Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, May 21, 2012

Notre Dame (and others) file federal-court lawsuit challenging HHS mandate

Here is a link to the complaint filed this morning by the University of Notre Dame, challenging the Administration's "preventive services" mandate.  Here is an excerpt from the announcement by Fr. Jenkins, the University's president, to the Faculty and Staff:

. . . Let me say very clearly what this lawsuit is not about:  it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services.  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.  And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.  We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so. 

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives.  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.  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. . . . 

Here is the statement of John Garvey, the President of Catholic University.

In my view, these lawsuits -- which are the result of the Administration's overreach, and not of any effort by religious institutions or leaders to "pick a fight" -- are efforts to vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism.

These latest lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate.  This mandate imposes a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission.  It purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity.  In a society that respects and values diversity, as our does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good. 

These lawsuits are not asking the courts to endorse the plaintiffs’ religious views, only to respect and accommodate them.  Religious institutions are not seeking to control what their employees buy, use, or do in private; they are trying to avoid being conscripted by the government into acting in a way that would be inconsistent with their character, mission, and values.  In a pluralistic society, people will often disagree about values and policies, and it will not always be possible to accommodate those who object in good faith to regulatory requirements.  At the same time, a society like ours – with a Constitution and federal religious-freedom protections like ours – will regard it as often both wise and just to accommodate religious believers and institutions by exempting them from requirements that would force them to compromise their integrity. This is such a case.  We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law.  True, there will sometimes be tension and conflict, and trade-offs and compromises.  Given our deep-rooted commitment to religious freedom, though, our goal as a community should always be to strike the balance in a way that honors that commitment.

https://mirrorofjustice.blogs.com/mirrorofjustice/2012/05/notre-dame-and-others-file-federal-court-lawsuit-challenging-hhs-mandate.html

Garnett, Rick | Permalink

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Go Fighting Irish!

Posted by: Catholic Law Student | May 21, 2012 11:49:14 AM

This is one of the best descriptions of this matter that I have seen...unfortunately, the far left won't even read it...so frustrating that to them their view has to be right...no compromise or consideration of discussion.

Posted by: Sandra Cash | May 21, 2012 11:53:50 AM

I did not realize Notre Dame was still a catholic university, I thought they gave up that status a long time ago.

Posted by: Eric | May 21, 2012 12:02:52 PM

Better late than never. Welcome aboard, Notre Dame.

Posted by: enness | May 21, 2012 12:09:28 PM

Good for ND. However, I wonder what ND and practitioners of Catholic Legal education think about Mark Cuban's recent comments about the impending collapse of our national educational bubble:

"You would think traditional university educators would take notice. Beyond allowing some of their classes to be offered online, they haven’t. They won’t. Its the ultimate Innovators Dilemma. They don’t believe they should change and they won’t. Until its too late. Just as CEOs push for that one more penny per share in EPS, University Presidents care about nothing but getting their endowments and revenues up. If it means saddling an entire generation with obscene amounts of school debt, they could care less. This is how they get their long term contracts and raises.

"It’s just a matter o time until we see the same meltdown in traditional college education."

Tolle lege: http://blogmaverick.com/2012/05/13/the-coming-meltdown-in-college-education-why-the-economy-wont-get-better-any-time-soon/

Posted by: CK | May 21, 2012 12:13:28 PM

Eric, Notre Dame is very much a Catholic university, and it's unfortunate that the contrary view has so much traction among some Catholics. It is an engaged, distinctive, great Catholic research university. No place is perfect, of course, but Catholics should, in my view, support Notre Dame (and not just because Notre Dame pays me!)

Posted by: Rick Garnett | May 21, 2012 12:14:47 PM

Speaking of the fighting Irish, I am reminded of St.Patrick's Breastplate Prayer, and the fact that, at the end of the Day, a well-formed conscience is one that is formed to Christ:

http://prayerfoundation.org/st_patricks_breastplate_prayer.htm

Thank you, Professor Garnett, and all those who blog here who are not afraid to mirror justice, and defend our Faith.

Posted by: N.D. | May 21, 2012 12:25:16 PM

Hi Ms. Cash,

Just letting you know that at least one member of the Catholic Left has read this and actually agrees with it (sorry to burst your bubble).

Professor Garnett, I hate to burden your Monday with a really stupid question but here goes. The Religious Freedom Restoration Act was passed in the wake of Employment Division Vs. Smith but was struck down by SCOTUS as being an overreach by Congress into the affairs of States, correct? Am I to assume that it can still be referenced in federal matters, as is being done here by ND and in reference to the ACA being a federal act?

Posted by: Edward Dougherty | May 21, 2012 12:31:57 PM

"In my view, these lawsuits -- which are the result of the Administration's overreach, and not of any effort by religious institutions or leaders to "pick a fight" -- are efforts to vindicate the country’s constitutional and traditional commitments to religious freedom and pluralism."

