Seven consolidated cases, representing 37 distinct petitioners, will be heard in the U.S. Supreme Court on Wednesday in the case of Zubik vs. Burwell, which challenges the same mandate which Hobby Lobby successfully challenged, namely, the requirement that insurance policies cover abortion-inducing drugs, contraceptives, sterilization and related counseling.
The difference is that in this case, the petitioners -- myself among them -- are not businesses, but rather religious non-profits.
Along with objecting to the mandate itself, we petitioners are objecting to the regulatory mechanism, or "accommodation," which the government claims allows us to "opt-out" of the mandate.
We are claiming that the "accommodation" itself makes us complicit in the very coverage from which it claims to release us, and substantially burdens our exercise of religion in a way that fails to meet the strict test imposed on the government by the Religious Freedom Restoration Act.
The first of the 37 petitioners to challenge the mandate in court was Priests for Life, the nation's largest Catholic ministry focused on ending abortion.
Priests for Life vs. HHS is particularly well-suited to challenge this mandate, because the requirement to provide abortion-inducing drugs contradicts not only our religious faith but is a direct, head-on collision with our mission and raison d'ê·tre, which is to end the practice of abortion. One of the petitioners in our Priests for Life case is Alveda King, niece of Rev. Dr. Martin Luther King, Jr. She heads up our African-American outreach.
Among the many key points to understand about the mandate and our objection to it are the following.
First, this mandate does not come from our elected lawmakers in Congress, who did not include in the Affordable Care Act any requirement that abortion-inducing drugs, contraceptives, or sterilization be offered in health insurance plans. Instead, it spoke of the duty to cover 'preventive services' in terms of preventing disease, not pregnancy. It remains unclear to us, moreover, how a regulatory agency can trump Congress, which did not exempt the Affordable Care Act from the requirements of the Religious Freedom Restoration Act.
Second, in disputes like this, "religious freedom" is sometimes construed in such a way as to refer just to what takes place in Church on Sunday. But the religious freedom we are defending in court this week is not just about how we conduct worship, but how we conduct our business. The "exercise of religion" which both the Constitution and the Religious Freedom Restoration Act protect refers to anything people do or refuse to do for religious reasons, in any aspect of their lives. In this case, the "free exercise of religion" we seek to defend is our right to offer health insurance to our employees in accordance with the demands of our faith, and therefore free of any coverage of abortion or contraception.
Third, some of our opponents accuse us of trying to impose our beliefs upon our employees. First of all, the employees of Priests for Life are unanimously in support of our lawsuit, and even if they were to seek these 'services' that we find objectionable, they would not want us, their employers, to be forced to violate our religious beliefs. And that is the point. The lawsuit is not aimed at preventing any action by our employees; it is aimed at preventing actions by the government that force us to violate our faith.
Fourth, a key argument of the government is that signing one of the two forms offered to us for the "accommodation" does not constitute complicity in the wrongdoing we seek to avoid. This is perhaps the most fatal flaw that the government, and some of the lower courts, have made, and it reveals a stunning lack of appreciation for religious liberty: the government is telling us our religious beliefs are wrong. First of all, in the words of the Supreme Court, “Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim (Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 887 (1990)). The believer himself is the final and only arbiter of the validity of his beliefs; the government is charged only with ascertaining the sincerity of the believer -- which the government does not contested in this case -- and whether substantial pressure is being put on the believer to act contrary to those beliefs.
But the complicity in which the "accommodation" involves us is evident when we consider that under the accommodation, the same objectionable coverage is provided to our own employees through our own insurance plan offered by our own organization, at our own authorization and only as long as we maintain the relationship with both the insurance company and the employee. How, then, are we not involved?"
Finally, we are objecting in this case to the fact that the government, in relation to this mandate, irrationally divides believers into two categories, one of which is exempt from the mandate and the other of which is obligated by it. The way it distinguishes these two groups has nothing to do with religion, but rather with the classifications of the religious organizations within the tax code.
So, for instance, parish churches are exempt, but Priests for Life, who sends priests into those parishes, is not. Catholic Charities of the Diocese of Erie is exempt because it is part of the corporate structure of that diocese. Catholic Charities of Pittsburgh, however, is not exempt, because it is incorporated separately from that diocese. Yet the beliefs, the work, and the objections to the mandate of both groups are the same. Congress has specified that an organization “is associated with a church . . . if it shares common religious bonds and convictions with that church.” 26 U.S.C. § 414(e)(3)(D). This inclusive definition would include us and the other petitioners.
We are confident about the outcome of this case, because it strikes so deeply at a foundational principle of American life.
Religious freedom belongs to all Americans, and the role of government is neither to impose nor to restrict belief, but simply to protect it.