The Case for the Church: Why the Contraceptive Mandate Violates Religious Liberty

A breakdown of the legal arguments expected to be made in the case:
Archdiocese of St. Louis and Catholic Charities of St. Louis v. Kathleen Sebelius, et al.


The Contraceptive Mandate:

  • The HHS contraceptive mandate requires employers offering health plans to provide coverage for all FDA-approved contraceptives methods and sterilization procedures.
  • The HHS mandate also requires employers to provide related “patient education and counseling for all women with reproductive capacity.”
  • FDA-approved contraceptive methods include intra-uterine devices (IUDs), prescription contraceptives, Plan B (the “morning after pill”), and the emergency contraceptive drug Ella (approved in 2010).  Some of these methods can have an abortifacient effect by preventing a fertilized ovum from implanting in the uterus.
  • The HHS mandate has an extremely narrow exemption for “religious employers” that meet allof the following criteria:
    • The inculcation of religious values is the purpose of the organization;
    • The organization primarily employs persons who share the religious tenets of the organization;
    • The organization primarily serves person who share the religious tenets of the organization; and
    • The organization is a nonprofit organization as described in the tax code.
  • Employers who fail to offer plans including the objectionable coverage will be exposed to an annual fine of $2,000 per employee.

Church Teaching on Contraception and Abortion:

  • The Catholic Church teaches that the use of artificial contraception, or purposeful actions undertaken with the intent to render procreation impossible, is not only illicit for Catholics, but is “intrinsically evil.” (CC 2370).
  • Pope Paul VI in his encyclical Humanae Vitae (1968) stated that every marital act must be open to the transmission of life, safeguarding the unitive and procreative aspects of the conjugal act and thereby preserving “in its fullness the sense of true marital love.” (HV ¶ 12).
  • Direct sterilization as a means of regulating birth is also illicit for Catholics, “whether perpetual or temporary, whether of the man or of the woman.” (HV ¶ 14).
  • “Procured abortion is deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth.” (Pope John Paul II, The Gospel of Life  ¶ 58).
  • “Christian tradition …is clear and unanimous from the beginning up to our own day in describing abortion as a particularly grave moral disorder.” (The Gospel of Life  ¶ 61).

The Facts of the Case:

  • The Archdiocese of St. Louis (“ARCH”) encompasses more than 180 parishes serving over 520,000 Catholics in the St. Louis area.  ARCH operates 123 of the 147 schools within the Archdiocese of St. Louis.
  • Catholic Charities of St. Louis (“CCSTL”) is the largest non-governmental social service provider in the region.  In 2010, CCSTL provided services to 157,000 people regardless of their religion, 76 percent of whom lived below the poverty line.
  • ARCH operates a self-insured health plan whereby ARCH underwrites its employee’s medical costs. CCSTL offers health coverage to its employees through ARCH’s plan.
  • ARCH’s plan does not offer coverage for abortion, sterilization, or contraception.  In limited circumstances, the health plan’s administrator can override the exclusion of contraceptive drugs if a physician certifies they are needed to treat a medical condition, not with the intent to prevent pregnancy.
  • ARCH does not know how many of the people it serves or hires are Catholic, and it is unclear if ARCH would qualify as a “religious employer” under the narrow exemption to the HHS mandate.
  • CCSTL does not qualify as a “religious employer” under the narrow exemption to the HHS mandate.

How the Mandate Violates Religious Liberty

1. First Amendment Violations:  The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

a. The HHS Mandate Imposes a Substantial Burden on Religious Liberty in Violation of the Free Exercise Clause of the First Amendment:

i.     The First Amendment prohibits Government from substantially burdening an entity’s exercise of religion.

ii.     The mandate seeks to require ARCH and CCSTL to provide, pay for, and/or facilitate access to services that are contrary to their religious beliefs.

iii.     CCSTL does not qualify for the narrow “religious employer” exemption.

iv.     ARCH would have to submit to an invasive government inquiry to determine if it qualifies for the exemption.

v.     Alternatively, for ARCH and CCSTL to preserve their religious liberty and fall under the exemption, they would be required to restrict their ministry to co-religionists, severely limiting their ministry and the free exercise of their religious beliefs.

vi.     The “accommodation” offered by the Obama administration does not relieve ARCH or CCSTL of this dilemma, because:

1. The mandate would require ARCH and CCSTL to facilitate through ARCH’s self-insured health plan coverage for contraception and sterilization that run directly contrary to Catholic teaching; and

2. The idea that insurance companies would provide these services “free of charge” is illusory.  For-profit companies do not provide services “free of charge;” and

3. The “accommodation” does not change the narrow exemption applicable to “religious employers.”  Requiring religious employers to submit to an invasive inquiry about whether they are religious enough to qualify is inappropriate and substantially burdens firmly held religious beliefs.

