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Defending Our First Freedom: The HHS Mandate and the American Promise of Religious Freedom

madison.jpegJames Madison wrote in his Essay on Property: “Conscience is the most sacred of all property.”  Religious freedom is a cornerstone of American society, culture, government and rights.  One of the founding principles of our nation, it is rightly called our “first freedom.”  The recent hailstorm of lawsuits challenging the constitutionality of the HHS Mandate implicates a frightening and unprecedented departure by the government from the American promise of religious freedom. 


The HHS Mandate requires Catholic and other religious institutions to provide insurance coverage for and facilitate the use of contraceptives, abortion-inducing drugs and sterilization. The legal challenges are brought on grounds of violations of the free exercise, freedom of speech, and establishment clauses of the First Amendment, the Religious Freedom Restoration Act (RFRA), the Weldon Amendment and the Administrative Procedures Act (APA).

This essay shall (1) provide a summary and historical timeline of the HHS Mandate; (2) outline the legal arguments brought by plaintiffs in the HHS Mandate lawsuits; (3) explain the relationship of these cases with the U.S. Supreme Court Obamacare case; and (4) discuss the broader cultural and legislative implications at stake.

     I.    Summary and Historical Timeline of the HHS Mandate

March 23, 2010 – Obama’s health care reform law, the Patient Protection and Affordable Care Act, is enacted.  Under the law, employers must provide health insurance coverage for “preventative care” for women; this term is left undefined in the final enacted law.

March 24, 2010 – Obama issues Executive Order No. 13535 promising to uphold “longstanding Federal laws to protect conscience.”

July 19, 2010 – Without complying with requirements for public notice and provision of  time and opportunity for the public to submit comments, arguments and evidence as required in the Administration Procedure Act (APA), 5 U.S.C. §553, the Department of Health and Human Services (HHS) issues Interim Final Rules, 75 Fed. Reg. 41,726, requiring  insurance coverage for “preventative care.”  The term is left undefined again.

July 19, 2011 – The Institutes of Medicine (IOM) recommends that “preventative care” should include “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education counselling.”  FDA-approved contraceptives include the abortion-inducing drug, Ella, and Plan B (“the morning after pill”), also believed to induce abortions.  IOM based its recommendation partly on presentations by a few select groups, including the Guttmacher Institute and Planned Parenthood Federation of America.  No groups that opposed government-mandated abortion and contraception coverage were invited to give presentations.  (For further reading, see CLF’s legal brief, “Abortion and America’s Moral Consciousness: The Legal and Cultural Battle to Define Pregnancy” at content/view/683/98/ [1] )  

August 1, 2011 – In contradiction to Obama’s promise to protect rights of conscience, the HHS issues a mandate adopting IOM’s definition of “preventative health services.”  The Health Resources and Services Administration (HRSA) guidelines also accept the IOM recommendation.  The mandate was issued without compliance with APA notice-and-comment rules.  

August 3, 2011 – Bypassing APA notice-and-comment rules again, the interim rules are amended to include a narrow exception for religious employers.  The exception states that
For purposes of this subsection, a “religious employer” is an organization that meets all of the following criteria:

      (1)    The inculcation of religious values is the purpose of the organization.

      (2)    The organization primarily employs persons who share the religious tenets of the organizations.

      (3)    The organization serves primarily persons who share the religious tenets of the organization.

      (4)    The organization is a non-profit organization…

Catholic hospitals, schools, dioceses, social service and charity organizations, media, and other institutions do not fall within the HHS Mandate’s unprecedentedly narrow legal definition of “religious employer.”

January 20, 2012 – HHS Secretary Kathleen Sebelius issues a statement refusing to amend the HHS Mandate, and giving Catholic institutions a one year extension to comply with the mandate.

February 10, 2012 – Obama publicly states that he will offer an “accommodation” for religious employers by requiring insurance companies of religious employers – and not religious employers themselves – to provide full coverage for abortion-inducing drugs, contraceptives and sterilization directly to employees.  However, since doctors do not work for free and insurance companies must still pay doctors and medical providers for services rendered, this accommodation will only result in higher premiums and fees; it will not effectively stop religious employers from being forced to pay for and facilitate access to abortion-inducing drugs, contraception and sterilization.

