The Obama Admininstration has submitted its response (available here) to the lawsuit that the Becket Fund filed on behalf of Belmont Abbey College in the matter of the contraceptive mandate. In essence, the Administration argues that the issues raised in the suit are not yet ripe for adjudication because (1) there is no allegation that the college’s health plan will not or cannot be grandfathered (and hence exempt from the regulation), (2) there is a safe harbor for all non-exempt plans until August 1, 2013, and (3) the Admininstration has not yet issued its final regulations. Because there is no imminent harm, the plaintiffs lack the standing to sue.
The folks at the Becket Fund have a rejoinder for the court of public opinion:
On Thursday, the Obama administration filed its first legal response to Belmont Abbey College’s lawsuit challenging the controversial contraception mandate. This was its first opportunity to explain to the court and the country why the mandate is not illegal and unconstitutional.
So what did the administration say? Not that the mandate is legal; not that the mandate is constitutional. Instead, it asked the court to duck the key issues because the administration has “indicated that they will propose and finalize changes to the regulations” at some unspecified date in the future.
“Apparently, the administration has decided that the mandate, as written and finalized, is constitutionally indefensible,” said Hannah Smith, senior counsel at The Becket Fund for Religious Liberty, which represents Belmont Abbey College. “Its only hope is to ask the court to look the other way based on an empty promise to possibly change the rules in the future.”
Having signed (with many others more prominent and learned than me) the “unacceptable” letter available on the Becket Fund’s site, I share the organization’s concerns about the mandate, but as a matter of law the Administration may well be right that the issues aren’t ripe for adjudication. It’s an essential feature of our legal system that merely speculative or prospective harms can’t be litigated. All this means is that Belmont Abbey may have to wait until it can allege an imminent harm before it refiles the suit. Despite the President’s professed distate for “kicking the can down the road,” he may well have succeeded in doing so here, buying time until after the 2012 election.
None of this means that the Administration’s response isn’t troubling. Leaving aside the palpably absurd and “unacceptable” dodge of requiring the insurer to provide “free of charge” something the purchaser of the plan can’t in good conscience provide, there’s the admission that the explicit aim of the Administration’s regulations is to increase the use of pills and procedures that the relevant employers find morally and religiously unacceptable.
By requiring coverage for recommended preventive services and eliminating cost-sharing requirements, Congress sought to increase access to and the utilization of recommended preventive services. Increased use of preventive services, in turn, will benefit the health of individual Americans and society at large. Individuals will experience improved health as a result of reduced transmission, prevention or delayed onset, and earlier treatment of disease. Healthier workers will be more productive with fewer sick days. And increased utilization will result in savings due to lower health care costs. [citations omitted]
Stated another way, the Administration’s brief contends that social utility trumps religious and moral scruples. The aim of the regulations is to “reduce unintended pregnancies (and the negative health outcomes that disproportionately accompany unintended pregnancies) and promote healthy birth spacing.” The scruples of employers to the contrary notwithstanding, the Administrations wants more people to plan their parenthood.
Then there’s the regulation’s grandfather clause:
A grandfathered plan is a health plan in which an individual was enrolled on March 23, 2010 and that has continuously covered an individual since that date. A grandfathered plan may lose its grandfather status only if, compared to its existence on March 23, 2010, it eliminates all or substantially all benefits to diagnose or treat a particular condition, increases a percentage cost-sharing requirement, significantly increases a fixed-amount cost-sharing requirement, significantly reduces the employer’s contribution, or imposes or tightens an annual limit on the dollar value of any benefits. [citation omitted]
In other words, the minute (in order to save money) a plan changes in any way (higher copays, for example), it loses its grandfathered status and must become fully compliant with whatever regulations the Obama Administration then has in place. An organization can keep its “old” plan, assuming it can find an insurer to provide it, but it may have to pay an exceptionally high price to do so. Under the Affordable Care Act, the one thing that may not be affordable is a clear conscience.
The Obama Administration may have evaded some potentially unfavorable judicial proceedings, but there’s nothing in its response that gives us any expectation that institutions like Belmont Abbey won’t be compelled to go back to court the moment the harm is–from the court’s point of view–”imminent.”
