Notre Dame & others sue Obama administration over contraception mandate.
Apparently university president Fr. John Jenkins is done studying the proposed contraception-coverage accommodation, because Notre Dame has filed suit against HHS Secretary Kathleen Sebelius, Labor Secretary Hilda Solis, and Treasury Secretary Timothy Geithner, claiming the mandate violates the school’s religious freedom. (A total of forty-three plaintiffs have joined twelve suits throughout the country, including the Archdiocese of New York and the Franciscan University of Steubenville, which, as I previously reported, will not be subject to the mandate because its employee health plan is grandfathered.)
In a letter to the university community, Jenkins adopts the language of the U.S. Catholic bishops’ Ad Hoc Committee on Religious Freedom:
Today the University of Notre Dame filed a lawsuit in U.S. District Court for the Northern District of Indiana regarding a recent mandate from the U.S. Department of Health and Human Services (HHS). That mandate requires Notre Dame and similar religious organizations to provide in their insurance plans abortion-inducing drugs, contraceptives and sterilization procedures, which are contrary to Catholic teaching. The decision to file this lawsuit came after much deliberation, discussion and efforts to find a solution acceptable to the various parties.
Of course, Jenkins doesn’t want anyone to get the wrong idea: This isn’t about preventing women from accessing contraception. It’s about protecting the university’s conscience from government coercion.
For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
You’ll recall that Jenkins’s initial response to the proposed accommodation was relatively positive. In March, the Obama administration released its proposed rule for accommodating the religious objections of non-exempt Catholic institutions, providing a ninety-day window for public comment. That window won’t close for another month. So why is Notre Dame suing now? Here’s how Jenkins explains it:
Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation provides little in the way of a specific, substantive proposal or a definite timeline for resolution.
That’s one way to read the proposed rule. Have a look yourself. The document offers several (admittedly byzantine) methods for shifting responsibility for providing contraception coverage from the employer to a third party.
Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines.
Nonsense. The contraception mandate does not go into effect until August 2013. It doesn’t take a year to put together an employee health plan. So why sue before exhausting all other options?
Whatever the university’s reasoning, it certainly has made a media splash, given that its announcement comes just as forty-two other plaintiffs have gone public with their lawsuits. The list includes thirteen dioceses, including the Archdioceses of New York, Washington, and St. Louis; the Dioceses of Dallas, Ft. Worth, Rockville Centre, and others. Does anyone really believe a Catholic diocese will be subject to the contraception mandate? HHS doesn’t. From the most recent proposed rule:
In addition, we note that this exemption [that is, the full exemption, not the proposed accommodation] is available to religious employers in a variety of arrangements. For example, a Catholic elementary school may be a distinct common-law employer from the Catholic diocese with which it is affiliated. If the school’s employees receive health coverage through a plan established or maintained by the school, and the school meets the definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
In other words, HHS will not require dioceses to pay for contraception coverage. Diocesan employees won’t even be eligible for contraception coverage under the accommodation. So why would plaintiffs sue now over a mandate that won’t affect them and won’t go into effect for another fifteen months? The Fortnight for Freedom doesn’t start for another four weeks.
The U.S. Conference of Catholic Bishops has decided to sit this suit out. It is, however, “serving in a coordinating and facilitating role,” according to USCCB spokeswoman Sr. Mary Ann Walsh. “USCCB concerns are addressed in the lawsuits that were filed,” she told me. “There was no need to pile on.”
Tags: contraception, HHS, USCCB
Cathleen Kaveny may well hesitate to weigh in on this one.
Jenkins is a thoughtful man, it seems to me, but all too often he has to act as the mouthpiece for those with the real power or influence — the Trustees, the Bishop of Fort Wayne/South Bend, and the conservative alumni/bloggers.
This is especially the case after the Vagina Monologues/Queer Film Festival/Obama degree controversies. There are plenty of vociferous Catholics who utterly loathe some of the Notre Dame theologians and would like to see Notre Dame toppled. Being stripped of its position as a Catholic university would destroy the Order, the CSC, because the seminary would close.
Jenkins is caught in a very hard place.
To report on the multiple suits, Catholic News Service leads with a statement on “a mandate that would require them to provide contraceptives and sterilization to their employees.” Copyright Catholic News Service/USCCB The truth will free you but not yet.
http://www.catholicnews.com/data/stories/cns/1202080.htm
The conservative noise machine in the United States makes a lot of noise.
So it is not exactly surprising to see conservative Catholics in the United States also make a lot of noise.
As American citizens, conservative Catholics in the United States are free to criticize the U.S. government and even file lawsuits against the U.S. government.
However, the mere filing of a lawsuit against the U.S. government is not the same as winning the lawsuit, to spell out the obvious.
I don’t think that Fr. Jenkins and the University of Notre Dame are going to win this lawsuit. But of course they are free to try.
Wow. Is it just me, or is it all but impossible to see the dioceses’ lawsuits (and Steubenville’s) as anything other than political activism on behalf of the GOP? It’s clear that they are not subject to the mandate. I guess those dioceses must be rolling in money to choose to spend it on legal harassment of the Obama administration. Donors to those dioceses might save themselves a step and send their checks directly to the Republican National Committee.
But Notre Dame? I’d assumed that cooler heads prevailed there. I wonder what its coverage pays for now. And I imagine there’s got to be substantial consternation among many of the faculty and students.
Cleverly, the administration announced this suit after graduation, counting on the students (and faculty) to forget all about it by the time the university regroups for the fall semester. We’ll see.
Grant,
Isn’t it possible that those opposing Obama, Sebelius, et al. in this matter sincerely believe the contraceptive mandate, in whatever form, is an infringement on religious liberty and are, in all good faith, making an effort to right a wrong? Is the mandate clearly right? And are its opponents so clearly wrong that anything they do to fight it must be instantly denounced in Commonweal? I lean toward supporting the mandate, but the tone here of late makes me uncomfortable. I have a lot of respect for many of the people who strongly oppose the mandate, such as Rick Garnett, who is on the Ad Hoc Committee on Religious Freedom and who (I am guessing) had a hand in orchestrating Notre Dame’s legal position.
Go Irish!
Is it just me
Lisa,
Its just you. The regulatory hijinks (Grant used the word byzantine) required to achieve HHS’s goals for this mandate indicate that the administrations motives are not pure.
Our Sunday Visitor has joined with the diocese of Ft. Wayne-South Bend as a plaintiff in a similar lawsuit.
They are selling a leaflet on “Catholics and Religious Liberty” which looks like something you may be handed outside your church door. You can read it here:
https://catalog.osv.com/PDFs%5CP1346_web.pdf
The pamphlet has the imprimatur of the bishop.
“Is it just me, or is it all but impossible to see the dioceses’ lawsuits (and Steubenville’s) as anything other than political activism on behalf of the GOP?”
Wow. I think it’s time for some cooler heads to prevail around here, too.
““Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs.”
I’m not sure that everyone supporting the lawsuits will be happy with that part of Fr. Jenkins letter – at leat as far as it relates to Catholics.
David: “Isn’t it possible that those opposing Obama, Sebelius, et al. in this matter sincerely believe the contraceptive mandate, in whatever form, is an infringement on religious liberty and are, in all good faith, making an effort to right a wrong?” Yes. But I still want to know why Jenkins didn’t wait until the comment period was over to see what the accommodation would look like.
“Is the mandate clearly right?” No, but it is not clearly wrong either — something rarely acknowledged by its critics. But if a Catholic organization is going to claim it’s clearly wrong, then they have to show how it violates religious freedom.
“And are its opponents so clearly wrong that anything they do to fight it must be instantly denounced in Commonweal?” Denounced? Give me a break. I haven’t denounced anyone. You’re overreacting.
Mr. Gallicho,
You might wish to consult the legal briefs of the dioceses and other institutions involved to understand their position here. You might also wish to consult with legal experts before writing paragraphs like the one here that begins “in other words,” for your interpretation of that paragraph is not widely shared. It may well be that some dioceses will qualify for exemption; it is far from clear that any, let alone all, will. Upon what legal analysis have you based your assertion that “HHS will not require dioceses to pay for contraception coverage?” The language you quote is entirely conditional.
Further, upon what factual basis do you make your assessment that the University can simply wait months before planning its insurance coverage for 2013? I serve on a College Board, and we tend to make plans–financial and otherwise–quite far out. I would be interested to know how you could know this was “nonsense.”
Thanks in advance for providing the factual and analytical bases for your very strong judgments about the University and the Dioceses (inter alia) involved in these lawsuits.
