantial burden — directly or indirectly — on the person obeying it. The ACLJ and the other public interest law firms handling HHS cases contend that none of these apply.
“The history of our country is that even during war, when we need bodies in our army to protect us, we give respect to religious views,” says White. If people who believe war is wrong are allowed to serve as conscientious objectors even when the country is threatened, what national interest could be more compelling?
In arguments defending the government for the cases that have been heard so far, White says, lawyers have generally argued that the compelling interest at stake is “gender and healthcare equality” — in other words that women need to be provided with no-cost birth control devices and drugs, voluntary sterilization, and “morning after” pills in order to be equal to men — and that providing them or paying a penalty is not a burden.
Peter Breen, Executive Director of the Thomas More Society public interest law firm specializing in religious liberty cases, says that any fine at all constitutes a substantial burden. “Being able to afford a tax doesn’t make it less substantial,” he said. “If the government decided to tax you for not going to church, everyone would agree that was a violation of religious freedom” no matter how small the tax. He says the same principle applies in HHS cases: $100 a day or one cent a day, it is the tax itself that’s the problem, not the amount.
Another common opinion about the mandate that opponents say is wrong is that employee benefits are just like money — that what an employee does with his or her insurance coverage is not the employer’s business, and so what an employer considers immoral doesn’t matter.
That’s simply wrong, White says. “The issue is not what employees do, the issue is that I as — say, a manufacturer of plumbing parts that employs 100 people — have to sit down with my insurance company and contract to provide services that go against my religious beliefs, and I have to pay for them.”
White finds it helpful to use a different example: “It’s as if the government told me, as a business owner, that I had to go to the local adult book store and buy every employee a $100 gift certificate,” he explains. “Even if none of the employees ever use the gift certificate, the problem is that I have to buy it in the first place.”
In either case — real medications or surgeries or hypothetical adult bookstore purchases — what employees do with their own money is not the employers’ concern. But being made to contract and pay for them is.
Erin Mersino of the Thomas More Law Center (TMLC) is Lead Counsel for the case filed by Legatus, the country’s largest organization of Catholic business owners, and one of its members. “The main issue is that this law violates individual freedom of religion by requiring all employers to either violate the law or their consciences,” she says.
“It’s a direct mandate on employers, and whatever you think of the government’s goals, there were other ways of achieving the government’s goals. It’s remarkable that this is the state of law right now.”
The mandate is of vital interest to all Legatus members, she says, and TMLC’s appeal of the judge’s initial ruling denying an injunction to the group also asks for Legatus’s suit be given institutional standing. That would mean that it covered all 4000 members, rather than just itself as a non-profit organization.
If that appeal was granted, the variety and number of entities covered by the suits would be increased exponentially.
By mandating that all employers with more than 50 full-time employees buy them insurance, and then requiring that that insurance violates a great many people’s consciences, White says the United States government is demanding that “every business owner, every bishop, every nun, you name it” gives up their freedom to exercise their religion or be fined until they go out of business.
The real losers, public interest law firms say, are not companies but their employees. Because the government has also redefined a full-time employee as working 30 hours a week rather than 40, many companies are already choosing to reduce employee hours to less than 30 a week in order to avoid the insurance question altogether.
“The government would prefer that employees have no healthcare at all,” says Breen, of the Thomas More Society. “It’s absolutely ludicrous.”
White concurs. “The employees are the ones really being punished,” he says. “They say people need this for gender and healthcare equality, but studies show that almost all women who want these services already have them, and of those who don’t, only 2% say cost is an object.
“It’s not about cost or healthcare. The fact is that this is a Progressive social movement aimed at eradicating religious views.”
Hardman, at the Becket Fund, says every American should oppose the mandate on principle. “Government should not force people to violate their consciences,” she says. “The fact is, our government is bullying people at the cost of eliminating people’s businesses, and at the cost of services to the poor, to the hungry, to the vulnerable.
“Everyone should be concerned about this issue — atheists should be concerned. If government can do this, what can’t it do?”