New Fight Against the HHS Mandate

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The Thomas more Society announced Tuesday that it will petition the Supreme Court to hear a case by a Catholic-owned company against the U.S. government.

Calling the requirement that Catholic and other business owners pay for insurance coverage of drugs and operations they object to on religious grounds “a mockery of the very notion of religious freedom,” TMS President Tom Brejcha said the law “cannot be tolerated in a society that professes to honor fundamental civil liberties.”

John Kennedy, CEO of two family-owned equipment manufacturing companies (the Autocam Corp. and Autocam Medical) in Michigan, is a devout Catholic. Autocam has always contracted with Blue Cross/Blue Shield of Michigan for a specifically designed a health insurance plan excluding contraception, sterilization, abortion, and abortion-inducing drugs.

In the original suit, the attorneys claimed that the family’s religious liberty rights, as guaranteed by the Religious Freedom Restoration Act (RFRA), were violated by the mandate. A Michigan court denied their claim and request for an injunction, and last month a Sixth Circuit Court of Appeals in Cincinnati upheld the decision.

In a troubling decision for all business owners, the justices ruled that Autocam — and not its owners — was required to provide the disputed coverage, and that Autocam had no religious freedom rights. Additionally, the court ruled that owners of a corporation lack standing to sue under the RFRA.

“We are without authority to ignore the choice the Kennedys made to create a separate legal entity to operate their business,” Judge Julia Smith Gibbons wrote in the court’s opinion, asserting that just as incorporating protects the shareholders/owners of a corporation from being sued as individuals, it also prevents them from exercising their religious liberty rights as individuals where the business is concerned.

The judges further ruled that the Autocam companies, as entities, did not possess religious liberty because they are for-profit, secular enterprises. The Kennedy family’s claim that the way they operate their company is an extension of their beliefs, Gibbons wrote, “seems to abandon corporate law doctrine at the point it matters most.”

The Thomas More Society joins with the Kennedy family, the Catholic Vote Legal Defense Fund, and Michigan law firm Miller Johnson in asking the Supreme Court to hear the case, calling the Court of Appeals verdict too narrow and saying that interpretation of religious freedom would confine it within the walls of a house of worship.

The RFRA, the Kennedy family’s attorneys say, prohibits the federal government from substantially burdening the free exercise of religion unless there is a compelling reason to do so, and then only in the least burdensome way.

There is no compelling reason for the United States government to require employers to provide their employees with birth control, sterilization, and earl abortifacient drugs, the Society argues, because they are already affordable and readily available. If there had been compelling reasons for the federal government to insure that all women be able to sterilize themselves at no out of pocket expense, the attorneys say, it could do so in many ways less burdensome to employers’ religious freedom: directly providing free contraceptives, abortifacients, and sterilizations, for instance; or giving subsidies to women who could not afford to buy them.

Declaring that both morals and money-making have a role to play in the marketplace, Brejcha says that religious faith shapes, informs and sustains the morals of business owners as well as of employees, and that a robust or meaningful religious faith must be practiced as well as professed.

“Indeed, our criminal laws demand that American businesses as well as their owners act in accord with myriad laws designed to serve the public welfare and the common good, rather than maximization of profits,” Brejcha says. “People of faith must not be coerced to check their religious liberties at the door when they enter the commercial marketplace.”

When everyone from activists to politicians calls on businesses to have a “corporate conscience” when it comes to environmental, social, and labor laws, it is odd that the courts have suddenly turned a blind eye to corporate conscience when it comes to providing elective drugs and services to healthy people for religious reasons.

Especially after Citizens United, a hotly contested case about political free speech resulting in a Supreme Court ruling that business owners do not lose their free speech rights because they are engaging in the marketplace as corporations, it seems odd that the United States government is willing to face scores of lawsuits over another corporate First Amendment issue.

Unless that’s the idea — to divorce people from their rights as soon as they engage in commerce, at least when incorporated as a group. After all, this is the same administration that now defines not engaging in commerce as “engaging in commerce.”

image: Richard Thornton / Shutterstock.com

Gail Finke

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Gail D. Finke is an author and mother living in Cincinnati, where she writes for The Catholic Beat at Sacred Heart Radio.

