On August 1, 2011, the Department of Health and Human Services announced an interim final rule requiring “new health insurance plans to cover women’s preventive services such as well-woman visits, breastfeeding support, domestic violence screening, and contraception without charging a co-payment, co-insurance or a deductible.” Secretary Kathleen Sebelius announced on January 20, 2012 that the rule was final, but that religious employers who “do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law.”
While she acknowledged that many religious organizations had moral objections to covering contraceptive services, Sebelius defended the rule, arguing that it “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Religious employers across the country disagree, including President John H. Garvey of the Catholic University of America, which on May 21 joined with over 40 other religious plaintiffs in a lawsuit to block the new rule.
SM: As you mentioned in your press release, the mandate was made final in January, which was about four months ago. What happened between then and now that made you decide to go ahead with the lawsuit?
JG: Well, you never want filing a lawsuit to be your first thing out of the box. So we were hoping that there would be a solution to it that wouldn’t require litigation, and at first there was a kind of strong reaction against the regulations when they were promulgated on, well, when they were announced on January 20. So first waited for was some relief from the White House, and the President offered a suggestion on February 10 that still hasn’t become effective; the president can’t change rules that are made by agencies just by saying so, so it was really a suggestion that the agencies should have another rule-making and change it in the way the president suggested, and the agency hasn’t actually begun that rule-making, although they’ve issued something called an advance notice of proposed rule-making. That’s a way of saying that they’re thinking about proposing things that are like what the president talked about.
So we looked for some relief there. The president’s proposal, even if it’s enacted by HHS, won’t be enough to solve our difficulty. The president has proposed that instead of religious employers like Catholic University [paying], their insurance companies should have to pay for the contraceptive services and sterilizations and early-term abortions that we’re objecting to. Unfortunately, the way that’s going to work is this: one of our students gets a prescription for contraceptives, goes to the CVS pharmacy to buy [a common contraceptive]…CVS then files a claim with our insurance company and our insurance company then debits our account and builds it into the base that we’re going to pay the next time we make an agreement, so we end up paying anyway. The insurance company passes the cost along to us and our student is covered because she has a policy with us, so it doesn’t really work any actual change. But we hoped that it would.
We also made an attempt at getting a solution in Congress, and there was an amendment introduced by Sen. Blunt (R-Mo) in February that would have widened the exemption enough to fit us. But that was defeated 51-48 in the Senate, so the opportunities for executive or legislative relief were kind of gone. There is always the chance that after the election in November if there’s enough of a change that a new administration might take a different view of this issue than the current one does. But that’s too long for us to wait because for some insurance plans the rule becomes effective on August 1 of this year. For our plans it becomes effective on August 1 of next year, but we need to begin negotiating those contracts well in advance and we can’t really afford to wait until the election. And in any case, that may not solve our problem.
The mandate provoked this response from Catholic organizations all over the country—
—and not just Catholic organizations, I might add. I was involved in some hearings before Rep. Issa’s (R-Calif) committee, and on the panel before me there was Archbishop Lori from Baltimore but also a rabbi and a Baptist minister and all of them said look, we’re all Catholics now. We don’t necessarily object to contraception, one of them said, but we do object to early-term abortions and sterilizations, but in any case this is an issue of religious liberty that we all care about.
Regarding the timing of the suit, some Catholics, including Bishop Blaire of Stockton, California, have expressed concern that some groups are making this a political issue more than a religious issue, namely that they’re trying to strike a blow against the president before the election. Do you see this as a valid concern?
Well, let me say a couple of things about that. First of all, it is a political issue in an obvious sense. In response to your first question I said, well, you don’t want to bring a lawsuit every time you’re unhappy about some question. The way we usually resolve these things in a democracy is we take them to the elected branches of government, to the executive branch and to the Congress and say we need some relief from this, this isn’t the way we’ve traditionally treated religious freedom. So, that’s a political issue in the sense that we’re talking to the popular branches of government about how we ought to resolve this. And of course it becomes an issue in elections because that’s how we elect popular branches of government. So, it’s political in that sense.
