The Catholic University of America


Experts Doubt Government Can Defend Objectionable Insurance Mandates


It’s in the courts now and the stakes are sky high, at least from the point of view of religious institutions.  What happens next? 

Experts prognosticated on the legal forecast and analyzed the constitutional, policy, and media issues involved in the eighty-plaintiff lawsuits filed against the Department of Health and Human Services on first amendment grounds, alleging infringement of religious freedom.
The Columbus School of Law’s 2012 Brendan F. Brown Lecture “Constitutional Challenges: Religious Liberty and the HHS Mandate,” assembled a panel of three experts on Oct. 3 to discuss the merits of the case, possible outcomes, and the media’s presentation of the issues involved.
At the center of the court battle is the Patient Protection and Affordable Care Act of 2010, which mandates that employer-sponsored insurance plans cover most methods of contraception, sterilization procedures, and counseling for all women with reproductive capacity.
Many religious institutions voiced moral objections to the dictates, but the religious exemption from it is narrow and excludes hospitals, colleges, and other groups.
CUA law Professor Mark Rienzi, who is among the litigators in the case as senior counsel for the Becket Fund for Religious Liberty, said the administration has a high bar to meet in convincing courts that is has a compelling interest in forcing religiously-affiliated institutions to offer insurance coverage of procedures they find objectionable.
“Everyone who wants them has access to the [abortifacient] and contraceptive drugs anyway,” noted Rienzi. “So what is the government’s compelling interest?” 
The administration announced an accommodation in the spring, suggesting a compromise that would allow insurance plans to offer such drugs, but not linked directly to the employer. While some Catholic organizations may be satisfied with the change, said Rienzi, for many others it does not provide enough distance from a morally unacceptable act. In addition, there has been no official notice of a proposed rule to that effect.
“It’s not the law. It’s a statement and a press conference so far,” he said.
Media coverage has in general not been particularly sympathetic to the religious plaintiffs. Emily Hardman, communications director for the Becket Fund for Religious Liberty, said she is often asked if the media is biased, lazy, or just can’t grasp the issues involved.
None of the above, she said. Rather, the press’s overwhelming interest is in telling a gripping story.
“For the media, a good story needs a victim, a villain, and a vindicator,” explained Hardman. When Democrats brought out law student Sandra Fluke to testify before Congress about the dangers of health plans that didn’t include contraceptive coverage, “she told phenomenally compelling stories,” Hardman said.  
Will the court struggle over the insurance provisions of “Obamacare” drag out to the bitter end?
Professor Stephen Schneck, director, Institute for Policy Research and Catholic Studies and associate professor of politics, The Catholic University of America, said “there is still a chance the administration may be willing to revisit the exemptions for non-profits organizations,” but only after the presidential election, and even then, it would depend upon other political factors.  
The panel discussion was conceived and organized by Professor A.G. Harmon and moderated by Professor Mary Leary, both faculty members with the Columbus School of Law.