      II.    Legal Arguments Against the HHS Mandate

By June 2012, 80 plaintiffs in 23 different lawsuits around the nation have filed suits challenging the HHS mandate.  Catholic Charities USA and Catholic educational institutions such as The Catholic University of America and University of Notre Dame are among the Plaintiffs.

These organizations do not meet the HHS mandate’s criteria for “religious employers” because: (1) the “inculcation” of the Catholic faith is not their purpose; (2) they do not discriminate based on religion when they hire employees, so none of them “primarily employs” Catholics; and (3) in accordance with their Catholic mission to serve people of all races, ethnicities and religions, none of them “serves primarily” Catholics.  (Moreover, it is practically impossible to determine the religion of every person in need whom they serve.)  The Archdiocese of Washington and Eternal Word Network Television (EWTN) have also filed suit, because they do not selectively serve Catholics only, but reach out to persons of all faiths.  

The following are the legal arguments brought by Plaintiffs in the HHS Mandate cases:

      a.    Violation of the Religious Freedom Restoration Act (RFRA)

The RFRA, 42 USCS § 2000bb-1, (1) prohibits substantially burdening religious exercise by the government, (2) except for rules of “general applicability” (i.e., those that apply neutrally and equally to all without selective targets), (3) unless the government can show that the burden on religious exercise “is in furtherance of a compelling government interest” and is the “least restrictive means” possible.  

The HHS mandate amounts to a substantial burden on the religious exercise of Catholic and other faith-based organizations. The Mandate is not a rule of general applicability because it creates multiple exceptions.  Contraception, abortion-inducing drugs, and sterilization are readily available throughout the United States.  Therefore, the government has no compelling reason to force religious organizations to pay for them.  Requiring religious organizations to violate their consciences is not the least restrictive means possible.  The government has many alternatives, including expanding the religious employer exception to include Catholic hospitals, schools, universities and social service agencies.

      b.    First Amendment Violations – Free Exercise and Establishment Clauses

The Mandate substantially burdens religious organizations’ free exercise of religion by forcing them to pay for and facilitate practices that are against their religious beliefs or else be exposed to substantial fines for their religious exercise.  This is a clear violation of the Free Exercise Clause of the First Amendment.
The Mandate’s narrow religious employer exception favors and protects the religious freedom of some religious organizations.  It selectively burdens and does not protect the rights of religious organizations that serve and hire persons of all faiths, thereby discriminating against certain religious entities based on their religious beliefs and practices.  This constitutes discrimination in violation of the Free Exercise Clause and Establishment Clause of the First Amendment.

Determining whether an organization’s purpose is the “inculcation of religious values,” and whether the institution “primarily employs” and “serves primarily” individuals of the same religion would require intrusive government inquiries, investigations, and judgments into the religious beliefs and practices of individuals and institutions, as well as the internal government of such institutions.  This constitutes excessive government entanglement in religion, in violation of the Free Exercise and Establishment Clauses of the First Amendment.

The Mandate will not survive a strict scrutiny review because it is not a neutral law of general applicability, and does not further a compelling government interest in the most restrictive means possible (see Part A., above).  

      c.    First Amendment Violations – Free Speech Clause

The use of money in support of a viewpoint is protected speech under the First Amendment’s right of expressive association.  Forcing a speaker to use his/her money to support a viewpoint in violation of the speaker’s religious beliefs constitutes compelled speech in violation of the Free Speech Clause of the First Amendment.

      d.    Administration Procedure Act (APA) Violations

When the government issued the final interim rules, the Mandate adopting the IOM definition of “preventative care,” and amended the Mandate to include a narrow religious employer exception, the government failed to provide proper notice and opportunity for public comment as required under the APA.  The Mandate and the religious employer exception were illegally fast-tracked, bypassing these administrative rules.  They were issued without meaningful consideration of thousands of comments and statements submitted by groups and organizations that discussed the full constitutional and statutory implication of the Mandate on religious organizations.  

      e.    Violation of the Weldon Amendment

The Weldon Amendment prohibits the HHS from discrimination based on an entity’s religious objection “to provide, pay for, provide coverage of, or refer for abortion.”  The HHS Mandate discriminates against certain Catholic and other organizations based on their objection to provide coverage for abortion-inducing drugs.  The Mandate thereby violates the Weldon Amendment.