 b. The HHS Mandate Is an Excessive Entanglement between religion and government in violation of the Free Exercise and Establishment Clause of the First Amendment:

i.     The U.S. Constitution denies Government the power to insert itself into the internal affairs of religious institutions – this is the doctrine of church autonomy.

ii.     To determine whether ARCH qualifies for the “religious employer” exemption, the government would have to identify ARCH’s “religious values” and determine whether “the purpose” of ARCH is to “inculcate” those values;

iii.     The government would have to inquire of the individuals employed and served by ARCH to determine if they share ARCH’s religious values;

iv.     The exemption is based upon an improper Government determination that “inculcation of religious values” is the only legitimate religious purpose;

v.     By limiting a legitimate religious purpose to the “inculcation of religious values,” at the expense of other sincerely held religious purposes, the HHS mandate interferes with ARCH and CCSTL’s autonomy;

vi.     Defining religion based upon serving primarily people who share ARCH and CCSTL’s religious values contradicts ARCH and CCSTL’s sincerely held religious belief that their mission and duty as Catholics is to serve all people regardless of whether or not those people are also Catholic.

c. The HHS Mandate Is Religious Discrimination in Violation of the Free Exercise and Establishment Clauses of the First Amendment

i.     The First Amendment mandates the equal treatment of all religious faiths and institutions without discrimination or preference;

ii.     The HHS mandate’s narrow “religious employer” exemption is discriminatory, because it allows some “religious employers” to qualify, but not others;

iii.     The mandate also discriminates among different types of religious entities based upon the nature of those entities religious beliefs or practices.

 d. The HHS Mandate Interferes in Matters of Internal Church Governance in Violation of the Free Exercise and Establishment Clauses of the First Amendment

i.     The U.S. Constitution denies to the State the power to insert itself into the internal affairs of religious institutions – this is the doctrine of church autonomy.

ii.     The HHS mandate allows the Government to interfere with ARCH and CCSTL’s religious structure (in this case decisions regarding what insurance coverage ARCH and CCSTL will provide) by requiring ARCH and CCSTL to facilitate practices that directly conflict with Catholic beliefs.

 e. The HHS Mandate Compels Speech in Violation of the Free Speech Clause of the First Amendment

i.     The First Amendment protects religious organizations against compelled affirmation of any religious or ideological proposition that the religious organization finds unacceptable;

ii.     The mandate seeks to compel ARCH and CCSTL to pay for, provide, and/or facilitate speech (patient counseling, etc.) that is contrary to their religious beliefs.

2. Violations of the Religious Freedom Restoration Act: The Religious Freedom Restoration Act (RFRA) prohibits the Government from substantially burdening a religious entity’s exercise of religion, unless it can demonstrate that the burden: (a) Furthers a compelling government interest; and (b) Is the least restrictive means of furthering the compelling government interest.

a. The HHS Mandate Does Not Further a Compelling Government Interest

i.     The Government has no compelling interest in forcing ARCH or CCSTL to violate their sincerely held religious beliefs by requiring them to provide, pay for, or facilitate access to abortion-inducing drugs, sterilization, contraceptives, and related education and counseling.

b. The HHS Mandate does not employ the least restrictive means of furthering any compelling government interest

i.     Even if the interest were compelling, the mandate and its narrow religious exemption is not the least restrictive means of furthering this interest.  There are other ways the government could provide or pay for the objectionable services.

Summary

The HHS contraceptive mandate places ARCH and CCSTL in an untenable position.  The mandate is a substantial burden on their religious beliefs, because they must either comply with the mandate and violate their sincerely held religious beliefs, or refuse to comply and face severe penalties.

While the mandate includes an exemption for “religious employers,” CCSTL does not qualify, because it does not “primarily serve” Catholics (not the mission of CCSTL).  ARCH does not know if it qualifies for the narrow exemption.  To qualify for the exemption, ARCH would have to submit to an invasive inquiry about the nature of the ARCH’s religious beliefs and mission, along with those individuals it employs and serves.  By allowing some religious employers to qualify for the exemption and not others, the government would be discriminating against certain religious employers based upon their religious mission and/or religious tenets.

There is no compelling government interest in forcing religious organizations and employers to comply with a mandate that violates their religious beliefs.  Even if there were a compelling government interest, this contraceptive mandate and narrow religious exemption does not use the means, least restrictive of religious values and practices, to achieve that interest.

The Obama administration’s refusal to allow religious organizations and employers to have an exemption to this mandate so that they can practice their faith without compromising their sincerely held religious belief is at the heart of the Church’s concern.  The Church cannot comply with this mandate.

Leave a Reply

Your email address will not be published. Required fields are marked *