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  • Fred

    I love your style. Very well written Gail. Keep up the good work.

  • JMC

    The ruling of the court concerning the “fictitious person” of the corporation is precisely why a number of extremists consider corporations to be immoral. But the corporation is only a fictitious person for legal purposes. It is still run by individuals, and those individuals are responsible before their Creator for their actions. The owners of Autocam are trying to run their business with that in mind, and the Almighty Government is trying to prevent them from doing so.
    It is always to be remembered that compulsion is the devil’s tool. There’s a Mormon tale that illustrates this beautifull – which, by the way, only makes sense if you don’t believe in the unity of the Trinity, but that Jesus is an entirely separate entity from God the Father, which is what the Mormons believe. The legend has it that, at the Creation, when God planned to send His representative to Earth, Jesus and Lucifer were competing for the honor. Lucifer boasted that he would force the people to obey, while Jesus proposed simply to bring the Law to the people in the hope that they would choose to follow it of their own free will. Lucifer’s boast, according to the story, was one of the reasons for his fall.
    In insisting on this HHS mandate, the government is compelling people to sin, whether they want to or not. Martyrdom, we must remember, does not always involve death or even physical danger. There are also what I call the “little martyrdoms” – from mere social ostracizing all the way up to legal battles like this one. Take, for example, the Catholic adoption services that have had to shut their doors rather than adhere to state laws requiring them to permit gay couples to adopt. You know that was a major sacrifice for people who had devoted their entire lives to the welfare of children. And sacrifice is the root of martyrdom.
    We can all participate in Autocam’s battle by offering “little martyrdoms” of our own. Forego the video games for a few days. Resist the snacking impulse. Pass up Monday Night Football. Consciously unite them to Christ’s sacrifice of His very life on the Cross for all of us, for the general intention of preserving religious freedom in our country, and specifically for the success of the Thomas More Society’s efforts of Autocam’s behalf.
    The devil is in the mood for a final battle, and this mandate is one sign of it.

  • Gail Finke

    “…the corporation is only a fictitious person for legal purposes. It is still run by individuals, and those individuals are responsible before their Creator for their actions…” You summed that up very nicely. Corporations and groups are all made up of individuals, and to say that people lose their rights as soon as they form a group to do business is a dangerous precedent as well as a fallacy. What about when people form a group to do charity, or when they form a group to pursue a common (non-commercial) interest — do they lose their rights then? What about when they form a group to peaceably assemble — have they lost their rights then? Are rights things that can only be held by individuals, and then only when they are not doing anything?

  • Anja

    There are only two reasons to object to these coverages 1) Greed. They don’t want to pay for it so the profess religious objections. 2) Religious bigotry. They are so insensitive and bigoted that they cannot respect or tolerate the beliefs of others and feel the need to force acceptance of their limited set of morals by denying vital & necessary medical coverage to those over which they have the power.
    SHAME!!!

  • Ituri

    Employers do not get to pick and choose what healthcare services an employee gets. That isn’t how religious freedom works. It is NOT about having the freedom to oppress your employees with your religious beliefs, it’s about THEM having the freedom from YOUR beliefs, the same as you are not oppressed by theirs. You do not get to decide if women get birth control just because you’re Christians, the same as you don’t get to choose whether people are covered for blood transfusions if you’re Jehovahs Witnesses. And no, corporations are not holy organizations that are exempt from the law just because you think you’re special.

  • Gail Finke

    Yes, employers do get to pick and choose what healthcare services an employee gets. That’s what “employer-paid benefits” means. And no, not having your birth control or sterilization paid for by your employer does not oppress you. You can buy it yourself, just like you buy everything else. The question is not whether companies are exempt from “the law,” but why a law that clearly violates freedom of religious protections was ever made in the first place. The Bill of Rights clearly spells out what the federal government is not allowed to do, and this law violates it. Therefore, the law should be struck from the books. Employers should be allowed to include or exclude these drugs and services — all of which are elective — which was the case before the law was made. You can buy whatever you want to buy, but the Bill of Rights prohibits making me pay for your birth control or sterilization if my religion forbids me from doing so.

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