"Overreach"? The Administration made a real effort to reach a compromise, one that got support from many Catholics (who few in various cases would confuse with the "far left"), and religious institutions have extra time (a year, isn't it?) to handle the matter. The religious institutions very well "picked a fight" here. Some fights are worth the battle, including if they are necessary for the "commitments" you speak of, but at least admit, sorry, that one was actually made!

The "Constitution" is not being violated here under current law. This already was seen in a lawsuit in NY. The compromise very well DOES "accommodate" ... duly noted that it didn't go far enough for some people. The statutory claim has been addressed in the past.

This post has a Janus feel to it, both combative and claiming that only one side is being combative. I don't think you are correct on the merits but the post goes off the rails even beyond that.

Posted by: Joe | May 21, 2012 12:41:10 PM

Joe, the fact that the employers have a year to comply is hardly a compromise; it just means that, in a year, they'll have to start complying with a mandate that, they believe, is illegal. And, if you actually read the complaint, and Fr. Jenkins' statment, you'll see that the lawsuits are challenging the original mandate, which is the law *now*. This is not a challenge to any future accommodations that might be extended.

Read the complaint, to understand why this case is different from the N.Y. case. And, the statutory claim is very strong: There is a burden, and this is not close to being closely tailored to advancing the government's interest.

Posted by: Rick Garnett | May 21, 2012 12:51:13 PM

Ed, you make a good point responding to Ms. Cash. Remember, the mandate that is being challenged is the SAME ONE that united Catholics across the political spectrum. This case is not about the content of any future accommodations, but about the law as it now stands. On your RFRA question: The Act still governns and contrains *federal* action. Because this is a federal mandate, it is subject to the RFRA, notwithstanding the Boerne case which you mention. So, you are exactly right!

Posted by: Rick Garnett | May 21, 2012 1:03:31 PM

DUCK!

Posted by: Josh | May 21, 2012 1:11:26 PM

If a plan covers birth control (or whatever you want to call it) then a woman can still choose whether or not to use the pill. Is the difference between this scenario and the way it was before (i.e. a woman using money from her paycheck from ND to buy birth control) really worth all this fuss? Now, the cost savings that will accrue to insurance companies as a result of forgone birth control can be used to bring down the health care costs for everyone else. As someone who is not uncomfortable with the mandate, I thought to myself, at least this will present us with an opportunity for laypeople and clergy to better understand each other on this issue. No one even tried (which actually undermines the credibility of the hierarchy's position in my view). Who needs pastors when we have such good lawyers?

Posted by: Michael | May 21, 2012 1:15:01 PM

Congress shall make no law respecting an establishment of religion, OR PROHIBIT the FREE EXERCISE THEREOF; amendment 10 says, ...any power not granted to the congress by this constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. (if it's prohibited to the congress, it's prohibited to the states & the people.that includes the supreme court!)

Posted by: Gerald Donahue | May 21, 2012 1:15:13 PM

It is the students who are making a difference at Notre Dame. Many are very committed Catholics who have the Holy Spirit and the Spirit's gift of wisdom. The adminstration and faculty in general are no longer Catholic. They have allowed the evil one to sift them like wheat. Any conscience that embraces contraception, abortion, sterilization is a conscience that is faulty. Next year Jenkins will probably give the President another award. A little too late.

Posted by: matt | May 21, 2012 1:43:37 PM

Apropos of your post last week re: the Bishops' religious liberty arguments, Grant Gallicho over at dotCommonweal can't understand what all the fuss is about. After all, Pres. Obama TOLD us it was a compromise! And apparently it's a really big deal to him that the mandate doesn't go into effect for another year, so you should be able to figure out a convenient way to violate your own conscience for the sake of free contraception!

Mind-boggling.

Posted by: Josh | May 21, 2012 1:47:10 PM

Matt, I'm afraid this is just not true. There are many, many faculty who are committed to the University's Catholic character and mission, and who are top-flight scholars. In recent years, the high-profile hires have tended to be just such people. The direction is good.

Posted by: Rick Garnett | May 21, 2012 1:49:51 PM

"Joe, the fact that the employers have a year to comply is hardly a compromise; it just means that, in a year, they'll have to start complying with a mandate that, they believe, is illegal."

Prof. Garnett, that wasn't "the" compromise; it was merely an aspect of it.

It also is PART of a compromise when you give the other side a year. In that year, e.g., if their case is so strong, perhaps the legislature can pass something to override the policy. Also, it gives one side more time to find alternatives, deal with new rules or convince the feds that something else needs to be tweaked.

"And, if you actually read the complaint, and Fr. Jenkins' statement, you'll see that the lawsuits are challenging the original mandate, which is the law *now*. This is not a challenge to any future accommodations that might be extended."

So, if I "actually" read something, I suddenly will see the errors of my ways? Again, your tone is unduly combative. Also, I'm not sure why your "clarification" changes the basics of my comments.

"Read the complaint, to understand why this case is different from the N.Y. case."

I know it isn't the same. But, as I said, if we want to talk about what the federal Constitution requires, that case is quite useful.

"And, the statutory claim is very strong: There is a burden, and this is not close to being closely tailored to advancing the government's interest."