Fr. Dailey:
As HHS has made clear, nonprofit religious organizations that primarily employ and serve co-religionists, and whose primary purpose is the inculcation of its religious values, will be completely exempt from the mandate. Their employees will not even be able to access contraception through the proposed accommodation. By that definition, a Catholic diocese would certainly quality for the full exemption. Furthermore, as I said in my post, the most recent proposed rule offered by HHS cites a diocese as an example of an exempt employer:
Does the college board on which you serve decide how to structure employee health plans? It doesn’t take months, certainly not fifteen of them, to decide on an employee health plan. Commonweal has had to change its employee health plan several times over the years. It wouldn’t be difficult to tell your broker that you want to see bids for two plans: one with contraception coverage and one without. Of course, who knows what form the accommodation will take? It could be that Notre Dame won’t have to contract for contraception coverage at all.
The most important philosophical/legal claim in Jenkins’s letter seems to be this one:
“For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions.”
As I’ve argued before, however, the government is always deciding which religious organizations are “sufficiently religious” to be awarded exemption from government mandates (e.g. taxes, employment laws, etc.). The whole argument for an expanded religious exemption is predicated on the notion that the government decides who it will recognize as “religious.” It is simply ridiculous to suggest that the government get out of the business of determining what counts as a “religious organization,” thus allowing every group to self-define as such. This would result in chaos. Again, think of Jehovah’s Witnesses opening hospitals that don’t provide blood transfusions. If anyone is undermining anything here, it is those bringing the law suit, who are undermining the separation of church and state by making a muddle of the definitions involved in maintaining the distinction.
I appreciate many of these remarks and especially the exchange between Bill Daily and Grant Gallicho. Keep it up! We need all the clarity we can get.
While many of you know academia and particular pressures at Notre Dame well, it is telling to see this coordinated filing today. The bishops want a D-day type of operation with an element of surprise and I guess they achieved it. How prepared their plan is is another story and their putting it forward without even the courtesy of waiting to see what the Administration might propose gives thema suppopsed advantage. They must feel there’s more energy for this fight than the other front attacking the LCWR or those dastardly Girl Scouts. The ill-will of the USCCB is manifest — whether or not they are party to it.
In short, as is demonstrated on so many fronts, the bishops are in search of enemies and need to create some diversionary tactics before Philadelphia may weigh against them
Mr. Gallicho,
Again, I suggest you read the brief of the Archdiocese of New York for the reasons they and their counsel are not as certain as you that the exemption applies to them. Do you know how many of the Archdioceses employees are Catholic? They have some 10,000 employees and nearly 8,000 of those are laypeople. Do you know how the courts will interpret the language about primary purposes and primary recipients of services? And, again, the language you quoted does not seem to me to cite a diocese as an example of an exempt employer. Rather, it notes that if a school provides insurance through the diocese AND the diocese is exempt (note, this seems to be part of the conditional, as in “and if the diocese itself is exempt”) then the exemption extends to the school.
The board on which I sit begins it process of budgeting and planning quite far in advance. We recently approved the final FY 2013 budget, but will begin the process of formulating the 2014 budget at our Fall 2012 meeting. Perhaps this seems like nonsense to you as well? We meet as a board three times a year.
You may be correct in your assertion that most (perhaps even all) dioceses will qualify for the exemption–but none of the language you have quoted is decisive on that point. You may also be correct that, in the end, some accommodation obviating the need to initiate litigation might be reached–but you have yet to establish any factual basis for the claim that the litigation can wait because there’s plenty of time. It seems to me that you need more than your anecdotal sense of how easy it would be for Commonweal to make a change in its benefits plans before declaring that Fr. Jenkins’s assessment of the need to initiate this litigation now is “nonsense.”
In this instance, the variables include the possibility (now the reality) of the likelihood of bringing a lawsuit itself–these things take time. Thus, given the months of delay and uncertainty involved in whatever might result here, the prudent course is to begin the litigation now. If the litigation were to become moot because some obviously adequate accommodation is reached, then the litigants and the courts will happily draw that conclusion.
Grant,
How many soup kitchens, job training programs, homeless shelters, schools or other activities open to non-religious and how many non-catholic employees will it take to make a diocese lose its exemption, which you believe they clearly have. Has the administration estblished a test based on % of activities or # of employees? We saw how this administration treated a request for a religious exemption in the Hosanna-Tabor case. Why should we expect it to act in such a way that will give religious organizations the benfit of the doubt wen it comes to these exemptions?
By the way, the excerpt you keep citing in support of your claim doesn;t say what you think it does. All it says is that a diocese-affiliated school would qualify for the exemption if plan is provided by the school and the school independently qualified or if the plan is provided by the dioces and the diocese qualifies for the exemption. It does not say that all catholic schools and all dioceses qualify for the exemption. Each school and diocese must be examined on a case by case basis to determine if they qualify.
Fr. Dailey:
If HHS rules that a Catholic diocese is not exempt from the mandate, I will join the chorus of criticism that will doubtless arise in response. But I find that highly unlikely.
I take it that your answer to my question is no, that your board is not involved in selecting employee health plans. Approving an annual budget is a different animal. Obviously that’s done well in advance. But Jenkins claims that the time it would take to figure out the accommodation makes it “impossible” for the university to plan for and implement any changes to its employee health plan. It’s not impossible. The university just has to ask for bids for two types of plans. He doesn’t explain why the university couldn’t wait out the 29 days remaining in the comment period for the proposed accommodation.
How amazing that the Archdiocese of New York can persuade just one person to get ordained this year but has all the energy and resources to play politics continually. New York as well as all the dioceses cannot persuade its own Catholics that contraception is wrong, yet it wants to influence the presidential election.
“I guess those dioceses must be rolling in money to choose to spend it on legal harassment of the Obama administration.”
We need investigative reporting to discover who is giving the bishops money.
Isn’t this a peremptory power play to grab the high ground so that the Administration proposal will either appear in response to this OR in defiance of it? The first would show the bishops muscle, the latter the latter, more fodder fori ther “we told you so.”
The accomodation may or may not be satisfactory or workable, but this way bishops get to be the actors, not just the reactors again.
And have I mentioned over and over Philadelphia and Kansas City? A conviction in either will feed stories for a long time… better to have this “freedom call” to react to,.
The archdiocese of New York is one of the dioceses which filed suit against the governmnent today.
Since this is Cardinal Dolan’s own diocese it is, presumably, the most reliable presentation of the USCCB’s views.
Here is the press release from the archdiocesan website:
http://www.archny.org/news-events/news-press-releases/index.cfm?i=24537
And here is the legal complaint, setting out he issues as the archdiocese sees them:
http://www.archny.org/media/links/FreedomofReligion%5FLawsuit2012.pdf
“Donors to those dioceses might save themselves a step and send their checks directly to the Republican National Committee.”
But then they won’t get the charitable contribution tax deduction. Can’t have that! This religious stuff is OK, but it needs a tax writeoff to be truly orthodox.
Concerning the number of ordinations in the Archdiocese of New York in 2012 (the gooogle search term I used):
“The archdiocese hopes to ordain eight men in 2013, five in 2014, and perhaps 10 or more in 2015, Father Sweeney said. This year, because of a change in the seminary program, only one priest is expected to be ordained. Father Sweeney [director of archdiocesan ordinations] explained that the seminary formerly had a five-year program: one year of philosophy and four of theology. In 2006 the U.S. bishops asked for two years of philosophy; inserting the extra year caused a “gap year” in which there were no candidates.”
Mr. Gallicho,
I’m not sure how it’s relevant whether, as a board member, I participate in selecting health plans. I can certainly imagine discussing the institutional response to the mandate at the board level, but my point was merely that universities and colleges are quite complicated and try to plan very carefully. This sort of planning isn’t merely a matter of “how much will it cost,” but of “how will we respond if the following happens.” One of those eventualities in such circumstance is sometimes litigation, and the timetable for when one files litigation includes estimating the time for the litigation to proceed, including any appeals, etc.. This sort of contingency planning, in an area that involves not merely budgets but moral, pastoral and pedagogical considerations strikes me as a bit more complicated than calling up and asking for “two bids.”