      III.    How Are the HHS Mandate Cases Related to the U.S. Supreme Court Obamacare Case?

The Supreme Court Obamacare case challenges the constitutionality of the individual insurer mandate.  The HHS Mandate cases, on the other hand, challenge the constitutionality of the HHS Mandate.  The cases are related, but they have different causes of action since they challenge different mandates.

There are 3 possible scenarios:

      (1)    The U.S. Supreme Court rules that Obamacare is unconstitutional in its entirety.  The HHS Mandate would then be thrown out with it, because it cannot work without the other legal provisions in Obamacare.  

      (2)    The Supreme Court strikes only part of Obamacare, and then it has to determine if the rest of the law is separable and can remain good law without the individual insurer mandate (the portion of Obamacare that was struck).  If it is separable, then the HHS Mandate cases will continue to move through the courts.  If it is inseparable, then the HHS Mandate will be thrown out with the rest of Obamacare.

      (3)    The Supreme Court upholds Obamacare.  This should not affect the HHS Mandate cases because the legal causes of action in the HHS Mandate cases are different from those of the Obamacare case.  And, depending on who is elected as President in November, the HHS Mandate cases may be resolved if we have a President in office who would rescind the Mandate.

      IV.    Cultural and Legislative Implications of Government Overreaching

The Founders of our nation did not intend the government to have the unbridled power it has exercised in forcing religious organizations to violate their religious beliefs.  If the government can get away with this, then where is the stopping point?  What is to stop the government from mandating participation in other morally objectionable medical procedures?  The HHS Mandate sets bad legal precedent.  What’s next – mandating participation in euthanasia, abortion procedures, artificial reproduction and embryonic stem cell research?  

Supporters of the HHS Mandate have framed the debate as a women’s “right to choose” issue; but with abortion and contraception readily available throughout the country, this claim does not work.  The real issue is not whether women have access or the right to choose contraception and abortion, but whether people should be forced to pay for it, even if it violates their religious freedom.

The HHS Mandate is also a step in the direction of “normalizing” abortion.  By categorizing contraceptives and abortion-inducing drugs as “preventative care,” the government is re-defining pregnancy as a disease that needs to be prevented.  If this definition of pregnancy as a disease is culturally accepted, the cultural acceptance of abortion as basic, standard health care is not far behind.

CLF Senior Fellow, Dr. Christian E. Brugger, points out in his article, “Whose Conscience?  Which Religion?  The Enemy is Partly Us” (available at content/view/755/1 [2] /) that there are even broader cultural and legal implications than mere threats to religious freedom and conscience.  Brugger asserts that these attacks are not just against liberty, but against truth and reality.  

Brugger reminds us that law used to be rooted in truth.  Going back to English common law, all laws and political discourse were aimed at truth.  Since what is true is reasonable, then reasonableness was the appropriate test for the legitimacy of a law.  Our modern legal “reasonableness” standard was derived from this.

Truth has ceased to be the guiding light of the law.  Our society increasingly denies the very existence of universal truths.  Moreover, if a rational truth is affirmed by a particular religion, it is quickly labelled as a matter of subjective religious belief.  Objective moral truth has been thrown into doubt; there is only subjective moral opinion and prejudice.  There is no right or wrong; there is only tolerance or bigotry.  The controversy over religious freedom sidesteps the larger question of whether or not contraception, abortion and sterilization are right or wrong to begin with.  This is the real question that should be asked, but which modern society refuses to consider as anything but a matter of prejudice and opinion.  

As Brugger reminds us, in addition to the HHS Mandate’s violations of religious freedom, it is important to keep one’s eye on what laws, policies and lawsuits implicate for the “big picture.”

      V.    Conclusion

It is only a matter of days and hours before the Supreme Court hands down its opinion in the challenge against Obama’s individual mandate.  That decision could well determine the fate of the HHS Mandate…or it could not.  For the challenges ahead, we urge justices, judges and lawmakers to remember America’s promise of religious freedom.  In the words of Thomas Jefferson: “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority.”  We also urge a cultural and legal return to the recognition of the existence of truth and the central role it should play in law and society.

(c) 2012 Culture of Life Foundation.  Reproduction granted with attribution.