I realize that is the debate. This subject, e.g., was gone over in detail over at Volokh Conspiracy with lots and lots of comments discussing the reach of the law the government's interest. Suffice to say, the burden is not in violation of the law and it is closely tailored to advancing the government's interest.

Posted by: Joe | May 21, 2012 2:07:33 PM

Joe, I did not mean for "actually" to sound combative. Sorry. I just meant that I think the Complaint explains, in greater detail than I can do now, why the February announcement of a possible change to the mandate provides a reason for the plaintiffs not to challenge, now, the one that is operative. We disagree about your last ("Suffice it to say . . .") sentence, both with respect to whether there is a burden and whether it is well tailored. But, that's what the case is about, I guess!

Posted by: Rick Garnett | May 21, 2012 2:10:07 PM

Hi Michael,

As a Catholic and in my own thoughts, I would agree with you regarding all of the fuss over birth control. I dont agree with our church's teaching and I think the hierarchy wasted a lot of its credibility with the laity over reinforcing it in the 1960s. It has killed me during this debate as to how fighting the mandate has much more evangelical support than it does Catholic support. And I do also agree with you that both sides could do a better job of understanding each other on this issue although I think I do understand the teaching-I just disagree with it.

Having said that, I do think the mandate was a clear intrusion into the beliefs of religious instituions and I understand the fight on their behalf, although I didn't agree with the USCCB trying to take the whole loaf with extending it to secular employees. No matter what happens, the Church will continue the teaching and the laity, in large numbers, will likely continue to go about their merry ways, for both good and bad. Thus, the state of our church today.

And you're right in that it is certainly keeping the lawyers paid (not that there's anything wrong with that, Professor Garnett!).


Posted by: Edward Dougherty | May 21, 2012 3:07:02 PM

Michael,

I forgot to mention one more thing. Fighting the mandate has a lot more sympathy from me when it comes to objecting to providing coverage for the abortificants, rather than the contraceptives. And I'm going on the good faith of the USCCB that some of these items are abortificants (I'm not smart enough to know if they really are or not). But I can understand the postion of our schools and hospitals on this point.

Posted by: Edward Dougherty | May 21, 2012 3:11:59 PM

Prof. Garnett,

Thanks for posting this. Color me pleasantly surprised by Jenkins' decision to join the lawsuit and release his well-crafted statement publicly. There are relatively few Catholic universities/colleges that have joined as plaintiffs in the various filings, and given his Fr. Jenkins' difficulty navigating the conflict between warring ideological factions at ND, I wasn't holding my breath on him making such a bold decision. Nevertheless, I am both grateful and proud.

Posted by: P. Roach | May 21, 2012 3:13:39 PM

@Edward: well said, I am probably not sensitive enough to the "intrusion" because it is not an issue that really fires me up. I just think fighting for a culture of life exclusively (or perhaps even at all) at the political level is a cop-out that will likely lead nowhere. The gospels should be the model for our advocacy.

I think a little "persecution" might be good for the church, or at least it is better than our comfortable positions in the upper echelons of society, occupying positions at the top of the heap where the only sins you can see are the ones you are incapable of committing. The mandate is pulling the church hierarchy into the muck of life that everyone else has to live in, which is where they should have been in the first place. Maybe it will help us appreciate and take advantage of the freedom that we do have. When our money is used to kill poor innocent children in foreign countries we should become more committed to putting an end to it, instead of sitting idling by because it is someone else's problem. It is sad that the Bishops have become so fired up about something only when something affects them personally. Where are we spending our money over which we have discretion? Notre Dame invests endowment dollars into companies that work hotel workers like mules for poverty wages, but nobody seems to care.

Posted by: Michael | May 21, 2012 4:00:11 PM

Hi Michael,

Thank you! And I do share your frustration in the extent that I have marveled at the swiftness and accuracy of the media campaign waged by the USCCB. I have wondered where this was after the news of Boston broke or in response the the other abuse scandals. Or in response to our invasion of Iraq in 2003 or the use of torture by the Bush Administation. While the USCCB did release statements on both of these issues (and were ones that I did agree with) one actually had to hunt for them. Not so in this case.

I didn't know about ND's hotel investments-I'm sorry if that is the case!

Posted by: Edward Dougherty | May 21, 2012 4:10:13 PM

Joe:

Why do you think that the Serio case (if that's the one you are talking about) offers a clear indication about the strength of the constitutional claim? Yes, it does state the Smith test correctly. But as far as I can see, to the extent that it addresses the individualized assessments exception, it does so in all of one paragraph:

"The fact that some religious organizations—in general, churches and religious orders that limit their activities to inculcating religious values in people of their own faith—are exempt from the WHWA's provisions on contraception does not, as plaintiffs claim, demonstrate that these provisions are not “neutral.” The neutral purpose of the challenged portions of the WHWA—to make contraceptive coverage broadly available to New York women—is not altered because the Legislature chose to exempt some religious institutions and not others. To hold that any religious exemption that is not all-inclusive renders a statute non-neutral would be to discourage the enactment of any such exemptions—and thus to restrict, rather than promote, freedom of religion."

