Getting to Know the HHS Mandate

Expert From Becket Fund Explains What Is at Stake

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By Ann Schneible

WASHINGTON D.C, MARCH 5, 2012 ( The Health and Human Services (HHS) Mandate has fueled debates over the Obama Administration’s unwillingness to grant the necessary exemptions to religious institutions, forcing these institutions to pay for medical procedures that go against their religious beliefs.

Hannah Smith, Senior Legal Council of the Becket Fund for Religious Liberty, spoke with ZENIT to explain the HHS Mandate, its constitutional implications, and what kind of action can be taken against it.

ZENIT: Could you explain for our readers what the HHS Mandate is, and what the implications of this mandate are for Catholic institutions?

Smith: Back in August, the Department of Health and Human Services issued the mandate which requires all group health plans in the United States to pay for contraception, sterilization, and certain drugs that can cause an abortion. That mandate contains a very narrow exemption, and the exemption would permit a very few number of churches and religious orders to be exempted from its requirements.

The exemption from the mandate has four prongs: the religious employer must (1) have the primary purpose of inculcating religious values, (2) primarily employ people of its own faith, (3) primarily serve people of its own faith, and (4) fall within a certain tax-code provision (that it’s tax exempt, and it doesn’t have to file tax returns in the United States). So, it is a very narrow exemption that basically means very few religious entities will be exempted from the mandate.

Most faith-based institutions, like schools, universities, colleges, soup kitchens, homeless shelters, or other social service organizations would not be exempt from the mandate. That’s why the mandate has set off such a public outcry, because there are so many religious organizations that, because of their religious mission, could not cover these kinds of drugs and services, but under the mandate there is no opportunity for them to opt out.

ZENIT: The Becket Fund has been helping Catholic institutions to file lawsuits against the Obama Administration regarding this mandate. What sort of message are these lawsuits sending to the administration?

Smith: We represent three Catholic entities. The first is Belmont Abbey College, which is a small liberal arts school in North Carolina that was the first to file a lawsuit last November. And then, after Belmont Abbey College, we filed suit on behalf of EWTN and Ave Maria University, both in February. We also represent a fourth client, Colorado Christian University, an evangelical interdenominational Christian school, which is important, because this is not just a Catholic issue, but an issue that affects people of all faiths.

The crux of all four lawsuits is to challenge the mandate on the grounds that it’s unconstitutional under the First Amendment of the U.S. Constitution, and also that it’s illegal under the Religious Freedom Restoration Act, a federal law that prevents the government from imposing a substantial burden on free exercise, which this law does. I think the message these lawsuits send is that the government simply cannot trample on the religious freedom of all of these institutions, that it’s un-American, unprecedented, and unconstitutional.

ZENIT: There is a lot of debate regarding the principle of separation of church and state, and how this principle was intended to be applied. Could you explain this principle of separation of church and state, and clarify what it actually means constitutionally and in society?

Smith: In this context, separation of church and state most certainly means that the government should not have a hand in deciding which churches should get favored status and which shouldn’t. In our case, one of the grounds for challenging the mandate is to say that it’s unconstitutional under the Establishment Clause of the First Amendment to the U.S. Constitution, because it selectively favors some churches, and puts a burden on other churches, in the sense that the exemption allows the government to decide which churches should receive the exemption, and which shouldn’t. And that’s a violation of the separation of church and state under the Establishment Clause, for the government to be in the field of deciding which churches should be able to be true to their convictions and which have to violate them.

ZENIT: Recently, the House Judiciary Committee had a hearing, «The Executive Overreach: HHS Mandate vs. Religious Liberty,» at which the Becket Fund had a representative to testify; can you speak about some of the concrete objectives of this hearing, some of the main points that were raised, and whether the objectives seemed to be achieved?

Smith: There have been several hearings on Capitol Hill recently, which I think only underscores the fact that this issue is not going to go away. I think that the Administration had hoped that this issue would go away with its press conference in February where the President basically said: well, I will take care of this, just give me a year and I’ll figure it all out. Of course, the President’s so-called compromise really wasn’t any compromise at all. And in the wake of that so-called compromise, Congress has held numerous hearings to address this issue, to express its concern, to bring key members of the Administration to account for this flagrant violation of religious liberty.

I think our purpose in being there at that particular hearing was to state our objections to the mandate and to talk about our lawsuits, and to also inform the members of Congress who were there as to why this mandate is an offence to religious freedom. And I think we achieved our objective of bringing to light the particularly horrendous aspects of this mandate.

ZENIT: Certain other religious institutions have received exemptions under this mandate. Why is it that the Catholic Church seems to be excluded?

Smith: I can’t speak to the reason why the Administration has chosen to do what it’s done, why it chose to do what it did here. But I can say that I think it’s obvious that they knew that the mandate was in violation of core teachings of the Catholic Church and other churches that object to abortion-inducing drugs. There were opportunities for the public to submit comments to the Department of Health and Human Services even before the mandate was issued in August, and they received over 200,000 comments from various religious groups and individuals with concerns about potential services that may be included in the mandate. It’s quite clear that the government knew that this was going to be problematic and troublesome for various religious groups. And yet, it continued to press the policy objective behind the mandate, which is to increase contraception access at no cost. I think this speaks to the fact that this is a very ideologically-driven policy agenda that is being forced down the throats of religious institutions with complete disregard for the cost that it will impose on them. It’s important to remember that religious institutions that do not comply with this mandate will be fined roughly $2,000 per employee, which means that for most of our clients they will pay hundreds of thousands of dollars per year if they do not comply with this mandate. That kind of substantial burden on religious exercise is impermissible in the American legal system.

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