It seems to me that the burden of proof for declaring somebody’s argument “nonsense” (which is tantamount to calling it disingenuous, since I presume you don’t question Fr. Jenkins’s ability to know nonsense from sense), is rather high, and rests with the person making the claim. I do not believe you have met that burden. The 29 remaining days of the comment period do not seem to me relevant one way or the other; the expected months for further action by the agency seem to me more important. These determinations are typically made, as I’m sure you know, in conjunction with litigation counsel. I am a lawyer; I’m not representing the university in this matter and I haven’t written in this area as a scholar. I am reluctant in general to second guess the judgments of those closest to hand, let alone to call them “nonsense” without more to go on than you have provided your readers here.
“Wow. Is it just me, or is it all but impossible to see the dioceses’ lawsuits (and Steubenville’s) as anything other than political activism on behalf of the GOP? ”
I don’t doubt we’ll learn more about the legal strategy. But from a political point of view, doesn’t this seemingly-coordinated action play into the meme of the “War on Women”? I doubt that the GOP would want to pump any air into that deflating balloon.
nonprofit religious organizations that primarily employ … co-religionists.
Grant,
I think your analysis of this language is too flip. It is not highly certain that a diocese would qualify.
Also, as a factual matter, the mandate is effective in August this year though enforcement action will be delayed for plans starting after August 2013.
The Our Sunday Visitor brochure (John Hayes at 2:04 p.m.) has dropped all the bipartisan eyewash about Alabama and Connecticut, New York City and the UCal-Hastings Law School in the USCCB’s original screed. The OSV is all federal (Obama) government offenses all the time.
You know, I might almost be willing to join the crusaders if they would just have the decency and honesty to say, “We know we campaigned and lobbied for universal health care for 40 years, but now that we see what it would look like, we see it won’t work and apologize for misleading everyone about how good it could be for all those years.” But this campaign is proceeding from serenity (for health care) to serenity (against) without benefit of intellectual rationalization.
Question: why only 13 out of nearly 200 dioceses signing on?
I do appreciate Bill Donohue at moments like these, when he feels the Force:
“The Catholic rebellion has begun.”
http://www.catholicleague.org/catholic-rebellion-has-begun/
Dum-dum-DA-dum-dum-DA-dum!
Appreciate the exchange, Bill and Grant.
I don’t know if you would care to comment as a trustee and a lawyer how you would see this action if you were representing the Administration or a trustee of a university thaat did not sue — perhssp you are. While it is a notable coalition to have Notre Dame and the various dioceses (and Our Sunday Visiotor???!!!), what does anyone make of the fact of the allof the diocese didn’t join it and that there ae aparently only Note Damea nd Steubenmville among universities? In addition to focussing on the foreground of the suitors, should we be aware of the background of the others?
Dear David,
Just a brief comment, representing my personal answer to your question (not that of any institution I may serve in any capacity). As a general matter, I don’t think there’s much to be inferred from the circumstance you describe–though it’s a very reasonable question. The reason I think the answer to what one can make of the relatively small number of dioceses and universities currently suing is “not much” is simply that, once some lawsuits have been filed, the incentives for others to be filed diminishes. Further, the resources–in terms of, say, finances and expertise–of different institutions vary widely. Finally, there is a matter of prudential judgment involved here as well, and those judgments too can vary even where resources and expertise might be on a par.
But I speak neither for Notre Dame (where I teach) nor for other schools that have not brought suit.
Fr. Dailey: You brought up your membership on the board of a college, as though that experience gave you insight into the question of how long it takes to solicit and decide on bids for employee health plans. It is not a difficult, or exceptionally time-consuming process — a good deal simpler than planning a large university’s annual budget. In this case, we know what the possible outcomes will be come August 2013: 1. Notre Dame will have to contract and pay for employee health plans that include contraception coverage. 2. Notre Dame can contract and pay for health plans that exclude contraception coverage. 3. Notre Dame can decide to drop employee health coverage altogether, and budget for the fines and possibly a wage increase to offset the loss of compensation in the form of the health-coverage benefit. This is not rocket science.
What’s relevant about the twenty-nine days is that there might be something firmer to respond to once the comment period is over. The accommodation might address the university’s religious-freedom concerns. So why not wait?
Jenkins is the one who claimed that, given the timetable, this was the only possible course of action. In my view, he has not made his case, because deciding on employee health-care plans is not a fifteen-month job. Calling someone’s argument nonsense is quite a bit different from calling it disingenuous, of course. Nor is calling someone’s argument nonsense the same as accusing the person who made it of being incapable of telling sense from its opposite.
To poach from a sister publication:
“Submitted by Jim978 (not verified) on May. 21, 2012.
The principal difficulty as I see it is not the position of HHS. Notre Dame (like every other employer) assumes the duties of a fiduciary when it administers a health care plan for its employees. Like all fiduciaries, it has a duty to administer that plan for the exclusive benefit of its employees. Please, someone correct me if I am wrong, but I have yet to hear an argument made that Notre Dame is refusing to include contraceptives in its plan because that is what is best for its employees.
The reason Notre Dame is not making such an argument is that this isn’t about what is best for the employees. This is about a conflict between the interests of Notre Dame and the interests of the participants in their plan. In any case involving a conflict of interest, a fiduciary has a legal and ethical duty to step aside in favor of a third party free of conflict. For a fiduciary to do otherwise is a breach duty.
Freedom of religion does not include the freedom to breach one’s fiduciary duty.”
http://ncronline.org/blogs/distinctly-catholic/notre-dame-sues-hhs-over-mandate
Mr. Gallicho:
A final couple of words. First, nowhere did I purport to have insights into bid solicitations–I merely suggested that universities and colleges are complicated creatures in terms of governance and planning. I further suggested, in fact, that this issue is not reducible to mere bid solicitation. Second, the end of the comment period does not indicate that in 29 days there will be something more for the University (and others) to respond to–the sense, as indicated in Fr. Jenkins’s comments, is that this will likely take months. Do you have information to the contrary?
I will let the argument about what one is accusing another of in accusing him of spouting nonsense rest on the briefs.
Fr. Dailey: There is no argument. If I had found his argument disingenuous, I would have said so. I don’t. I just find it totally unconvincing.
But let us agree that large, complex institutions are large and complex. What we’ll have to agree to disagree about is the time it takes to figure out what kind of health coverage to offer one’s employees. That is what’s at issue here. Jenkins claims there is not enough time to make modifications to the health plan. That entails bid solicitation. Pedagogical signals are irrelevant to the point he was trying to make. Not that anyone is confused about the university’s position on contraception.
Grant,
Perhaps one reason ND and the others did not wait until the comment period was over is that the lawsuits are being used as a negotiating tool with the administration to try to get a better accommodation or revised exemption. I’ve seen this tactic work during negotiations with large insurance companies, who sometimes won’t agree to respond appropriately until a declaratory judgment action is filed.
I invite all to view Huffington Post take with “Touchdown Jesus” versus the hands held high triumphant Obama…
I appreciate your remarks. Father Dailey, but they also illustrate my point about the various considerations and costs in such a suit — of which Iknow nothing. I think if ever the backroom story emerges on how this was all planned and coordinated, who was pucshing what for whom, etc, it will make for another interesting footnote in this saga.
As others have refereced, much of this rests on the articulations of Justice Scalia and the various categories of “religious institutions.” Perhaps they’ll be a commission to determine how newspaper like “Our Sunday Visitor” qualify?
Anyone investiagating teh Jones-day firm that is handling all of these suits pro bono?
“However, the mere filing of a lawsuit against the U.S. government is not the same as winning the lawsuit, to spell out the obvious.
I don’t think that Fr. Jenkins and the University of Notre Dame are going to win this lawsuit. But of course they are free to try.”
Don’t worry; I’m sure there’s a letter from the University faculty even now questioning Jenkins. Then the magisterium will have spoken.
Another point of view:
http://www.dailykos.com/story/2012/05/16/1092167/-Catholic-bishops-threaten-to-sue-for-their-right-to-hate-lady-parts
There is nothing inherently wrong about filing these legal challenges. Nor is there anything illegal or unquestionably immoral about a political campaign against the HHS mandate.
There are, though, good reasons to question the practical wisdom about the campaign the USCCB is promoting. Grant and others have given those reasons and I am generally in accord with them. But I do have two objections about the way the USCCB’s campaign has been conducted thus far.
First, the USCCB ought to make it explicit that their decision to wage this political campaign is a prudential decision and is essentially subject to defensible challenge by other thoughtful people, Catholics and otherwise. To allow it to be regarded as a test of one’s devotion to his or her Catholic faith is to mislead.
Second, some of the rhetoric already used in support of this campaign has been defamatory. It is incumbent upon the USCCB or the relevant local bishop to rebuke these rhetorical excesses. The excesses cannot rightly be considered constructive.