Even if that paragraph adequately discussed the individualized assessment exception (and it doesn't, since it conflates neutrality and generaly applicability), the exemptions here are more varied and expansive. That doesn't mean that the FEC argument will win -- it well may lose, or it may sometimes lose and sometimes win. But it does not seem to me that the Serio discussion is likely to inform whether it wins or loses.

Posted by: Marc DeGirolami | May 21, 2012 4:35:27 PM

Mike and Ed,

I agree with you that Church leaders are often negligent with respect to grave moral issues with implications that right under their noses. With respect to ND having investment dollars in shady hotels overseas, I would add that I think Notre Dame needs to give careful thought to the extent to which the school has investment dollars anywhere in China. Having listened to a presentation by Scott Malpass a few years back, I know that ND was heavily invested in China at the time. Given China's record with religious freedom, torture, forced abortion and policy of returning North Korean refugees to Pyongyang, where they are routinely executed, makes me question the appropriateness of ND having any ties to China at all whether financial or otherwise.

That said, these issues are geographically and substantively rather attenuated when compared to the HHS mandate and the bishops' appropriate response. The HHS mandate represents a direct, unambiguous, contemporary and LOCAL violation of the Church's right to define and practice its own faith. What you contend are the bishops' failures to descend their ivory towers and address important issues are neither directly comparable nor sufficiently within their purview to necessitate their direct involvement.

I highlight the word "local" because it is the most important distinction. Before all else, a bishop is tasked with the administering of sacraments and the spiritual well-being of Catholics within his territorial diocese. The fact that the mandate tries to usurp control from a bishop and prescribe certain practices which violate the Catholic faith unambiguously requires the bishops' immediate attention and outcry. It is not comparable to any responsibility a bishop carries to protest U.S. spending overseas that might implicate either the Catholic faith or moral obligations of Americans more generally. There are local bishops in foreign territories who carry the responsibility to address the spiritual needs of their own dioceses(although, admittedly, China does not allow the Church truly Catholic bishops in the first place, which to some extent necessitates a greater degree of assistance by Church leaders outside of China). It is not the USCCB's duty to speak on behalf of a bishop in another diocese who is perfectly capable of speaking for himself.

Additionally, I take exception with your characterization of the USCCB as ignoring other contemporary social ills. The mandate is simply an issue that attracts a great deal of public attention, thereby giving a false impression that this is the only sort of issue about which bishops will raise their voices. If you don't think bishops, and the USCCB in particular, insert themselves into other public issues of moral importance, then I contend that you are not sufficiently familiar with their statements and/or decisions. For example, are you aware of the bishops' statements about federal sentencing guidelines or recent federal budget appropriations? Obscure, yes, and that's my point. The USCCB, and bishops more generally, routinely release public statements about countless issues with Catholic implications which are relevant to their dioceses. These statement simply do not generate the mystified reactions by the mainstream. In short, believing that bishops are preoccupied with the Church's teaching on abortion and human sexuality discounts the fact that, on these issues, the Church is decidedly counter-cultural.

Posted by: P. Roach | May 21, 2012 5:00:46 PM

I think you can place all of this in the lap of Father Jenkins. Dispite the objections of many American bishops, including his own, he insisted in honoring this man who openly campaigned against our constitution. Now he will have to bear the burden of the lawsuit.

Posted by: Glenda | May 21, 2012 5:25:05 PM

Glenda, you mean to suggest that Fr. Jenkins' Obama invitation enabled the passage of Obamacare and sufficiently emboldened the President and Sebelius to issue the mandate? What evidence leads you to make such a logical leap? While I was decidedly opposed to Obama's commencement address and honorary degree, I can say with complete conviction that Fr. Jenkins is at fault for neither Obamacare nor the mandate.

Posted by: P. Roach | May 21, 2012 5:45:41 PM

P. Roach: I am aware of the Bishop's statements on those other issues that you mentioned but there wasn't a letter read at every mass imploring (demanding?) that all faithful catholics call their representatives and stand up for the religious freedom of the church (if they had urged us to demand a public option--a program that would've been a realization of CST and would've avoided the entanglement with the bishops--then none of us would be in this mess, I wonder where all the good Catholic lawyers were then?) I may have overstated the case by insinuating that the Bishops only care about this one issue, but it is clear to any observer where their priorities are.

Also, I agree with you in principle that the Bishops should first approach those issues that are close to home, but home means their flocks first and not themselves first.

I was referencing Notre Dame's investment in HEI Hospitality which is a private equity firm that is funded by university endowments that flips hotels for profit and has a track record of labor abuse. Their hotels are in the United States. The connection is much more direct than the HHS mandate and the university enjoys the profits of the fund. Those profits don't come from rubbing two pennies together. Brown pulled out of the fund because their ethical investment panel thought it was too unethical of a business for them to be involved with and all most of ND's peers have ceased involvement with the firm.

Posted by: Michael | May 21, 2012 5:51:21 PM

Joe,

I'd be interested to know why you believe the mandate is "narrowly tailored" when a clearly less restrictive means of achieving the interest would have been for the government to directly fund the open accessibility of birth control itself. If there's a less restrictive means, how can this possibly survive strict scrutiny?

