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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