As someone who thinks that the bishops’ campaign is misguided, I too have the duty to avoid defaming them, but it is not defamatory to insist upon these two points.
David Pasinski:
Re: Your Comment
“Anyone investiagating teh Jones-day firm that is handling all of these suits pro bono?”
Well, thanks to Google, here is some info.
Steve Brogan Notre Dame Law School’77, who is the managing partner of Jones Day, returned to the Law School Wednesday October 6 (2010) to talk to interested students about the future of law practice. The discussion was held in the McCartan Courtroom (a gift from Jones Day in honor of its previous managing partner).
As David Nichol pointed out:
“Rick Garnett, who is on the Ad Hoc Committee on Religious Freedom and who (I am guessing) had a hand in orchestrating Notre Dame’s legal position.”
It’s who you know… .
“Steve Brogan Notre Dame Law School’77, who is the managing partner of Jones Day, returned to the Law School Wednesday October 6 (2010) to talk to interested students about the future of law practice. The discussion was held in the McCartan Courtroom (a gift from Jones Day in honor of its previous managing partner).
As David Nichol pointed out:
“Rick Garnett, who is on the Ad Hoc Committee on Religious Freedom and who (I am guessing) had a hand in orchestrating Notre Dame’s legal position.”
It’s who you know… .”
- This keeps getting better.
Many feel that the big push is coming in June from the bishops to declare that they are being persecuted in this country. The poor souls who tortured so many victims of abuse, by throwing barracuda lawyers at them, now feign persecution. This will be the loudest laugh of the laughing stock bishops. The other fact is that most of the Catholic institutions will be exempt, including Georgetown. Sr. Simone Campbell should be leading this thing rather than apologists like Bill Dailey. I am struck by the lawyerese language that Bill Dailey uses. Like this, for example: ” I am reluctant in general to second guess the judgments of those closest to hand, let alone to call them “nonsense” without more to go on than you have provided your readers here.” Sounds good but says nothing. Nevertheless, it is important to be aware of this latest apologists for the bishops et alii as it is to note the enormously rich law firm of Jones-Day. Follow the money always. Here is a taste of Dailey.
http://video.msnbc.msn.com/up-with-chris-hayes/46351581#46351581
David Pasinski, I found This reporting that jones Day is handling all 12 lawsuits but it doesn’t indicate that they are doing it free. Did you find that somewhere?
“It was one of twelve lawsuits filed against the Federal Government of the United States. The Twelve Lawsuits were coordinated by the prestigious power house law firm of Jones Day and strategically filed throughout the United States.”
The Archdiocese of diocese has done two videos presenting the arguments:
http://www.preservereligiousfreedom.org/
Archdiocese of Washington
How much will this lawsuit cost? Will the Archdiocese of New York have to lay off some (more) of those thousands of employees it has and mortgage or sell its property to pay for this legal adventure? I wouldn’t be surprised. And this, when the likelihood of winning is small.
Seriously, who is bankrolling this? Am I wrong in thinking that such lawsuits are expensive? That this quixotic gesture will cost millions?
There have already been huge cuts in diocesan services that would build up the local church. Not enough money. There have been schools and other institutions shuttered. Not enough money. There have already been big payouts for the abuse victims, and now … They are using their remaining money to sue the government?
Evaluated on the level of stewardship this is a scandal. There are needy people out there. Our moral purity will not feed the hungry. Our handwringing over remote material co-operation with evil will not house the homeless.
But I have to be philosophical about this. The bishops won’t hit bottom until the money runs out. Perhaps this is what has to happen.
I read this morning in the Huffington Post:
“Pittsburgh Bishop David Zubik, whose diocese is among those suing the government, said the law firm Jones Day was handling the lawsuits pro bono nationally.”
“How much will this lawsuit cost? Will the Archdiocese of New York have to lay off some (more) of those thousands of employees it has and mortgage or sell its property to pay for this legal adventure? I wouldn’t be surprised. And this, when the likelihood of winning is small.”
Isn’t it fair to ask how much taxpayer money will be spent defending a needless change instead? And given the Obama administration’s lack of recent success on religious liberty issues in front of the federal courts recently (9-0 anyone?) I wouldn’t be too quick to dismiss the suits your honor.
And this, when the likelihood of winning is small
Rita,
You cant know this.
There’s no free lunch.
Pro bono does not mean that there will be not cost to the Dioceses and Schools. They will have to cover administrative expenses.
Thanks, Helen. Thr ave me the lead i needed to find it:
“Our lawsuit is one of 12 such lawsuits being filed nationwide today representing 43 separate plaintiffs. Among the others joining in the lawsuit are: the University of Notre Dame, the Diocese of Erie, Franciscan University of Steubenville, the Archdioceses of Washington, New York and St. Louis, Catholic University of America, the Michigan Catholic Conference and Our Sunday Visitor, Inc. We are being represented pro bono in our lawsuit by the law firm of Jones Day. No diocesan funds are being used in our lawsuit.”
http://www.diopitt.org/sites/default/files/Bishop%20Zubik's%20Letter%20to%20the%20Faithful.pdf
Are no other church funds being used, either? USCCB, etc.? For expenses rather than lawyer time?
Commonweal’s server has a problem with some URLs. You’ll have to copy that one and paste it into your browser.
I think Father Jenkins deserves a respectful hearing on this. He is certainly not a political foe of the president. He proved himself capable of resisting great pressure from the bishops when he awarded an honorary degree to the president.
As his statement shows, Father Jenkins tried from the beginning to work through the process to correct what he regards as an infringement on the school’s rights. The August 2013 date for the contraception mandate to go into effect may appear to be far off, but it wouldn’t seem that way for someone in charge of managing the budgetary and insurance needs of such a large institution.
“We have filed this lawsuit neither lightly nor gladly,” his letter says. I haven’t seen any basis to question that.
What Bernard Dauenhauer said at 5:15pm. Very good.
I don’t know if you’ve seen my Open Letter to the U.S. Bishops: Let’s Not Be a Laughing Stock, Okay?” published online in the National Catholic reporter over the weekend.
Go here: http://ncronline.org/node/30413
What it says is this: Catholics have already vetoed the so-called teaching on birth control. One problem is that Dolan and company have paid no attention to what the people have done. A second problem is that the Obama Administration hasn’t paid any attention either. It should assert, either in the public prints, or in its answer to the lawsuits filed today, that what Dolan calls “Catholic teaching” is not Catholic teaching because it hasn’t been “received.” See the learned paper written on this by James Coriden, a former president of the Canon Law Society of America. His paper, “The Doctrine of Reception” explains the historical and theoretical underpinnings of a long-forgotten notion—that we live in a
people’s church, where the people can and do determine what is “of the faith” and what is not.
Find the Coriden paper here http://arcc-catholic-rights.net/doctrine_of_reception.htm
Too few Catholics even know this. Apparently, the folks at Notre Dame don’t know either. And, furthermore, what Dolan calls a religious teaching, is, strictly speaking, not a religious teaching, but a moral teaching, derived from reason not faith. So the HHS mandate is NOT an assault on Catholics’ “religious” freedom. Whose freedom are we talking about anyway? rbkaiser@justgoodcompany.com
Mr Kaiser,
Do you really think it is a good idea for the Obama administration, or any administration, to get down to the level of arguing Catholic theology, i.e, what is “received” teaching. That impresses me of being a little silly.
AA
I can understand the lawsuit against
KATHLEEN SEBELIUS, in her official capacity as Secretary of the U.S. Department of Health and Human Services;
Can someone explain why the lawsuit is also directed against
HILDA SOLIS, in her official capacity as Secretary of the U.S. Department of Labor, and TIMOTHY
GEITHNER, in his official capacity as Secretary of the U.S. Department of Treasury.
Robert Kaiser:– <>
“The folks,” whoever they are, certainly do know the debates about the magisterium and reception. This particular topic has been surrounded by such discussions since before the promulgation of Humanae Vitae, as you surely recall. There are theologians at Notre Dame who have been under constant attack from the self-appointed lay defenders of orthodoxy.
If you read the writings of Cathy Kaveny, here on her blog and elsewhere, you must have seen these topics running through her thought. Indeed, no one who believes the Holy Spirit to be at work in the world could ignore some version of this, regardless of their tradition or denomination.
However, your sharp division between faith and reason suggests that you have forgotten what you learned as a Jesuit and turned Lutheran. Notre Dame is the last bastion of Thomism and reason will not be denigrated there. If anything, it will be overrated [but only when within the Church].