Posted by: P. Roach | May 21, 2012 5:52:42 PM

"I was referencing Notre Dame's investment in HEI Hospitality which is a private equity firm that is funded by university endowments that flips hotels for profit and has a track record of labor abuse." According to the activist arms of service-employee unions who just so happen to be trying to get a piece of HEI's action through worker-coercing policies like card-check neutrality. Cry me a river.

Posted by: Mike | May 21, 2012 6:36:06 PM

Michael,

You're suggesting that because the bishops did not publicly espouse a position NOT required by the Catholic faith(i.e. an endorsement of the public option) they somehow forfeited any credibility necessary to espouse a position that the Catholic faith DOES require (i.e. opposing their government ordered funding of birth control)? Until the day comes when the Catholic Church authoritatively teaches that universal public health care is a human right (i.e., likely never), this argument will be on incredibly shaky grounds. There is no mistaking the Church's authoritative teaching on birth control, or her interest in upholding that teaching. Meanwhile, there is no authoritative Church teaching on whether medicine should be socialized and, to boot, there are reasonable arguments to the contrary which a Catholic, even a bishop, may personally hold. Accordingly, I fail to see how the bishops' decision not to endorse the public option, whether conscious or by omission, affects their stand against the mandate, which the Catholic faith expressly compels.

Also, it is not "clear to any observer where their priorities are," at least not in the way that you suggest. I certainly do not fit into this category. I do not believe, in fact, that the bishops are primarily self-motivated here. Call me crazy; call me naive; but I actually believe that many, if not all, of our bishops believe that it is in their flocks' best interests for the mandate to fall, and that their decision to oppose it was borne out of concern for them (their flocks) and not themselves. I personally choose Catholic schools, Catholic charities, and opt to tithe in my local parish because of my sincere belief, as a matter of faith, that I must not allow my resources, time, and charity to be funnelled into practices which I find morally repugnant. The mandate inhibits my ability to practice my faith in this way. To deny this is to deny the fungibility of money. So while I agree with you that this mandate most directly affects the institutional Church's capacity to adhere to the tenets of the faith, I nevertheless believe that this also significantly affects the capacity of the doctrinally sound layman to adhere to his faith, and that in opposing the mandate the bishops were intimately motivated by preserving his ability to do so.

Lastly, I would add that I do not believe a letter should be read at every mass on federal sentencing guidelines, budget appropriations or any other political issue which does not require a faithful Catholic's assent. To be faithful to authoritative Church teaching, one need not have a particular position on socialized medicine. To be a faithful Catholic, one need not endorse a progressive tax regime. To be a faithful Catholic, one need not support education vouchers. I could go on. It is unavoidably true, however, that the mandate is in direct conflict with authoritative Church teaching, namely, the teaching which holds birth control to be gravely sinful and that Catholics are not practice or support it in any way. The number of political issues involving so direct a violation of Church teaching and which seek to compel the Church to directly contravene its own principles are few. In fact, this example just might be unprecedented. This alone more than justifies the bishops' decision to read a letter on this issue at every Mass.

Posted by: P. Roach | May 21, 2012 6:48:51 PM

"But first We must speak of man's rights. Man has the right to live. He has the right to bodily integrity and to the means necessary for the proper development of life, particularly food, clothing, shelter, medical care, rest, and, finally, the necessary social services. In consequence, he has the right to be looked after in the event of illhealth; disability stemming from his work; widowhood; old age; enforced unemployment; or whenever through no fault of his own he is deprived of the means of livelihood." Pacem in Terris.

While I would argue that you can wiggle your way out of this kind of teaching and still be a faithful Catholic, the same can be said of the church's teaching on other matters. In light of the church's teaching on social justice, I would argue that the unconscionable inequality that characterizes our society makes a more authoritative demand on the hierarchy and the laity. While tithing is certainly admirable, any luxury in light of the poverty in the world is not any less "gravely sinful" than the use of birth control.


Posted by: Michael | May 21, 2012 8:18:44 PM

Michael,

Where did I anywhere state that a person has no inherent right to be cared for when sick? Nowhere have I made this claim. What I said is that the Church has no authoritative teaching and likely will not have an authoritative teaching which holds that socialized, state-run medicine is a human right. The best way to ensure that all persons have the health care they need is a subject of considerable debate, and certainly not one about which the Church has taken an authoritative position, try as you might to argue to the contrary.

Pacem in Terris, moreover, is a papal encyclical. While I largely agree with and respect its arguments, it is an example of the exercise of Ordinary, not Extraordinary, Magisterium. A papal encyclical is the highest form of Ordinary Magisterium, and we accordingly owe it great deference, but the mere fact that something was stated in an encyclical does not render it officially promulgated Church teaching. Only ex cathedra statements and pronouncements of ecumenical councils bestow such "officialness" (some would argue that, in some circumstances, consistent acceptance over the course of centuries can also render teachings "authoritative" even if not officially promulgated, but this is often subject to debate).

