HHS Suit Win for NY Leaves More to be Settled

shutterstock_90622840The Archdiocese of New York and five related entities won a victory against the federal government’s HHS mandate this week, when a U.S. District Court found that it violates the First Amendment and does not satisfy the Religious Freedom Restoration Act (RFRA).

U.S. District Judge Brian Cogan granted four of the six entities permanent injunction agains the mandate that employers provide birth control drugs and devices, voluntary sterilization, and “morning after” pills to all women employees, but ruled that the other two (both dioceses) were not subject to the mandate and so had no claim.

It is the first ruling to grant a permanent injunction to a religious non-profit, and the third injunction (the other two, for the Dioceses of Pitssburgh and of Erie, PA, are temporary) granted to a Catholic diocese according to the Becket Fund for Religious Liberty.

One more non-profit case has resulted in a temporary injunction —

Geneva College. More than 20 non-profits have had their cases dismissed for procedural issues such as timing. Twelve of these have been reinstated or refiled. None have lost.

All other cases have involved for-profit companies.

The New York case involved six plaintiffs:

  • The Archdiocese of New York
  • The Diocese of Rockville Centre
  • Cardinal Spellman High School
  • Monsignor Farrell High School
  • ArchCare (a Catholic healthcare system for the poor)
  • Catholic Health Services of Long Island (CHSLI)

Judge Cogan found that the latter four did not qualify as “religious employers” under the Affordable Care Act’s definition, but were “eligible organizations” for the administration’s so-called accommodation to the mandate. “Religious employers” are exempt from the mandate; under the “accommodation,” eligible organizations do not have to pay for the disputed coverage. Instead, that coverage must instead be provided by the organizations’ insurance company or provider.

As “eligible organizations,” the four entities argued that their religious freedom was being violated because the covered services would still be provided as a direct consequence of their employing the covered women.

Judge Cogan’s 41-page opinion swfitly sums up the plaintiffs’ argument as “that the Mandate renders them complicit in a scheme aimed at providing coverage to which they have a religious objection… independent of whether the scheme actually succeeds at providing contraceptive coverage,” then proceeds to knock down the administration’s arguments one after the other.

Some of these arguments are familiar by now:

Uniform rules: Simply ensuring that a federal law is applied uniformly is not reason enough to violate the First Amendment, Judge Cogen says, and in any case HHS has already exempted millions of people. “Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs.”

Individual justification of exemptions: Similarly, because HHS justifies each of the exemptions it has already granted for a different reason, Judge Cogen says, it cannot refuse to grant an exemption in the case of religious employers by arguing that it the mandate must be applied equally to all.

Compelling interest: To override First Amendment protections, a law must serve a “compelling interest” — in other words, it must be extremely important to the nation. An employer’s not paying for the disputed drugs and services would not deny them to anyone, the judge found, but would simply continue the “status quo” of people paying for them. Having available drugs and services provided for free, Judge Cogan said, was not a sufficiently compelling interest.

Least restrictive means: In addition to serving a compelling interest, a law that violates the First Amendment must also do so by the “least restrictive means.” Judge Cogan says that “…numerous less restrictive alternatives are readily apparent,” such as that the government “could provide the contraceptive services or insurance coverage directly to plaintiffs’ employees, or work with third parties – be it insurers, health care providers, drug manufacturers, or non-profits – to do so without requiring plaintiffs’ active participation. It could also provide tax incentives to consumers or producers of contraceptive products.”

Four are particularly troubling:

Self-certification: The “accommodation” announced by HHS requires that a third party (such as an insurance company) provide it to the covered employees. However, during the case the government testified that no one would actually check that the coverage was provided. Employers would “self-certify” — send in a form that said it was being provided.

Judge Cogan said that self-certification “fatally undermines any claim that imposing the Mandate on these plaintiffs serves a compelling governmental interest… In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.”
De minimus: HHS lawyers claimed that any religious freedom violations were insignificant (“de minimus”) because all non-religious employers had to do was fill out a form. Judge Cogan rejected this argument, because it would require the court to decide what was and what was not an acceptable level of violation of religious freedom. “There is no way that a court can, or should, determine that a coerced violation of conscience is of insufficient quantum to merit constitutional protection.”

Cost and effectiveness: The government argued that although other alternatives to an employer mandate existed, they were either more expensive or less effective, and those considerations overrode religious freedom.

Judge Cogan found that HHS presented only vague financial claims, so the expense of alternatives couldn’t be determined. But he said a more expensive program or a program that was more difficult to operate because it would require additional laws to be passed for it to work or to be legal did not, singly or together, mean that the government has the ability to bypass the Constitution.

“This argument makes no sense,” he wrote. “It would set a dangerous precedent to hold that if the Executive Branch cannot act unilaterally, then there is no alternative solution.”

As the first permanent injunction and the most decisive victory yet for religious employers (as the general public defines the term), the case is a big victory. As an attempt to achieve legal recognition that the Catholic Church is an institution that exists to both promote the worship of God AND to carry out charitable activities, the case is not a success.

Judge Cogan found that, as they were exempt from the mandate, the dioceses’ other claims did not apply. While the case had claimed that the mandate was an attempt to split the religious part of the Church from the charitable and educational part of the Church, the Judge ruled that “the Mandate does not ‘split’ the Catholic Church in two – it does not require any change to the religious structure, hierarchy or organization of the Church and its affiliated organizations. At most, it could ‘split’ the Church’s health plan in two.”

This narrow finding sees the dioceses and the eligible organizations as separate from each other, and from the Catholic Church as a whole, in a way that may make sense for Protestant and non-denominational Christians, but that is incompatible with Catholicism. A Methodist hospital, a Lutheran school, and a non-denominational megachurch have no connection to each other, but an archdiocese, a Catholic hospital run by a religious order, and an independent Catholic high school are all part of the Catholic Church even though their finances and governance are separate from each other.

This is a matter of fundamental identity, and it is one that has yet to be fully recognized or understood by American law.

image: littleny / Shutterstock.com

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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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