by Tanya Connor
The Supreme Court decision in the cases involving the U.S. Department of Health and Human Services’ contraceptive mandate and for-profit employers Hobby Lobby and Conestoga Woods is due to be handed down Monday morning.
Meanwhile, a lawyer for the U.S. bishops says most employers who have filed lawsuits seeking to protect their religious beliefs while providing health insurance to their employees have been granted some kind of relief .
“We’re winning in the courts,” Hillary Byrnes, assistant general counsel for the United States Conference of Catholic Bishops, said Friday in a talk at St. Paul Cathedral.
Byrnes, staff attorney to the bishops’ Ad Hoc Committee on Religious Liberty, also spoke Friday about securing conscience protection for employers, and health care workers, through a bill in the legislature.
“Freedom to Serve” is the theme of this year’s Fortnight for Freedom, a period of prayer, education and action that the U.S. bishops have called for, being held June 21-July 4. Byrnes addressed the freedom to serve immigrants, trafficking victims and children needing adoption, all in accordance with Catholic teaching.
Byrnes spoke for the Worcester Diocese’s opening of the Fortnight, after Bishop McManus celebrated Mass. Bishop Reilly was present as well as a couple dozen priests and deacons, and more than 100 religious and laypeople.
Byrnes gave a history and an update of the HHS mandate. This mandate is part of the 2010 health care reform law, the Patient Protection and Affordable Care Act, also called Obamacare.
The mandate requires employers to pay for employee health insurance that includes contraceptives, sterilizations and abortion-inducing drugs that the Catholic Church opposes. Other religious groups are also among opponents.
In an address to U.S. bishops Jan. 19, 2012, Pope Benedict XVI spoke of efforts to deny Catholic individuals and institutions the right of conscientious objection “with regard to cooperation in intrinsically evil practices” and of the tendency to reduce religious freedom to freedom of worship, Byrnes said.
She said Pope Benedict called for informed Catholic laypeople who could counter a secularism which “would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society.”
“Hopefully that’s why all of you are here tonight,” Byrnes told listeners – “so you can talk” to others about these concerns.
HHS announced the mandate in August 2011 and received hundreds of thousands of comments, many in opposition, Byrnes said.
In early 2012, HHS said it would include a narrow exemption for “religious employers” – basically houses of worship. However, Byrnes explained, most Catholic ministries of service – such as schools, charities, and hospitals – are not considered “religious employers,” so they are subject to the mandate.
HHS did not propose any exemptions or accommodations for for-profit employers with religious or moral objections to the mandate, so it went into effect for them on August 1, 2012, Byrnes said.
In March 2012 and February 2013, HHS announced plans for rules governing non-profit employers who did not fit under the “religious employers” exemption, and a complex “accommodation” which didn’t change the situation much, Byrnes said. In June 2013, HHS released the final form of that exemption and accommodation.
In September 2013, Cardinal Timothy Dolan of New York said that this final form “still suffers from the same three basic problems: Its narrow definition of ‘religious employer’ reduces religious freedom to the freedom of worship by dividing our community between houses of worship and ministries of service. … Its second-class treatment of those great ministries – the so-called ‘accommodation’ – leaves them without adequate relief … Its failure to offer any relief to for-profit businesses run by so many of our faithful in the pews.”
The mandate began going into effect for non-profit entities on Jan. 1, 2014, or on the date that their insurance plan year begins. Some qualify for a “grandfathering” exception if they haven’t made major changes to their health insurance plans.
Byrnes said the mandate contradicts decades of conscience protection in federal law, and that the Church Amendment of 1973 (named for Sen. Frank Church of Idaho) allows health care providers with “religious or moral convictions” to object to abortion or sterilization.
For-profits and non-profits have been suing the federal government for requiring them to go against their consciences or pay fines. If an employer drops employee health insurance, the fine is $2,000 per employee per year, Byrnes said. If an employer only excludes certain objectionable drugs, the fine is $36,500 per employee per year.
She said plaintiffs generally argue that the government violated the First Amendment, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and the federal Religious Freedom Restoration Act of 1993, which says the government shall not burden a person’s exercise of religion unless there is a “compelling government interest.” Then the government must use “the least restrictive means” of furthering that interest.
In July 2012 Hercules Industries became the first employer to receive an injunction, or stay, against the enforcement of the mandate, Byrnes said. She said the Denver-based company, owned by Catholics, offered generous health care benefits and was active in the community. After they filed suit, the City of Denver withdrew an award it was about to give them for their community involvement. So the Colorado House of Representatives awarded them one instead.
In his homily at the Mass Bishop McManus told about one of the non-profits which filed suit. He said he knew the Little Sisters of the Poor, who had a home for the elderly poor, in the Providence Diocese. In 1871 Congress passed legislation to give the sisters federal grants for their work with the poor, he said.
Recently the sisters said they could not violate their consciences by complying with the HHS mandate; they would have to close their houses that cared for the poor instead, he said.
The night before the mandate was to go into effect for them, they received injunctive relief from the U.S. Supreme Court.