The Church's prohibition against birth control is as old as the Church. It was specifically prohibited in the Didache, the earliest (A.D. 60) document outlining Christian moral precepts, and has been reaffirmed time and time again over the past 2,000 years. It is decidedly an "authoritative teaching". Attempting to equate the Church's unambiguous prohibition against birth control to John XXIII's statement about health care in a lone papal encyclical in 1962 is foolhardy. A bishop's obligation with respect to the Church's expressed, authoritative teaching on birth control is substantially more well-defined and beyond argument than whatever socialized medicine arguments you might construe out of a 50-year-old papal encyclical.

Posted by: P. Roach | May 21, 2012 9:06:28 PM

"Cry me a river." Mike, I am glad you took the time to investigate the issue and have confidence that you are making a preferential option for the poor in your position.

Posted by: Michael | May 21, 2012 9:36:28 PM

Papa Roach, this is my last resort. I am not going to go down that road with you. Don't forget to love big guy.

Posted by: Michael | May 21, 2012 10:15:13 PM

"Mike, I am glad you took the time to investigate the issue and have confidence that you are making a preferential option for the poor in your position."

Thank you. I did and I am.

Posted by: Mike | May 21, 2012 11:06:06 PM

"Only in Truth, does Charity shine forth." - Caritas In Veritate
"Man does not live on bread alone, but on every Word that comes from God."

Which is why, those who are Catholic understand that even in a pluralistic society, there is only ONE Word of God, ONE Truth of Love, Who Has revealed Himself to His Church in the trinitarian relationship of Sacred Tradition, Sacred Scripture, and The Teaching of The Magisterium and thus one cannot be part of The Body of Christ and leave your conscience behind, for a Catholic conscience, is one that is formed to Christ and His Church.

Posted by: N.D. | May 22, 2012 8:14:09 AM

Michael, I'm not sure that I understand your "last resort". What "road" are you unwilling to go down? And how is anything that I've written indicative of a failing "to love"? I don't follow ...

Posted by: P. Roach | May 22, 2012 10:35:45 AM

Mr. or Ms. (I'm not sure which is proper) Roach,

I don't think our disagreement is over the decision to challenge the mandate but rather the importance that the USCCB is attaching to this fight in the religious liberty battle. I am aware of the many statements they make, including the ones you cite on sentencing and the budget. They are obscure and that's my point-the USCCB puts these statements out and then depends on enterpirsing laity (such as myself) to actually find these statements. Nor are they aware of the different types on encyclicals or the source of the birth control teaching. When that doesn't happen, the USCCB then can't blame the laity for thinking that this is really all about birth control. Remember the old saying about the tree falling in the forest? Maybe Michael's suggetsion (which you disagree with) of a letter read as Mass or inserted in the bulletin pertaining to a social issue that doesn't have to do with birth control so that the laity gets a better idea of the Church's thoughts (while stating that the laity isn't bound to these opinions). Also, perhaps Cardinal Dolan needs to get on more news programs to make these points.

Back here in Michigan, our Catholic Conference (one of the parties to yesterday's lawsuit) is also speaking out against a law that the usual gang of idiots, dolts and birthers (otherwise known as today's Michigan House GOP) is trying to pass against any "foreign" law being used in Michigan courts. It's an anti-Sharia bill but the MCC is pointing out that this could also prevent canon law from being cited, as well. That's the kind of religious liberty fight that the USCCB and other Catholic bodies need to cite, as well as this one.

Finally, regarding the public option argument in the ACA, I think Michael was trying to make the point (correct me if I'm wrong) while a public option is not mandated by CST, it would have taken the funding of contraceptives out of the private insurance realm and done it though government funding. The devil would have been in the details, of course, but perhaps such an option would have satisfied the USCCB's concerns on being made to cooperate with an intrinsic evil.

Posted by: Edward Dougherty | May 22, 2012 10:39:53 AM

The Catholic Left never ceases to amaze me. Catholic institutions are forced to file lawsuits in response to unprovoked aggression by the federal government, and the seamless garment crowd is hijacking the thread to argue in favor of turning over even more power to that same government. Absolutely unbelievable.

Posted by: Brian English | May 22, 2012 11:17:33 AM

Thank you, Brian! I always aim to amaze!

BTW, there was thought to have been some support within the USCCB for a public option for precisely that reason.

Posted by: Edward Dougherty | May 22, 2012 11:31:05 AM

P. Roach - the "last resort" was a reference to a "Papa Roach" lyric...lighten up. The road I am not interested in traveling is a review of the entire history of the church and a discussion of the hierarchy of church authority. I am not discounting such an inquiry but it is not as important to me as it is to you so there it is. The last part of sentence was just a conciliatory sign off, not an indictment.

Edward - yes that is exactly what I mean. Putting aside my own opinion as to universal health care and its resonance with CST, I think that good Catholic lawyers should have foreseen the situation that the Bishops have found themselves in and suggested allowing the government to provide these services avoids the situation we are in. To me, and I suspect many others, this is a distinction without a difference. But to Fr. Jenkins, and others who see this as an affront to religious liberty, the fact that it is Bishops/institutions who have to pay the money is the important thing ("Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services" Fr. Jenkins). But, I of course do not believe this was a simple oversight. The culture warriors are always looking for a fight, too bad my tuition dollars have to pay for it this time! (aside: is Jones Day doing this pro bono?)