In another sense, I think it’s important for people to realize that religious liberty is not an issue that belongs to one or another of the chief political parties in America. It is not the case that the Republican Party has defended religious freedom more stoutly than the Democratic Party. For example, the biggest change in religious freedom in the last twenty five years has been a Supreme Court decision in 1990 [Employment Division v. Smith] that essentially got the Supreme Court out of the business of protecting religious freedom, and many of the justices in the majority in that case were, like Chief Justice Rehnquist and Justice Scalia, people who had been appointed by Republican presidents. And on the other hand on the Supreme Court there were people like Justice Brennan, a liberal stalwart, who was a great defender of religious freedom and saw those kinds of issues differently from Republicans who tend to side with the government often. On the other hand, this is an issue that the present administration, which happens to be Democratic, has shown surprising insensitivity toward. So, I guess what I’m saying is I’m not sure that a change of administrations is necessarily going to make things better, although I hope that people who are running for office realize that a lot of us care a lot about making it better.
Backing up to some other legislation related to religions freedom, Congress in 1993 passed the Religious Freedom Restoration Act that laid down the standard that the government can’t “substantially burden” religion without a “compelling interest.” Do you think the government’s interest is compelling enough to meet this standard?
No, I don’t. This law that you’re referring to, the Religious Freedom Restoration Act or RFRA, as the lawyers call it, was passed in response to this 1990 case that I referred to. It received overwhelming support in Congress and what it did was to reinstate as a statutory matter what had been the constitutional rule in First Amendment cases. So what it says is that if the government is going to impose a substantial burden on religious freedom that it has to have what they lawyers call a compelling interest in doing so, and that it has to choose the means that will impose the least restriction on religious freedom. This is actually a very strong argument for our side in the lawsuit that we brought. What Congress said in this law is that Federal agencies should not interfere substantially with religious freedom unless they have really important reasons for doing so, and unless they choose the alternative that will interfere as little as possible. So let me give you an example in this case. I’m surprised to think that providing free contraceptive coverage to the small minority of people who, well, it’s hard to imagine people not being able to get contraceptives by just going to the local CVS, so I’m not sure that solving that problem is a compelling government interest. But, if it is, there are ways to do it that have no effect at all on religious institutions, like Congress paying for it. I mean, why choose as the group that’s going to pay for this service the institutions that have religions objections to doing it? Why not just appropriate some money?
There are many state versions of this new federal regulation. In California, for instance, Catholic Charities challenged in court a state law requiring them to cover contraceptives and other things they found objectionable. In the end, they lost the case and then their case was rejected by the Supreme Court. Do you think the present case is different and do you expect a different verdict?
Yes. It is different. The Religious Freedom Restoration Act that we’re talking about, the Supreme Court said, can’t apply to the states. So that was not an argument that was available in this California case that is available to our case because this rule was adopted by Health and Human Services. But apart from that, it’s a mistake to say that the Supreme Court rejected the case. The case as I remember went through the federal courts in California, the California federal district court and then the Ninth Circuit which governs California and a couple of western states. Catholic Charities lost the lawsuit in the Ninth Circuit and then petitioned the Supreme Court for certiorari, and the Supreme Court denied certiorari. That doesn’t have any legal meaning; it means that the court’s not going to take the case, for whatever reason. It doesn’t mean that the court disagrees with it or that the court rejects the argument of the disappointed petitioner.
Let’s say that you were not the president of CUA, and that you were the lawyer arguing this case in court. What would your central, case-winning argument be?
I think the most convincing argument for the illegality of this is the Religious Freedom Restoration Act. I think that Congress has essentially explicitly said that federal agencies should not adopt rules like this. They interfered too much with religion and there are too many ways to solve whatever it is that the administration was trying to solve.
You mentioned earlier a “surprising insensitivity” to issues of religious freedom on the part of the present administration. Where else do you see that besides this HHS case?
I was surprised to see both the EEOC and the solicitor general taking the position that they did about the ministerial exemption from nondiscrimination laws in a case called [Hosanna-Tabor Evangelical Lutheran School and Church v. EEOC] this fall. The Supreme Court ruled unanimously that the government shouldn’t try to regulate the employer relations of churches and their ministers and religious teachers.
On a general level, do you think things look good for religious freedom in the United States?
I think it’s a real concern. I’ve seen in the last few years a kind of loss of a sense that religious freedom is an important right that matters for all of us. You see more enthusiasm for other kinds of rights, speech is a good example, or claims for sexual freedom of one kind or another seem to have more enthusiastic support than claims for religious freedom, and I wonder if it has something to do with the decline in attachment to religion generally among people in our society.
Sullivan Maciag is a writer in Washington, D.C.