As far as our religious freedom is concerned, the worst is yet to come.
February 17th, 2012 | 5:46 pm
This statute is doubleplusgood. I hope it soon provides for free Malthusian belts for all.
February 17th, 2012 | 7:36 pm
From what I understand, the regulation has already gone into effect, so I don’t see how the issues aren’t ripe yet (though I’m no expert on this subject). Granted, they won’t be able sue on any issues involving the promised “accommodation”, the plaintiffs should still be able to challenge the regulation itself as it is written.
It seems wrong to me that the government can dodge a case for not being ripe simply by promising to change the regulation.
February 18th, 2012 | 10:36 am
It seems wrong to me that the government can dodge a case for not being ripe simply by promising to change the regulation.
Here is to hoping it seems wrong to the courts, as well.
February 18th, 2012 | 2:38 pm
It’s deliberately not “ripe” yet. The administration has put it off until the election is safely over. It is a good way to avoid unpleasant light being put on the facts via lawsuits they might lose. In the meantime, they can drag their heels, spin, and obfuscate to their hearts’ content.
If they play their cards right, opposition smack talk won’t gain any traction, and voters need not hear any pesky First Amendment arguments until next January or so.
February 18th, 2012 | 4:36 pm
In its complaint Abbey college states as fact, “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation, whether as an end or as a means”—including contraception and sterilization—is a grave sin.” So its objection is that the mandate that insurance providers now cover something which allows its members to get contraction. Now this mandate obviously does not require use but simply requires contraception be covered for the employs (religious and not) who work for these organizations. The college while it maintains their values towards marriage and sexual conduct I don’t see anything that suggests that it is the college’s basis for employment they simply object to paying for its consumption. So then the violation if I’m not mistaken comes when one of their employees decides to use it and they have to pay the premium. I mean is it part of a fundamental right that insurance policies must adapt to the religious beliefs of the employer? Surely not and if it is indeed the case as it is that the college does hire and serve many who do not hold the colleges belief and are not obliged as far as we know to do so where is the violation of free exercise of religion? They don’t oppose the use of health insurance coverage they simply oppose one of the things their provider is required to cover. In US v. Lee an amish employer claimed that because his religious tenants did not believe in the program that paying the social security tax violated his first amendment rights. The court made it very clear, “Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
February 19th, 2012 | 2:43 am
Al, what really is the purpose of the contraception/abortion mandate? Does it serve some public good? Namely, is casual sex important enough to require violation of longstanding religious beliefs?
In the Amish case you mention, they wanted to avoid paying taxes. Congress undoubtedly has the authority to collect taxes. After the taxes are collected, it is no longer the moral responsibility of the tax-payer how they are used. It’s far less clear that Congress has the authority to compel direct funding and trafficking in contraception, sterilization, and abortion.
As for “enter into commercial activity” — the Catholic organizations in question are not-for-profit charities.
I have not heard anyone suggest that people be allowed to avoid any and all laws by referring to some “religious belief.” You ask, “is it part of a fundamental right that insurance policies must adapt to the religious beliefs of the employer?” Presumably if an employer wished to purchase a policy that didn’t cover contraception, the market would provide for that need. Businesses do tend to adapt to the beliefs of their customers. What is at issue is some fundamental right of the state to force religious organizations to adapt to their beliefs regarding contraception, etc. There are exceptions to every rule, for example, making death threats is not protected under the first amendment. Again I don’t think anyone is suggesting otherwise.
This issue would be much more straightforward if there were some clear public good to be had from widely-available contraception. But there isn’t. Casual sex might be “fun” but is making sure people can have fun really a pressing public policy objective? There is no other need for it or good to be obtained by mandating its coverage. This is unlike Social Security taxes, which provides financial security for the elderly.
So what is lacking in the mandate is a clear reason for why these religious beliefs do not qualify for first amendment protection. It would need to be a pretty good reason, analogous to why death threats or inciting violence are not protected forms of speech. So far I have not seen any reasons given at all.