Nominalism is the enemy, for some. Get thee behind me, Ockham. The fideism of Savonarola or Montaigne must be resisted.
“First, the USCCB ought to make it explicit that their decision to wage this political campaign is a prudential decision and is essentially subject to defensible challenge by other thoughtful people, Catholics and otherwise. To allow it to be regarded as a test of one’s devotion to his or her Catholic faith is to mislead.
Second, some of the rhetoric already used in support of this campaign has been defamatory. It is incumbent upon the USCCB or the relevant local bishop to rebuke these rhetorical excesses. The excesses cannot rightly be considered constructive.
As someone who thinks that the bishops’ campaign is misguided, I too have the duty to avoid defaming them, but it is not defamatory to insist upon these two points.”
Respectfully, shouldn’t this be said of those here (both bloggers & commenters) who have consistently attacked the bishops & those who agree with their reading of the many troubling actions taken by the Obama administration with respect to these issues? I mean have you read some of the stuff that’s been written in this comment thread alone?
And by the way, as a lawyer I can assure you pro bono means pro bono. Court costs are borne by the lawyers.
Paul Moses –
Right. Fr. Jenkins has already demonstrated his integrity when he persisted, against some bishops, in granting Obama an honorary degree.
What seems to be the problem for some people here is that Fr. Jenkins might actually *agree* with those bishops about a different issue and might again take an unpopular stand together with them..
He keeps going up in my estimation — he’s willing to take flak from both right and left. Just what a fine college president should be willing to do.
Why a dozen lawsuits instead of one lawsuit? Is it a calculation that a dozen different federal district courts can rule? Is this a get-it-to-the-Supreme-Court strategy?
Notre Dame (like every other employer) assumes the duties of a fiduciary when it administers a health care plan for its employees…Please, someone correct me if I am wrong, but I have yet to hear an argument made that Notre Dame is refusing to include contraceptives in its plan because that is what is best for its employees.
Jimmy Mac,
The quote you provided confuses the plan sponsors prerogatives and fiduciary duties. From the DOL website.
http://www.dol.gov/ebsa/publications/ghpfiduciaryresponsibilities.html
A number of decisions are not fiduciary actions but rather are business decisions made by the employer. For example, the decisions to establish a plan, to determine the benefit package, to include certain features in a plan, to amend a plan, and to terminate a plan are employer business decisions not governed by ERISA. When making these decisions, an employer is acting on behalf of its business, not the plan, and, therefore, is not a fiduciary. However, when an employer (or someone hired by the employer) takes steps to implement these decisions, that person is acting on behalf of the plan and, in carrying out these actions, may be a fiduciary.
Jeff Landry:
Re pro bono
According to the Michigan Catholic – a Publication of the Archdiocese of Detroit, Archbishop Vigneron stated that because the plaintiffs are nonprofit organizations, the law firm, Jones Day, is filing the suit on a pro bono basis – meaning the costs for individual dioceses, including the Archdiocese of Detroit, will be minimal and cover only administrative expenses such as in providing documents and communication.
It’s not clear to me why it’s important to know the names of the individuals who are making sacrificial donatons of their time, talents and treasure…excuse me, “bankrolling” this effort in support of our Church. Or did you want to thank them personally?
Before the suppression of Our Lady of Vilnius (OLV) parish in the Archdiocese of New York my involvement in Catholicism was primarily spiritual and secondarily social. The effort to preserve the parish began my sad education in the temporal aims and tactics of the archdiocese. During the hearing of The OLV case, Blaudziunas v. Egan, by the NYS Court of Appeals on 11/11/2011 Peter Johnson, Jr., stated that Canon Law was the heart and soul of NY State Religious Corporations Law as it pertains to Roman Catholicism. Because the Roman Catholic Church is hierarchical, Corporations Law upholds the absolute power of the Ordinary in the civil realm. This makes it very difficult for aggrieved plaintiffs to sue, let alone win. The day after the Court of Appeals ruled against Blaudziunas (OLV) Peter Johnson Jr. appeared on Fox News heralding the victory as a triumph for religious freedom, one of the earlier utterances of this slogan.
I am presenting this history to ask whether a win for the Catholic organizations suing in this instance would result in collateral benefit for the Church in future litigation. Might it armor the Church from plaintiff victory at the federal level to the extent that Religious Corporations Law protects it in New York state.
The US government is trying to mandate that church affiliated businesses, organizations and institutions – and all employers for that matter – pay for contraceptive and morning after pills, and for sterilizations.
First of all, bc pills are not expensive and unless a doctor prescribes them as a remedy for some special condition, they are not therapeutic; they are elective. And so most people would say that women who choose to use bc pills should be free to do so of course, but they should also pay for the pills themselves.
Second – and more importantly – paying for (providing) oral and other forms of contraceptives is an issue of conscience. As such, the government has no business forcing me or you or anyone else for that matter, to buy or pay for (provide) something I find morally objectionable – and then to penalize me if I choose not to pay for it.
Thirdly – We should not allow socialists in the government should to weedle themselves into a position where they can penalize us individually, for doing nothing. Under this law, an employer would be penalized for not buying something. That of course is not only nonsense, it is dangerous as well.
If we allow the government to force everyone to pay for contraceptives, what is to stop it – in twenty years perhaps – under another administration, what is to stop it from saying “Look, we all pay for the bc pills anyway, and some unwed gorls and young women still get pregnant, and so now we will ensure all teenaged girls and unmarried women take their bc pills every day, for economy, and for the ‘common good’ you see. . . .” ?
For the most part, bc pills and other contraceptive means are lifestyle choices.
It usually works best when people pay for their lifestyle choices themselves.
Ken
If people should pay for “lifestyle choices” themselves. you’d be ruling out a lot of medicine and prescriptions for dealing with mental health and addiction issues, results of smoking and drinking or cessation program,diabetes, etc.
The values or dangers in and of contraception can be argued many ways, but not from this point of view.
It is hard to tell whether ND is genuine in their stance for religious freedom or just joining some conservative Catholics as political mouthpieces for the GOP. I would like to believe the former, as the letter would wreck their whole argument and be really sad.
I guess the litmus test for Bishop Jenkins et al. is whether they have taken similar stands on points of conscience, like the Iraq War. I don’t know the answer. Does anyone else?
Have ND and Jenkins stood up loudly to the many un-Catholic acts of GOP presidents? Were they shouting in ’05 that deregulation was about to wreck the world economy and put millions out of work? Were they refusing to pay taxes that supported the Iraq War? Did they threaten to sue? If so, then they would have to be given credit for consistency, and the Catholic left should back off a bit. If not, well…follow the money.
My previous post abridged: I believe that the parishioners of Our Lady of Vilnius got a raw deal. The canonical appeal did not yield recourse or even an explanation, merely a reiteration of Cardinal Egan’s fiat. Civil law in New York state deemed the demolition of Our Lady of Vilnius an ecclesiastical matter immune to civil intervention under Religious Corporations Law because the hierarchical nature of the Roman Catholic Church invests the archbishop with absolute power in ecclesiastical matters.
Would a Church victory on this issue in a federal court further reduce opportunity for redress for those who believe that the church has wronged them?
Question: why only 13 out of nearly 200 dioceses signing on?
While I know neither the legal issues clearly or the politics of why some diocese and institutions (Our Sunday Visitor still throws me as well as nursing home), it’s just curious to learn how this was promoted and who decided for whom in the various dioceses– aand why the USCCB is not in the suit itself? There are some strange bedfellows here…as well as those who didn’t jump on this…
Waiting for the “fortnight”.. cheerio…
I thought this thread was about ND and its role in the case being filed in Federal Court in Indiana. And-
the enormous pressures on Fr. Jenkins who is under the gun in the complex problem of runing the University there.
I think he tried to show balance, but the perception of his and ND’s role will depend on how one views the mandate question in the first place.
It’s got to be hard as the recent issue of sexual assault and football raised there was tamped down.
My own view is that he is just doing what he has to.
The suit itself and the posture of the Cardinal Abp. of New York is another(political) kettle of fish.
Was wondering about MSW’s post this morning: http://ncronline.org/blogs/distinctly-catholic/lawsuits-tantrums
He echoes many comments above:
- give Fr. Jenkins credit; drill down and study the reasoning, etc.
Yet, am left with more confusion than clarity.
Again, it appears to be an issue about how the administration has defined religious organizations in terms of exemptions. Historically, any “catholic ” organization could presume that it was “exempt”. But, HHS is now redefining this expecially for some of the “more social” catholic groups. This appears to be Fr. Jenkin’s point about religious freedom.