Posted by: Michael | May 22, 2012 11:32:38 AM

I have a Question regarding the RFRA I would like addressed.

"(a) In general
This chapter applies to all Federal law, and the implementation
of that law, whether statutory or otherwise, and whether adopted
before or after November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject
to this chapter unless such law explicitly excludes such
application by reference to this chapter."

http://codes.lp.findlaw.com/uscode/42/21B/2000bb-3

That seems to say that Congress and not a rulemaking body must EXPLICITLY exclude. That was not present in the ACA.

Am I overestimating what a fatal flaw that is?

Posted by: jhood | May 22, 2012 12:18:40 PM

In response to jhood: The quoted language describes how the RFRA applies with respect to federal law. The general rule in (a) is that it applies to all federal law and its implementation, whereas (b) says that after-enacted law is subject to the RFRA unless that subsequent law explicitly says that it shall be applied notwithstanding RFRA.

Suppose that Congress recognized that HHS implementation of the preventive services requirement could result in a burden on religious liberty that could not be justified under the RFRA, but that Congress nevertheless wanted to protect such a religious-burdening implementation from invalidation under the RFRA. Congress could address that problem by providing in the PPACA that its construction and application should take place notwithstanding Chapter 21B of Title 42 (where the RFRA is codified). The PPACA contains no such language. Rather the Administration will have to argue that the manner in which HHS has implemented the preventive services requirement complies with the RFRA.

Posted by: Kevin C. Walsh | May 22, 2012 1:00:11 PM

"BTW, there was thought to have been some support within the USCCB for a public option for precisely that reason."

What a brilliant plan! "We know the government is hostile to central tenets of the Faith, and will probably try to get us directly involved in actions that we view as immoral, so let's just turn over healthcare COMPLETELY to that government; that way, we can wash our hands of the whole nasty business."

Posted by: Brian English | May 22, 2012 1:13:13 PM

Uh, Mr. English, the public option was only meant to be a part of the ACA, not the whole thing.

Posted by: Edward Dougherty | May 22, 2012 1:18:52 PM

Thansk Mr Walsh

Posted by: jhood | May 22, 2012 1:54:02 PM

"Uh, Mr. English, the public option was only meant to be a part of the ACA, not the whole thing."

Right. And the system established by the Obamacare doesn't promote employers dropping coverage so that people get forced into the public sytem.

And beyond that, you are missing the point that the progressive-thinking bishops you admire were, at the very least, looking to dump Catholic institutions into the public system so that they could avoid the current unpleasantness. Hardly profiles in courage.

Posted by: Brian English | May 22, 2012 2:10:33 PM

English, this whole controversy has to do with the fact that Catholic institutions are being forced to directly pay for these services, rather than indirectly which is the status quo today. This is the crucial moral distinction that is apparently worth all this fuss. It wouldn't be dumping the Catholic institutions into the public system it would be changing the identity of the person who pays. The compromise offered by the Obama administration was a dumb legalistic distinction but they were reasonable in offering it to the bishops because at the end of the day, it is just such a distinction that started this whole mess.

Posted by: Michael | May 22, 2012 2:32:33 PM

"Catholic institutions are forced to file lawsuits in response to unprovoked aggression by the federal government, and the seamless garment crowd is hijacking the thread to argue in favor of turning over even more power to that same government."

Oh this is mild by comparison. Over at dotCommonweal, one blogger has characterized this suit as nothing other than "harassment" of the Obama administrations, and part of an alliance between teh GOP and the Bishops to prevent the President's re-election. And yet we're told at the same time that it is the Bishops who are engaging in naked partisanship!

Posted by: Josh | May 22, 2012 2:55:22 PM

"English, this whole controversy has to do with the fact that Catholic institutions are being forced to directly pay for these services, rather than indirectly which is the status quo today."

How is indirect payment mandated by the government the status quo?

"The compromise offered by the Obama administration was a dumb legalistic distinction but they were reasonable in offering it to the bishops because at the end of the day, it is just such a distinction that started this whole mess."

No, what started this whole mess was government officials thinking they could force Catholic institutions to act against Church doctrine and no one would call them on it.

Posted by: Brian English | May 22, 2012 3:54:08 PM

Status quo: the government forces the Church to pay wages, some of these wages are spent on birth control (i.e. men and women who choose to purchase it)

New Mandate: Government forces the Church's insurance plans to include birth control. Women can choose whether or not to elect to take it. Unclaimed birth control benefits provide a cost savings to the now tightly regulated insurance companies which will likely translate into marginally cheaper health services for everyone.