The left seems to be framing it as a mission of liberation against the oppression of (completely voluntary) religious organization. “Don’t force your religious beliefs on me,” is a common phrase heard. This sort of statement ignores the fact that contraception is inexpensive and widely available. In fact, in most major cities there are many social service agencies which already provide free contraception. Thus, while you are correct that religious objections are not always valid, in this case, there seems to be little reason for the mandate at all even assuming that there were no religious objections to it.
February 19th, 2012 | 11:22 am
“I mean is it part of a fundamental right that insurance policies must adapt to the religious beliefs of the employer? [...]They don’t oppose the use of health insurance coverage they simply oppose one of the things their provider is required to cover.”
No. The “fundamental right” at issue is the freedom of conscience, which includes not being forced by the federal government to purchase a product that one considers evil. To suggest that they “simply oppose” one small item in their insurance package does not do justice to the magnitude of the moral problem. Anyway, in the case of Belmont Abbey in particular, keep in mind that the college IS its own insurer. Even the Obama administration admits this is a problem for their Decree #1, as Charles Krauthammer calls it. But they are not going to talk about that now, they’ll get around to it after November.
Frankly, the issue at the heart of the matter is neither contraceptive services or insurance. It is much greater than that. Out of thin air, the Federal Government has arrogated the right to define “religion” and “religious exercise” via federal regulation.
The administration defines “religious exercise” so narrowly that Jesus Himself would not meet the new Federal definition. Neither would the Good Samaritan, or Mother Teresa. People who resist these fiats for religious reasons will be assessed massive fines (see “jizya” for the concept) or forced to close up shop.
THAT is the basis of the current battle. It should bother ALL Americans, liberal or conservative because it poses an existential threat to the foundation of human rights, which are those rights conferred on man by a greater power. Once government assumes the role of “rights giver,” the concept of “unalienable rights” elaborated in the Declaration of Independence is dissolved.
The Obama administration has declared that God is dead. It is the secular, temporal, mutable and imperfect federal government that giveth and taketh away. Are we all OK with that or not?
February 20th, 2012 | 12:25 am
Al,
You quote the court as follows:
“When followers of a particular sect enter into commercial activity as a matter of choice…”
In this case, the Catholic Church is not being given a choice. They must purchase health insurance for their employees or be fined. If they do purchase the insurance, the policy must include contraceptives.
Where is the choice?
February 20th, 2012 | 2:16 am
Can there any longer be any doubt that Pres. Obama simply chose his radical position and disingenuous ‘concession’ to make the topic of contraception a wedge issue to win back parts of the female vote he’s been losing for the past 2 years? Let’s be honest with our selves. We know eventually at some point the mainstream media will line up behind him and stop addressing this as a religious liberty issue and present it as ‘here’s all the reasons contraception is good, and none of the reasons why it’s bad, so if you like contraception, vote Obama’. The whole year-long extension, promise of future revisions is clearly a sign he intends to relent once the issue has served its purpose to grant him the power he seeks.
February 20th, 2012 | 9:43 am
In this case, the Catholic Church is not being given a choice. They must purchase health insurance for their employees or be fined.
Julie,
The contraceptive mandate does not force “the Catholic Church” to provide coverage of contraception. Please let’s be clear about that. There are exemptions for anything that might reasonably be called “the Catholic Church.” A diocese, a parish, a Catholic elementary or secondary school—all such organizations are exempt. Many people feel that exemption is too narrow because it doesn’t include organizations that identify as Catholic (for example, hospitals and universities) but hire non-Catholics and serve non-Catholics. It is perfectly reasonable to feel the exemption isn’t broad enough, but anything that might reasonably be called “the Catholic Church” is exempt from the federal mandate, even in it’s unmodified form.
Also, the “fine” (the administration calls it a tax) for not providing insurance is $2000 per person, which is far, far less than the cost of providing insurance. The average cost to insure a worker only (not the worker and his or her family) was $5429.
February 20th, 2012 | 10:08 pm
Let the Church decide what is reasonably considered the Church as it operates in the world, not the state with its selfish totalitarian impulses.
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