By Rick Hinshaw

As federal court rulings granting at least temporary relief from the HHS contraceptive-abortifacient mandate keep piling up – culminating with Supreme Court Justice Sonia Sotomayor’s injunction protecting the Little Sisters of the Poor – supporters of the mandate, rather than openly defending it on its merits, are adopting a “what’s the big deal?” mantra, suggesting that the debate is much ado about nothing. All the Little Sisters and other religious opponents have to do, they say, is sign a form that will “opt them out” of the mandate’s requirements.

The claim is false on both counts. The hundreds of affected religious entities represented in more than 90 lawsuits against the mandate are not being allowed to “opt out” of the abortion-contraception requirement; and both the mandate itself and the government’s arbitrary determination to apply it to some religious entities but not others, pose landmark threats to religious freedom.

To briefly review the issue: In 2011, the federal Department of Health and Human Services declared that under the Affordable Care Act (aka Obamacare), employers must include in their employees’ health insurance coverage sterilization procedures and “contraceptive” drugs and devices — including some known to also act as abortion-inducing drugs, as well as counseling services regarding these products, procedures and devices.

The government decided to grant some “exemptions” for churches whose teachings are morally opposed to these “services.” Yet it pointedly excluded from the exemption many church-affiliated institutions – including Catholic hospitals and health care facilities, charitable organizations, higher education institutions and some religious elementary and secondary schools. It also allowed no exemptions for for-profit businesses whose owners might similarly be constrained by religious principles from providing insurance coverage for such procedures and drugs.

Responding to the ensuing outcry, the Obama administration declared a “compromise”: religiously affiliated nonprofits, rather than paying for such “services,” would be required only to arrange for others to do so. This is what mandate supporters claim is an “opt out” provision: that by simply filling out and signing a two page “Certification” form (EBSA Form 700), religious entities are able to, in effect, exempt themselves from the provision of such objectionable services.

But as the redoubtable Becket Fund for Religious Liberty makes clear in its January 2014 brief supporting Justice Sotomayor’s injunction in the Little Sisters case, this claim is “pure litigator-penned fiction.” Religious entities submitting the form must then provide a copy to their health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans). As such, the Becket Fund brief explains, “the Form acts as a ‘permission slip’ that authorizes and in some cases commands another organization to provide objectionable drugs to the Little Sisters’ employees within the terms of the Little Sisters’ health plan.” (emphasis mine)

But don’t just take the Becket Fund’s word for it. In granting another temporary injunction protecting a Catholic entity against this mandate – Catholic Diocese of Beaumont (Texas) v. Sebelius – a federal district court cited in the Becket Fund brief recognized that the government’s regulations provide that the certification form “will be treated as a designation of the third party administrator as plan administrator for contraceptive benefits.” Government respondents in the Little Sisters case, the Becket Fund notes, “admit that once the administrators have the forms – and only once they have the forms (emphasis mine) – they are authorized to provide the objectionable contraceptive services.” (emphasis in original) Moreover, government respondents “admit that they will reimburse administrators who have received the forms and pay them a 10% additional fee for all provided contraceptive services. Without the form, federal reimbursement is not available.”

So clearly, those who sign the forms – the religious entities who are supposedly doing so to “opt out” – are in fact authorizing insurance payments and government reimbursement for contraceptive and abortion-inducing drugs.

This makes perfect sense, for as the Becket Fund notes, if the government’s real purpose was to allow these religious entities to be exempted from the contraception-abortion mandate, such a form would not be necessary at all. They could have simply been included in the mandate’s original exemption for “religious employers.” So something else is at work here, and that brings us back to the question of why this issue is a very big deal, from the standpoint of religious freedom.

This mandate gives the Little Sisters of the Poor – and hundreds of other religious nonprofits – three basic choices:

• They can acquiesce in the government’s demand that they surrender their religious freedom, sign the “certification” form, and thereby authorize the use of their employee health insurance plans to provide drugs that their faith teaches are morally objectionable. If they do this, they lend legitimacy to the government’s contention that it has the right to force upon faith communities and people of faith practices that violate their religious beliefs.

• They can refuse to sign the forms, for which they will “face ruinous fines.” This could of course put some of these ministries out of existence altogether, leaving their employees with no jobs and no health insurance, and the countless numbers of people they serve – people of all social, cultural, economic and religious backgrounds – without the health care, social services, educational opportunities and other assistance these many and varied religious agencies provide, all across America.

• They can simply stop providing health insurance to their employees, rather than be coerced into providing them with morally objectionable “services.” This too, would of course incur a fine under the regulations of Obamacare; but as Thomas Aquinas College in California illustrated so powerfully in its Fall 2013 newsletter, the fines are far less for denying employees health insurance altogether, than for providing a full range of health insurance, but without abortion and contraception. This calls into question the real agenda at work: is it, as stated, to provide access to health care for all who need it? Or is it to pander to the interests of the abortion lobby? Or, could it be to use health care as a weapon to do exactly what this mandate is doing – launch an assault on religious freedom?

Whether or not that is the intent, it is clearly the effect of this mandate. For if the Little Sisters and the hundreds of others being targeted are forced to comply, they would be validating the government’s creation of two classes of religious entities: those, such as dioceses and parishes, that are entitled to full conscience protection and exemption from morally offensive mandates; and those, including faith-affiliated schools, hospitals, and charities, that have no such conscience protection, and can be forced by government to facilitate morally problematic “services,” or be punished severely if they refuse.

This insidious government creation of two classes of faith communities goes well beyond the contraception-abortion mandate in its consequences for religious freedom. For what the government is doing here is arrogating to itself the authority to determine – for religious institutions and individual faith adherents – what constitutes their legitimate religious mission. Forget what Jesus taught us, what the Gospels tell us, what the Church has witnessed to through the centuries – the government has decreed that our Church’s religious mission is limited to worship in our churches; that it does not include service to the poor, care for the sick or any of the myriad other ways in which we are called as Catholics to take the Gospel out into the world. This is simply not for the government to decide – not in a nation whose Bill of Rights emphatically upholds religious liberty.

Those who are trying to dismiss these issues as “no big deal” need to pay attention to what is happening in our federal court system. In addition to Justice Sotomayor, 18 out of 19 lower court cases have resulted in injunctive relief for religious entities challenging the HHS mandate. While most of these, to be sure, are temporary injunctions, “this rate of unanimity among lower courts,” the Becket Fund explains, “is extraordinary,” and bespeaks a recognition by the federal courts that “the legal rights at issue” in these cases are “indisputably clear.”

However the courts ultimately decide, in other words, they recognize that these cases – no matter how HHS-mandate supporters may try to trivialize them — raise serious Constitutional issues. We need to recognize that as well, and so give our full support to those who, in fighting the mandate, are defending not only their own religious freedom, but ultimately ours as well.

File photo shows rally in support of religious freedom in Garden City June 8, 2013  (CNS photo/Gregory A. Shemitz, Long Island Catholic)

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