Posted by: Michael | May 22, 2012 4:18:30 PM

On a separate note, what is the deal procedurally with these lawsuits? It's very unclear from the press reports. Some articles seem to suggest that there were coordinated filings, each with a single plaintiff, by multiple dioceses and Catholic institutions, with each filing in its local federal district court. Is that the case? If so, is there some plan to consolidate into one multi-district case (I have no idea whether that is feasible) or some other plan to coordinate the litigation of the the lawsuits? Or is it the case that each plaintiff in each lawsuit filed on its own initiative, at different times?

Would appreciate any info anyone might have on this.

Posted by: Dan | May 22, 2012 4:19:05 PM

"New Mandate: Government forces the Church's insurance plans to include birth control. Women can choose whether or not to elect to take it. Unclaimed birth control benefits provide a cost savings to the now tightly regulated insurance companies which will likely translate into marginally cheaper health services for everyone."

So the Church institutions are forced to purchase healthcare plans that violate Church doctrine, but at least there are cost savings, and isn't that really what's important in life?

Posted by: Brian English | May 22, 2012 5:32:19 PM

Rick Garnett: Okay, but people who comment on blogs don't usually read sizable briefs etc. and often enough they still manage to get the basics of what is at stake right. And, I think I do. But, so be it.

Marc DeGirolami: The ruling doesn't answer every federal constitutional question (and there still are statutory ones) but I think it does even on the point you cite "inform" the point. A detailed response would go beyond a normal blog comment and I was covering various points there.

P. Roach: First, I don't know what the government will wind up doing since again it will be some time before the institution here will have to do this & the final regulations don't appear even to be in place yet. That is, as I said, sorta part of the "compromise." Second, Congress determined that the "necessary and proper" way to supply health services - including the myriad of ones that might in some fashion clash with institutions beyond churches and those that serve and employ people of other faiths - was not direct payment. Thus, a general applicable rule was set here with a compelling state interest in gender equality, women's health and ironically enough perhaps even protection of life (including preventing unwanted pregnancies that will result in abortions). But, I am far from sure all 12 circuits will apply the not that clear narrow tailored test the same way. Cf. US v. Lee, where the Amish could very well have been treated differently but it was not deemed required.

As to Brian English ... yes, society has certain rules, such as involving race discrimination, and even religious education institutions have to follow the rules in various cases even if it violates doctrine. Thus, if child labor is part of a religion, it doesn't matter. Prince v. MA. Basic health care fits here. Single payer .. mandated by the 1A?

Posted by: Joe | May 22, 2012 10:36:49 PM

Let's recall what happened here as some think there is some singling out of religions here. The Obama Administration accepted the findings of a panel of health experts respecting policies for preventive health care, eight or so, one being contraceptives that have various health benefits. The Administration did not single out religion. A general applicable rule that followed practice in various states (which had different policies) was applied, later a stronger effort to find some middle ground reached. Ironically, the religious exemptions set up in some fashion is supposedly a problem. The "wrong" type of Catholics appreciated this and accepted it. But, the policy isn't even truly final -- there is still a year or more and the Obama Administration is still open to tweaking it all. No one is forced to use contraceptives. Money being fungible, the institution is still some way going to be tainted unless they expel everyone who -- partially as employees -- somehow use money to buy contraceptives, including by accounting that is comparable to what is supposed to be okay when the question is segregation of funds for government funds to religious institutions. Health care and gender equality are both compelling state interests & until single payer is possible, it is "necessary and proper" to determine that use of education institutions and employers are proper here, even sometimes when it classes with religious faiths. U.S. v.Lee et. al.

Posted by: Joe | May 22, 2012 10:52:21 PM

"Health care and gender equality are both compelling state interests & until single payer is possible, it is "necessary and proper" to determine that use of education institutions and employers are proper here, even sometimes when it classes with religious faiths. U.S. v.Lee et. al."

So any time people decide something is a good idea, especially "experts," the First Amendment has to give way? I believe that interpretation was on the wrong end of the decision is Hosanna-Tabor.

But beyond that, your adoration of the single payer system returns me to an issue I raised above--do you really want to hand over the entire healthcare system to the federal government? I would think any Catholic who cares at all for life issues would believe that was insane.

Posted by: Brian English | May 23, 2012 10:51:05 AM

In regards to paragraph one of the complaint, to state that this case is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception, that these services are, and will continue to be, freely available, and nothing prevents the Government itself from making them more widely available, but the RIGHT to such services... Is basically a contradiction in terms, for this statement claims this case is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception..., while establishing that there is a right to such services, simultaneously.
Is it possible to restate the complaint so that it is clear that the purpose of Religious Liberty is to serve as a complement to the Life-affirming and Life-sustaining obligation of The State to protect our unalienable Rights that have been endowed to us from God, for the sake of our posterity and the prosperity of this Nation?

Posted by: N.D. | May 23, 2012 11:08:17 AM

Wonder what position Obama's "Faith Based Czar" will take on Notre Dame's intransigence. Will he penalize ND for not following the state's pronouncement on the university's proper role ?
Religion may not put up a manger scene but the government can do what it pleases to negate religion's rights. (some over-riding-to them more important than religion's right) . Separation of church and state to them is a one way street with the admnistration deciding who is right about rights . Hope the courts don't see it that way.

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