MSW does a good job of showing that there is a tension from two sides – catholic groups whose mission would support the HHS aim to include bc, etc. in prevention care especially to those who rarely have access and then the other side that pushes back on any directive that “limits” how those organizations choose to fulfill this mission.
What is not clear to me are some of the points that Grant has clearly articulated above. Not sure that ND case argues this persuasively – it still feels like groups are saying – we are catholic and if you limit, you are restricting our religious freedom. Yet, case law has clearly shown that government has a role to define the common good even when it limits certain religious groups. ND case does not really clarify why ND should be able to limit employees’ religious freedom (health plans offering bc, etc.) – it doesn’t address this side of the question.
In the 21st century, religious social groups, educational groups (e.g. universities) need to figure out who and what they are (since their mission, employment practices, etc. are not as narrowly defined as a catholic diocese or local parish). The case does not seem to deal with the concept of the “common good” at all. As others have said, it also appears to have to appeal to the latest Congressional law (RFR) to support its case.
Others have referenced Tabor decision (a decision that was “very” narrow in scope and, IMO, played loose with the definition of “ministerial exemption” – teacher taught one religious course; ergo, she is a minister?) That case law would not help ND with thousands of employees because their job is not clearly “ministerial” per that narrow definition.
So, can anyone help me out? It still feels like the USCCB is asking to be treated “differently” because we are the catholic church. Really?
Let me see if I have this right because just thinking about it makes my head hurt:
Only because they have unlimited and unaccountable access to $billions, aging, all-male American Catholic hierarchs have filed suit in court to prevent women the free exercise of their constitutional rights to equal treatment under the law by attempting restricting women’s self-agency over their own bodies.
And, these are the self-same oligarchs who like to posture as defenders of Catholic “religious liberty” and who are complicit in the rape, sodomy and sexual exploitation of thousands of children and especially women.
How could we not conclude that today’s Catholic hierarchs are even more corrupt than those depicted in the current HBO drama series, The Borgias?
What must be done is very clear: Separate the MINISTRY from the MONEY. Reform the priesthood from parish to pope. Honor and value all human sexuality and gender.
LET THE PEOPLE DECIDE!
P.S. A disclaimer: ND president John Jenkins and I are NOT related. How could he have allowed ND to become ensnared into this ill-fated political gambit by US bishops to try to sabotage the re-election of President Obama?
un-Catholic acts of GOP presidents? Were they shouting in ‘05 that deregulation was about to wreck the world economy and put millions out of work?
Michael Casey – get your facts straight.
With the passage of the Gramm–Leach–Bliley Act in 1999, commercial banks, investment banks, securities firms, and insurance companies were allowed to consolidate. The legislation was signed into law by President Bill Clinton.
why the USCCB is not in the suit itself?
David, The USCCB employee population may be so heavily catholic that it is exempt. Some of the positions require ‘A practicing Catholic in good standing’ and others require knowledge of the church.
Conference [is] served by a staff of approximately 315 lay people, priests, deacons, and religious located at the Conference headquarters in Washington, DC
Bruce
Thanks for the info. I guess the question of exemption for institutions serving primarily co-religionists is somehow part of this, but I still wonder. Maybe I’m more Macchiavellian about it, but this wouldn’t be the cse, I’d guess, for the dioceses, which probably have very differnt mixes of who’s an employee….well, I imagine someone gets all the data on the this!
Meanwhile, Professoe Cafardi’s article is excellent for those who can access it!
Bill deHaas, yesterday I read the California Supreme Court decision in the 2004 case in which Catholic Charities of Sacramento argued that the same definition of a “religious organization” used in a state law was unconstitutional and that they should be exempt from providing FDA-approved contraceptives as part of any prescription drug plan they provided to employees.
I was interested in how similar the arguments presented in that case were to those now being presented.
The California Supreme Court held that the requirement was not unconstitutional and Catholic
Charities was not exempt. The US. Court refused to hear an appeal of this and a similar case in New York.
The only obvious differences I saw between this 2004 case and the current ones are 1) there might be differences in what “FDA approved contraceptives” included in 2004 vs now (i didn’t see any reference to “abortifacient” drugs; also, I didn’t see any mention of sterilization) and 2) CC could have avoided the requirement by not including overage of any prescription drugs in its health plan.
The US Supreme Court’s refusal to hear an appeal in 2004 isn’t a guarantee of how they would rule on a similar case now, but it does suggest that the bishop’s argument that the requirement is unconstitutional isn’t self-evident.
If the US Supreme Court rules that the HHS requirement doesn’t violate the constitution, it then has to consider whether it meets the tests imposed by a federal law (RFRA) which applies only to actions of the federal government and didn’t apply in the California case. I haven’t found anyone who claims to be able to predict how the SC will rule on that.
The California case opinion is here:
http://caselaw.lp.findlaw.com/data2/californiastatecases/s099822.pdf
Possible reason the USCCB is not among the plaintiffs: perhaps there are many bishops who think that the suit is ill-advised and want nothing to do with it? In other words, it’s a matter of internal politics.
How to define the ministry of a religious group: It seems to me that it has to be defined by the *end/goal* of the ministry. That is, does the project further the religious aims of the sponsoring religious group? The number of people employed in the project is irrelevant. They are means to the end, not the end itself. For instance, a religious hospital has as its goal to give charitable aid to suffering people. That it has 40 atheist doctors helping to deliver the aid is irrelevant to what the ministry of the institution is.
“Question: why only 13 out of nearly 200 dioceses signing on?”
I’ll bet that many of the silent 187 are helping to fund this travesty, though.
Let’s keep in mind, though, that the revised mandate does not require the employer to pay for contraceptives. Insurers are to contact women separately. No employer cash subsidizes anything. If anything, employers will save money–any employers feeling “complicit” because of this savings are welcome to pay the difference to some worthy organization, or perhaps use it to provide day care for employees’ kids.
To say “well, they only have access to contraceptive coverage because they’re employees” would seem to argue also against paying people salaries at all. After all, who knows what morally dubious things employees of UND or Steubenville or the various dioceses do with their pay?
Since it seems vanishingly unlikely that dioceses would be subject to the mandate, and Steubenville would be grandfathered out from the mandate due to their previous self-insurance plan, really the only player here is Notre Dame, istm. And once the other suits are thrown out, there they’ll be, Notre Dame standing proudly alone against contraception.
Jimmy Mac
Of course, the other dioceses are funding this. At their meeting last fall the U.S. bishops overwhelmingly approved a 3% increase of diocesan funds to the USCCB to support the work of the newly formed Ad Hoc Committee for Religious Liberty, which in my humble opinion, is coordinating the whole thing.
@Jim P. I agree with you that the GOP likely doesn’t want to associate itself any more with what looks increasingly like a war on women. The suit harasses the Obama administration, but I doubt we’ll hear the same enthusiastic sign-on from the GOP as earlier.
I think it’s like those groups that launch egregious attack ads against a candidate for office. The candidate may not want his/her name on the attack ad, but won’t denounce it either, unless it’s especially awful. Here, the GOP wins, without having its own name attached to the anti-contraception cause. They’re not trying to criminalize contraception, (that’d be egregious,) just not include it as health care. If they succeed in broadening their desired exemption to include every Taco Bell, they’d destroy the ACA, accomplishing a big Republican goal.
“Since it seems vanishingly unlikely that dioceses would be subject to the mandate, and Steubenville would be grandfathered out from the mandate due to their previous self-insurance plan, really the only player here is Notre Dame, istm. And once the other suits are thrown out, there they’ll be, Notre Dame standing proudly alone against contraception.”
I am baffled by this kind of certainty. Here is a breakdown of the 12 lawsuits and the plaintiff parties: https://viewer.zoho.com/docs/wYdSbf. Besides the dioceses and universities, the other parties consist of high schools and grade schools; Catholic Charities organizations; community services organizations; a center for the deaf; a cemeteries group; a health care services group consisting of hospitals, nursing homes, a community health center and a hospice; a publication and several other entities.
These many entities are differently organized, have different purposes, have different employee groups. It is not at all clear how the regulation language will be applied in these different circumstances. Lawsuits test application of statutes and regulations all the time for the reason that the result cannot be known ahead of time, as well as to challenge the statute or rule itself when the application might seem to be vanishingly clear.
Wall Street Journal has an editorial and an opinion piece on this today.
Mary Ann Glendon says it’s a plot to shut own Catholic social services so big government can control everything.
