Bishops' lawyers discusses HHS mandate history

By Tanya Connor

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.
In responding to a question after her talk, Byrnes said the sisters got a temporary reprieve Dec. 31, 2013 from U.S. Supreme Court Justice Sonia Sotomayor, who referred it to the whole court. Three weeks later the Supreme Court gave the sisters more time, while their case is in the lower courts.
There are now 100 cases challenging the mandate in federal courts around the country,  Byrnes said in her talk. About half involve non-profit religious organizations; the others involve family businesses run by Christians.
Of the 46 cases filed by for-profits that have received decisions so far, 40 have received preliminary relief, which means the mandate cannot be enforced against them right now,  Byrnes said. Where preliminary relief has been denied, these plaintiffs have appealed to federal appellate courts.
In March the U.S. Supreme Court heard oral arguments in cases for Hobby Lobby (a company owned by evangelical Christians) and Conestoga Wood Specialties (owned by Mennonites).  Monday’s decision will probably be applied to all for-profits and could affect non-profits, Byrne said.
Non-profits’ cases have progressed more slowly because of the temporary safe harbor and tweaks in the mandate for them, Byrnes said. Of the 30 cases that have received some sort of decision, 25 have received preliminary relief, she said Wednesday. Appeals continue in other cases. She said one or more of the non-profit cases will likely reach the U.S. Supreme Court by this summer or fall, with a Supreme Court decision handed down by next June.
The bishops and others continue to advocate for relief through the courts and also through the legislature,  Byrnes said.
She expressed hope for public support for a bill in the House and Senate called the Health Care Conscience Rights Act (H.R. 940/S. 1204). It would provide a religious exemption to the mandate and allow individual health care professionals to sue employers who require them to violate their consciences or face penalties.
She told of such a case, and said others have shared similar stories. In 2009 Cathy DeCarlo, an operating room nurse at New York’s Mt. Sinai Hospital, was told if she didn’t participate in a 22-week abortion she would lose her job. Before being hired, she had told the hospital that she does not participate in abortions. She has suffered from witnessing the abortion and accounting for the child’s body parts. Ms. DeCarlo sued the hospital, which illegally coerced her, but she could not go to court herself as a private individual.
The U.S. Bishops Conference Migration and Refugee Services has faced a similar situation.  Byrnes explained as follows.
In 2006, the U.S. Department of Health and Human Services contracted with the USCCB to serve victims of human trafficking through the Trafficking Victims Protection Act. At the USCCB’s insistence, the contract included a restriction – the USCCB would not counsel for or provide abortions or contraceptives.
In 2009, the American Civil Liberties Union of Massachusetts sued HHS, claiming that its contract with the USCCB violated the Establishment Clause,  Byrnes said.
In May 2011, she said, HHS announced that future trafficking services would be provided through grants rather than a contract and said a “strong preference” would be given to grant applicants willing to offer “the full range of legally permissible gynecological and obstetric care.”
The USCCB applied for a grant, but was not among the three organizations chosen in October 2011, two of which scored so low that they were deemed unqualified,  Byrnes said. But they got the grant anyway.
In March 2012, a federal district court judge in Boston sided with the ACLU,  Byrnes said. The decision was appealed, and, in January 2013, the appellate court vacated the lower court’s decision, since the contract had expired and was not renewed.
Byrnes said religious institutions should be free to apply for grants and to serve people just as secular institutions are.
Also threatening the Church’s freedom to serve are state laws that forbid “harboring” of undocumented immigrants.  Byrnes told of an Alabama law against which Catholic, Episcopal and Methodist bishops filed suit. She said even giving undocumented immigrants a ride to church or serving them in a soup kitchen could be considered “harboring.”
In August 2012, a federal appellate court blocked the Alabama law, saying that federal immigration law and policy “comprehensively addresses criminal penalties” and “a state’s attempt to intrude into this area is prohibited.” But  Byrnes said the Church must remain vigilant so its mission to serve the needy does not become a criminal offense.
In another threat to religious freedom, Catholic Charities in some places has had to cease adoption services or face civil liability for not placing children in the homes of same-sex couples or opposite-sex cohabiting couples,  Byrnes said. This happened in 2006 in Boston and San Francisco, 2010 in Washington, D.C. and 2011 in Illinois.
“We believe that each child has a right to a father and a mother,” she said. The USCCB, with other religious groups, has filed friend-of-the-court briefs in federal appellate courts around the country defending marriage between a man and a woman.
Byrnes also told of a rule the New York City Department of Education enacted in the early 1990s, that barred the Bronx Household of Faith and 60 other churches from renting public schools on weekends for worship services, though non-religious groups could rent the space.
The latest court ruling was against these small churches, but while appeals continue they continue meeting in the schools, she said.
Last year, the New York City Council passed a resolution 38-11 in favor of requesting that the state legislature overturn the Department of Education’s policy, she said.
Byrnes’ suggestions for responses to these threats to religious freedom included prayer, participation in the Fortnight for Freedom and asking one’s legislators to support the Health Care Conscience Rights Act.