WASHINGTON — The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the health care law, may be on a collision course over another part of the law that will require church-run schools, hospitals and charities to provide free contraceptives to their employees.
Catholic leaders reacted fiercely when the administration announced Jan. 20 it would not free most religious employers from this mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”
Starting next year, employers, including religious employers, must pay for “all FDA-approved forms of contraception” for their employees, said Health and Human Services Secretary Kathleen Sebelius. The law says insurance plans must provide “preventive services” at no cost, and HHS decided contraceptives were included. Employers who fail to provide this insurance will face heavy fines.
Archbishop Timothy M. Dolan in New York, president of the U.S. Conference of Catholic Bishops, denounced the mandate as “unconscionable,” saying the church should not be forced “to act as if pregnancy is a disease to be prevented at all costs.”
Two colleges have sued to challenge the contraception rule. They are Belmont Abbey College, a Catholic school in North Carolina, and Colorado Christian University near Denver. College officials say the mandate forces them “to violate their deeply held religious beliefs.” The Catholic Conference has not yet decided on joining a lawsuit, but “the bishops are eager to pursue every lawful means to stop this mandate,” said Anthony R. Picarello Jr., the conference’s general counsel.
The legal challenge got a major boost nearly three weeks ago, when the high court strengthened the Constitution’s protection for religious freedom. In a 9-0 defeat for the administration, the justices said the First Amendment gives “special solicitude to the rights of religious organizations” in decisions about their employees.
At issue was a clash between the rights of church employers and the government’s interest in protecting the rights of employees. The administration had backed a job-bias suit filed by a teacher who was fired by a Lutheran school. Churches and church schools are not exempt from civil rights claims, the administration argued.
But Chief Justice John G. Roberts Jr. said the Constitution does not allow for “government interference with an internal church decision that affects the faith and mission of the church itself.” He called the administration’s view “extreme” and “remarkable.” Legal scholars called his opinion the court’s most important for religious freedom in two decades.
The Obama administration modeled its contraceptive rule on a 1999 California law. The rule, like the law, exempts churches and some other religious entities that “primarily” employ and serve persons of the same faith.
Catholic officials say this definition is too narrow and excludes church-run colleges, hospitals and charities and many primary schools. “For us, serving non-Catholics has been a point of pride, but we are punished under this rule for serving the common good,” said Picarello, of the Catholic Conference.
Women’s rights groups applauded the administration’s decision and said it means better and cheaper health care for tens of millions of American women. “This is good health policy and good economic policy,” said Dawn Laguens, vice president at Planned Parenthood. “It increases access to affordable birth control, but it is up to an individual employee to choose it or not. That’s very much the American way.”
Judy Waxman of the National Women’s Law Center said religious freedom is not threatened. “Religious freedom is guaranteed to the individual, and 98 percent of American women use contraception at some times in their lives. And that is true for Catholics as well,” she said.
But lawyers challenging the rule say the dispute is not about women using contraception, but about forcing the Catholic Church to pay for it. Hannah Smith, a former law clerk to Justices Samuel A. Alito Jr. and Clarence Thomas, filed the two college lawsuits on behalf of the Becket Fund for Religious Liberty.
The suits are at their early stage, and the administration is due to respond next month. If the case eventually reaches the high court, they would come before a tribunal with six Catholics among the nine justices.