The editorial, supported by a video from Paul Gigot, complains that liberals are trying I intimidate Chief Justice Roberts. It urges him to stand firm:
Here’s an excellent analysis of what’s at stake by Scott Richert: http://catholicism.about.com/b/2012/05/22/the-contraception-mandate-the-church-fights-back.htm
@James E. That’s a good point, and an important role for such suits, but surely such a suit is better brought after the actual law is in place? This kind of (lawyers please correct me!) facial challenge can really only undermine the basis of the law itself, not the specifics of its application.
And as I brought up way at the beginning of this brouhaha, one of the problems with challenging the contraceptive mandate in the first place is this: contraceptive care is regarded as part of standard women’s health care by medical authorities, based on medical grounds, not religious grounds. When Catholics demand an exception on religious grounds for OUR doctrine, either, logically, we’d need to go to bat for others’s religious exemptions, based purely on their religious, not medical grounds. JW’s, Scientologists, etc., OR we compel the government to determine what religious claims are to be respected, and which are not. Better to make medical decisions on medical grounds, especially since no Catholic is being compelled to do, or pay for, anything to which they object. But that ship has sailed–this suit makes sure of that.
the mind of the beholdeer!!! Always hard to argue with a harvard professor, but that seems far fetched to me! Let’s go back and attack the Social Security Act!!!
I didn’t know Thomas More — aznd rfevisionist history makes me wonder if he’d nbe a friend of mine — but Justice Roberts, you’re no Thomas More.
I didn’t even ralikze the coaltion was that diverse! This cannot be random! How these suits from these entities are organized will make a great story some day…
James Englert @1:25 pm says, “I am baffled by this kind of certainty” — the kind of supposed certainty as expressed in the passage he quoted from Lisa Fullam.
But Lisa Fullam is clearly speculating about the various lawsuits — and she indicates the reasons for her speculations.
Does Glendon really err in her very first sentence? “forcing them to …fund services…” No employer is being asked to fund contraceptive coverage.
The suit harasses the Obama administration, but I doubt we’ll hear the same enthusiastic sign-on from the GOP as earlier.
———–
It wasn’t only the GOP who RUSHed to the barricades. It was liberals, as well: E. J. Dionne, Mark Shields, Chris Matthews, the editors of Commonweal, et al.
(And some of them make wishful claims about how many/most Catholics were united in the fight.)
Emplyoyers who self-insure are being required to fund contraception. And all other employers will be funding contraception through what they pay insurers, who will simply pass along the costs of covering contraception to them. Contrary to what some believe, just because the government says something is “free” doesn’t make it so. Government mandates cannot override the laws of physics, or the laws of economics.
Good point, Lisa.
Perhaps Glendon meant something like “forcing them to facilitate [the funding of] services that violate their beliefs.”
Good point, Gerelyn.
The editors of COMMONWEAL, among others, jumped on the bandwagon earlier, as you say.
No employer is being asked to fund contraceptive coverage.
Lisa,
I beg to differ. Just because HHS writes a bunch of rules does not mean the money isn’t coming from the employer. More importantly, I don’t think the morality of the issue is tied to money. Without the employer policy, the mandate is moot; with the policy, the mandate is effective. I think thats the cooperation part of the moral equation.
Lisa,
HHS has not issued a revised mandate and is only delaying implimentation of the mandate that was issued in January. The lawsuit is being filed against the mandate as it currently exists, not the supposed accommodation that has not been enacted yet. The delayed enforcement does not mean the law as it currently exists is moot. This is technically not a “facial challenge” to the mandate, since the lawsuits are not claiming the mandate is unconstitutional as applied to everyone, but rather it is unconstitutional as applied to the particular plaintiffs in the case. Also, as Thorin rightly poined out, self-funded plans are unable to shift costs to the insurance company as contemplated in the supposed accommodation, so Glendon is right that employers will required to fund contraception, sterilization and abortifacient coverage against their religious beliefs.
“The suit harasses the Obama administration, but I doubt we’ll hear the same enthusiastic sign-on from the GOP as earlier.”
Harasses??? It was the Obama Administration that picked the fight by changing settled law. On top of a string of actions deeply concerning: Hosanna-Tabor (a fight that – it bears repeating – they LOST 9-0 on an interpretation of the First Amendment that its own former solicitor general characterized as “astonishing” during oral argument), DC School funding, etc. Yet we’re supposed to just take the Administration at its word that it has it right, and if you dare disagree (or is it “harass”?), you’re just a naked partisan wanting to prevent Pres. Obama’s re-election?
Lisa,
The timing is extremely interesting. Fr Dailey spoke to some of the conerns earlier. I have not had the time to consider it. But the lawsuits do specifically address why they are being brought now rather than later. The paragraphs excerpted below are allegations from the suit filed by the Ft Wayne Diocese and others.
(The other lawsuits make similar arguments, for example paragraphs 185-191 in the Compalint filed by the Archdioces of New York and others: http://www.archny.org/media/links/FreedomofReligion_Lawsuit2012.pdf)
Ft Wayne suit http://www.osv.com/Portals/0/pdf/FW-SBFiling.pdf.
199. The U.S. Government Mandate is already causing serious, ongoing hardship to
Plaintiffs that merits judicial review now.
200. Moreover, the uncertainty surrounding the implementation of the U.S.
Government Mandate has actually increased the harms Plaintiffs are incurring. With the
regulatory landscape so unsettled, it is impossible for Plaintiffs to develop their future health plans.
201. Health plans do not take shape overnight. Many analyses, negotiations, and
decisions must occur before Plaintiffs can implement health plans for their employees.
202. Under normal circumstances, Plaintiffs must begin the process of determining
their health care packages around one year before the plan years begin. The multiple levels of uncertainty swirling around the U.S. Government Mandate and the ANPRM make the alreadylengthy process of preparing a health benefits package even more complex.
203. For example, the planning process for Franciscan’s health plan—including
analysis, consultation, and negotiations—begins in early Spring and all decisions must then bemade by May for the following plan year. Implementing even basic changes to Plaintiffs’ health plans requires substantial lead time.
204. The U.S. Government Mandate, however, may require Plaintiffs to make
significant, and likely revolutionary, changes to its employee health coverage. Plaintiffs,
moreover, may need to restructure their programs or health plans to fit within the U.S.
Government Mandate’s requirements. Such changes will require substantially more lead time.
205. Even assuming Plaintiffs are entitled to the benefit of the safe harbor, they must
be prepared to implement modified health coverage as early as October 2013 for Our Sunday Visitor and January 2014 for the other Plaintiffs.
206. By the time that any new rule is finalized, if ever, it will be too late for Plaintiffs
to bring their health plans into compliance with the law.
207. In addition, if Plaintiffs do not comply with the U.S. Government Mandate, they
may be subject to huge annual government fines and penalties. The uncertainty of the U.S.
Government Mandate’s applications and penalties may cause other budgeted expenses to go unfunded.
208. The U.S. Government Mandate thus imposes a present and ongoing hardship on Plaintiffs.
Mr. Landry,
Of course it’s all about partisan politics. If a Republican president had required employers to provide insurance governing contraceptives, including contraceptives that act as abortifacients, the bishops would not have protested. Nor would anyone have been upset if a Republican Secretary of Health and Human Services, with a track record of supporting abortion as a governor and declaring that “we are in a war” with those opposed to abortion, was honored at a Catholic university. It’s only because Obama and Sebelius are Democrats that the bishops care about these things. It couldn’t possibly be because the bishops actually believe what the Catholic Church teaches.
The Catholic bishops actually believe the ridiculous teachings of the Roman Catholic Church regarding sexual morality, and the bishops are too stubborn to change those ridiculous teachings.
So once again, the American Catholic bishops are leading a big protest that will benefit the Republican party because this protest is directed against the Obama administration.
Mary Ann Glendon states in the WSJ today that “The main goal of the mandate is not, as HHS claimed, to protect women’s health. It is rather a move to conscript religious organizations into a political agenda…”
Her by-line in the WSJ article says that she is a professor at Harvard Law School. She is also an appointee to the Vatican by George W. Bush, one of ten consultants to the USCCB Ad Hoc Committee for Religious Liberty and a Romney backer who has done radio spots promoting him during the Republican primary in Florida.
So, one may ask with some legitimacy: “What is HER agenda?”
Helen: Glendon’s agenda is to conscript conservative Americans into a political agenda that just happens to oppose the Obama administration in an election year when President Obama is running for re-election. I know, I know, like the Catholic bishops, she actually believes the ridiculous teachings of the Roman Catholic Church regarding sexual morality.
