Thomas G. Renker, General Council  for the Diocese of Rockville Centre,  gave the following address at a Rally for Religious Freedom held at Mercy Medical Center on November 13.

An update on the status of litigation against Secretary Sebelius, the Department of Health and Human Services and their HHS Mandate

 

Good afternoon, everyone.

 

Thank you to Catholic Health Services (CHS) and its Chairman Richard Sullivan, and to Bishop Walsh, Father Arcoleo, Barbara Samuells, Eileen Wolfe and Linda DeScalo.

 

And a special thank you to Catholics for Freedom of Religion. In a very short period of time, this group of lay Catholics, fiercely committed to protecting religious liberty for all, has really stepped up and become a, if not the, leading lay organization on Long Island dedicated to our first freedom, the freedom of all religious folks to practice their faiths in the public square as well as in our houses of worship.

 

My name is Tom Renker and I serve proudly as the General Counsel of the Roman Catholic Diocese of Rockville Centre. Barbara Samuells asked if I could spend a few minutes reviewing the status of the federal litigation that the Diocese of Rockville Centre, along with the Archdiocese of New York and CHS, and several other Catholic entities, brought in federal court in New York against Secretary Sebelius, the Department of Health and Human Services and their HHS Mandate. And that I am very pleased to do, with a brief caveat remaining mindful of professional rules about commenting publicly on pending litigation

So – where is the case and what is it about.

As a matter of legal procedure, this case is nearing the end of pre-trial and pre-discovery motions. Each party believes that its legal position is correct and that depositions and a trial are not necessary, and that the judge can make a ruling purely on the law without the need to fight about facts.

 

In sum, we, as plaintiffs have asked the court for two things:

 

(1)  To stop HHS from enforcing the mandate against entities like CHS that have not been exempted under the HHS rules and

(2)  To rule, as a matter of law, that is, without a trial, that, in sum,

 

  • The Mandate violates the Religious Freedom Restoration Act, also known as RFRA.
  • The Mandate substantially burdens the right of free exercise of religion.
  • The Government cannot demonstrate a compelling governmental interest furthered by the Mandate.
  • The Mandate is overly broad.
  • The Mandate violates the Free Exercise Clause and the Establishment Clause.
  • And the Mandate constitutes an excessive entanglement of government in religion in violation of the US Constitution.

 

The Government, our government, counters, not surprisingly, that

 

  • The Mandate does not violate RFRA.
  • The Mandate does not substantially burden the right of free exercise of religion because the regulations require virtually nothing of the plaintiffs and therefore impose no more than a de minimis burden.
  • Even if there is more than a de minimis burden, it is too “attenuated” to be substantial – I will explain this “attenuation” argument in a moment.
  • Even if the burden is substantial, there is a compelling governmental interest furthered by the Mandate.
  • The Mandate does not violate the Free Exercise Clause or the Establishment Clause.
  • And the Mandate does not unconstitutionally entangle government in religion..

 

 

Understand for a moment the regulatory scheme that entities like CHS and other non-exempt entities like religious schools and charities are faced with – indisputably, the Government does not contest this fact – that the Mandate requires that the insurance companies or third-party administrators of the health insurance programs of Catholic employers must pay for the abortifacients, contraceptives and sterilization services called for by the Mandate.

 

If a non-exempt entity fails to have a program that adheres to the Mandate, it faces crippling fines.

 

The Government, our government, believes that this regulatory scheme somehow builds a wall between our objections and the facilitation of the provision of these objectionable goods and services through middlemen, insurance companies or TPAs

 

And what is perhaps most alarming to folks on our side of this issue is that, the Government, our government, argues in essence that the burden on our consciences is de minimis – AS IF THEY HAVE THE STANDING TO TELL US, TO DICTATE TO US, TO ORDER US THAT OUR CONSCIENCES SHOULD NOT BE TROUBLED — BECAUSE ALL WE DO IS OPERATE A HEALTH INSURANCE PROGRAM THAT PROVIDES ABORTIFACIENTS THROUGH AN INSURANCE COMPANY OR TPA.

 

But the Government is not supposed to dictate what troubles our consciences and this is what they are missing — that the First Amendment and RFRA say – Government – stay out of sincerely held belief and to tread on such belief is illegal.

 

Thankfully, a number of decisions around the country have gotten it correct. It is worthwhile to note that there have been a number of favorable decisions around the country.  Go to the Beckett Fund website HHS Mandate scorecard and see.

 

Very recently, two 2-1 decisions coming out of United States Courts of Appeals – the level below the US Supreme Court, have ruled against the Mandate:  in the District of Columbia Court of Appeals, which is a very influential court, and the 7th Circuit Court of Appeals in Illinois.

 

Both Courts made it clear that the Government’s attenuation argument is only so much hogwash.

 

The DC Circuit made it clear that

“The burden on religious exercise does not occur at the point of contraception purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a healthcare plan.  In other words, the [Catholic employer] is burdened when [it] is pressured to choose between violating …religious beliefs in managing their selected plan or paying onerous penalties.”

 

Further, the Court pointed out that “[t]he Framers of the Constitution clearly embraced the philosophical insight that government coercion of moral agency is odious.”

 

And the 7th Circuit made it equally clear that no civil authority can decide what burdens the conscience of a believer.  That is for the believers to decide.

 

These are great decisions but the 2-1 splits highlight the divide among lower court judges.

 

As the briefing of our suit reaches its final submissions on this Friday November 15, we must keep things in their proper context – We remain hopeful of a favorable result, understanding that the entire matter of the HHS Mandate is headed for the US Supreme Court in some form or another.

 

And as we wait, I am keeping in my mind excerpts from the readings from this past October 20, which at the time really struck me as pertinent to this battle with HHS:

 

  • From Exodus:

 

In those days, Amalek came and waged war against Israel.
Moses, therefore, said to Joshua,
“Pick out certain men,
and tomorrow go out and engage Amalek in battle.
I will be standing on top of the hill
with the staff of God in my hand.”

 

  • From St. Paul

 

Remain faithful to what you have learned and believed,
because you know from whom you learned it…..

be persistent whether it is convenient or inconvenient;
convince, reprimand, encourage through all patience and teaching

 

  • And from the Gospel of Luke

 

Will not God then secure the rights of his chosen ones
who call out to him day and night?
Will he be slow to answer them?
I tell you, he will see to it that justice is done for them speedily.
But when the Son of Man comes, will he find faith on earth?

 

It is our duty to keep faith alive.  Win or lose when this matter goes to the US Supreme Court, there are more battles coming, in different forms, and we see them coming — battles to protect the rights of religion and conscience and the right not to be forced to violate conscience.

 

And as these battles approach, our faith tells us to persevere – and as people of faith we have the Constitutional right to do so, never giving in and never giving up .

 

Thank you all for the great work you are doing.

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