Glendon was a major supporter of Maciel, US ambassador to the Holy See, teaching at his university in Rome, rejecting allegations against him, cheering to the end.
So much for her insights, speaking of all the fruit Maciel bore.
As an acdemically based, politically appointed, and religiously based heavyweight for the Republicans , she can be effective with some Cathoillics. Not that she isn’t entitled to be both and I know there are Democrats like that as well. Yet somehow she seems moe personally antagonistic to Obama and Democrats in general.
From the WSJ editorial: ” it doesn’t fit [liberals'] current political narrative that Chief Justice Roberts is Roger Taney with a better haircut.”
I have tremendous respect for Chief Justice Roberts, but I quibble with the Journal’s exalted opinion of the Chief’s coif; after all, you can take a the man out of Indiana, but can you really take the Hoosier out of his hair? I for one am not about to let the daily journal of the 1% arbite good hair for the rest of us.
Who has the better hair? You decide!
http://upload.wikimedia.org/wikipedia/commons/thumb/4/43/Official_roberts_CJ.jpg/220px-Official_roberts_CJ.jpg
http://t0.gstatic.com/images?q=tbn:ANd9GcS82X2jHxYfvcof_yYwcVnInjK1irjddu5Xl8g33yB2VVuS5zld1g
Thomas Farrell:
I don not doubt the sincerity of her Catholic faith. She has made strong pro-life and pro-family statements. I have no idea where she stands on other Catholic Social Teachings Perhaps, my question would be:
Is she a Catholic REPUBLICAN or a Republican CATHOLIC?
Jim Pauwels;
I don’t care about a man’s haircut just so long as he doesn’t pay $400 for a cut and styling.
The claim that the contraception mandate, which will not be enforced until August 2013, is already harming claimants, is tendentious at best. Think about what’s at issue here: an employee health plan. It is not difficult for a large institution to have its benefits people put together two packages: one with contraception coverage and one without. “Plaintiffs must begin the process of determining their health care packages around one year before the plan years begin,” claims one of the complaints. They could begin the process, but they could wait too. It does not take very long to suss out these things. People keep saying “but look at the legal complaints” — as though they ought to be taken at face value. These are written by interested parties seeking an outcome that’s beneficial to their clients. That is their commitment. Colleges and universities usually plan these things between May and August — after school’s out. All they need to do is run two sets of numbers. It’s not an impossible task — especially not for August 2013, fifteen months from now. As for Steubenville: they need to do nothing. Their employee health plan is grandfathered. The ACA allows a good deal of leeway for grandfathered plans to adjust benefits, provided they don’t dramatically cut benefits or increase employee costs.
“Is she a Catholic REPUBLICAN or a Republican CATHOLIC?”
This is perhaps the biggest howler ever from Commonweal. Boy, do you guys slenderly know yourselves. I suppose, once upon a time, you could ask the question of the Commonweal crowd, “Are they Catholic DEMOCRAT or Democrat Catholic?” Today, the question is,”Do these people ever experience the joy and peace of the Lord?” Where is the fruit of the Holy Spirit in your incessant fault finding and contentiousness, in your very carnal partisanship?”
Frank Gibbons:
Of course, who said that the question could not have been asked of those who are Catholic and Democrat?
”Do these people ever experience the joy and peace of the Lord?”
Please direct your question also to the USCCB, some of whom have hardly modeled such fruits of the spirit.
Here is a salient fact which argues for sooner rather than later from George Weigel
Even those entities to which the administration extends this “safe harbor,” however, remain vulnerable to private action to enforce the mandate (affording Ms. Sandra Fluke her second 15 minutes of fame?). Thus it would seem important that one part of the litigation strategy be the pursuit of a preliminary injunction that would prevent the mandate from going into effect this August.
Why Notre Dame chose to join the bishops in this effort has to be further addressed. This is really a turnabout for President Jenkins and the writing on the wall suggests that there might have been some pressure for him to make this move. The significance of Notre Dame as one of the suitors cannot be lost on anyone and it is might well be that considerable pressure was brought on him by the bishops and members of his community. Particularly Bill Dailey. Of course, Bill Dailey would say we have not met the burden of proof. Time will tell.
“Why Notre Dame chose to join the bishops in this effort has to be further addressed. This is really a turnabout for President Jenkins and the writing on the wall suggests that there might have been some pressure for him to make this move.”
Maybe he’s come to a rational conclusion on his own? Just a thought. Don’t understand the need for some conspiracy theory. In any event, during the Obama kerfluffle, he didn’t strike me as someone easily amendable to “pressure.”
Someone better get Doug Kmiec back in line, quick: “Notre Dame’s swing at Obama is, unfortunately, deserved”
http://ncronline.org/news/politics/notre-dames-swing-obama-unfortunately-deserved
Jim Jenkins: “. . . Only because they have unlimited and unaccountable access to $billions, aging, all-male American Catholic hierarchs have filed suit in court to prevent women the free exercise of their constitutional rights to equal treatment under the law by attempting restricting women’s self-agency over their own bodies. . . “
Ouch – no wonder your head hurts! Nobody is preventing women the free exercise of their rights to medical treatment or self-agency. The bishops are simply pointing out how wrong it is to force everyone to pay for the non-therapeutic use of bc pills, elective sterilization surgery, and abortifacient drugs, all things to which many American moral object.
If women want to use bc pills, they can pay for them.
Hope this helps your headache!
:-)
Bill M “Why Notre Dame chose to join the bishops in this effort has to be further addressed . . .”
Indeed – How dare that Father Jenkins “side with” those big bad Roman Catholic bishops – just because ND is Cactholic university – jeez!
I wonder how Theodore Hesburgh, arguably the greatest American Catholic in our history, views this different slant that ND is taking. It is a particular irony that the organizer of the historic Land of Lakes Agreement which is why Catholic colleges are not inferior today, views the fact the Notre Dame is among the first to bend to the bishops. Hopefully, this direction on the part of the leadership at ND is temporary and that the spirit of Hesburgh will prevail. In his time Hesburgh had merely to call the pope when a power mad bishop got on him and that was that.
Speaking of Fr. Hesburgh, he is still active. He appears to have tried to cheer up Fr. Doyle who has been reassigned by President Jenkins
Surely only those on the inside can truly speak about the pressures on Fr, Jenkins with objectivity of sorts.
On another thread today, there”s Cardina;l Dolan talking about how Catholic Universities must be in union with their Bishop (referring to Georgetown/Sibelius).
During the defense presentation in Philly, a priest friend of Lynn testifies (to minimize Lynn’s guilt of course) “you can’t say no to a Cardinal”
At the Association of Irish Priest convocation, one speaker says we need to be careful not to exclude consevative voices, as they too are real Catholics.
I don’t recall conservatives speaking out for liberal voices being heard.
We only want to see things through our univocal frame apart from any of (as Ann might note) the many complexities and frames to approach difficult and divisive issues.
Poor Fr. Jenkins (and IMO, or ND.)
Michael Gerson weighs in on the political meaning. Headline: “Catholics Won’t Go Quietly”
http://www.washingtonpost.com/opinions/obama-alienates-electorally-important-catholic-voters/2012/05/21/gIQASnaYgU_story.html
Bruce-
“Michael Casey – get your facts straight.
With the passage of the Gramm–Leach–Bliley Act in 1999, commercial banks, investment banks, securities firms, and insurance companies were allowed to consolidate. The legislation was signed into law by President Bill Clinton.”
I know Clinton signed this irresponsible act in ’99. He should have been impeached for doing it (as opposed to the nonsense they tried to impeach him for). My point was that by ’05 or so the immoral actions that were encouraged and legalized by the G-L-B Act were in full motion, coming at the world economy like a giant meteorite, while the president was urging an “ownership society” and pressing people to buy into the stock market. He even (I think in ’04) pushed to put Social Security into the market. This would have destroyed the lives of millions while making Wall St rich beyond measure. It was these actions that I thought called for the full vocal ire of the bishops.
You’re right about Clinton, though. He was cozy with Summers, Paulson, Geithner, Rubin…all the major criminals that wrecked the place. Bush encouraged this cruel greed, but Clinton really got the ball rolling. The bishops should have been howling in ’99 as well.
Why mass avarice and economic terrorism don’t get the attention of women’s sex lives I’ll never know.
[...] picking fights with President Barack Obama, has had enough. The headlines this week were about lawsuits brought by forty-three Catholic organizations, including thirteen dioceses, to overturn regulations issued by the administration requiring [...]