Win or Lose, Lawsuits against HIES Rules Come with Risk

Article excerpt

WASHINGTON * Since May 21--when 13 Catholic dioceses and at least 30 other church organizations joined in lawsuits across the country (see Page 10) to overturn new federal Health and Human Services regulations requiring many Catholic institutions to provide or allow free contraceptive coverage in employee health care plans--it has become increasingly clear that, whatever the constitutional merits of their case, the path these organizations have chosen is fraught with deep peril, legally and politically.

On the legal front, in a battle likely to go all the way to the U.S. Supreme Court, the plaintiffs could win and establish a clearer constitutional precedent on the extent of religious freedom.

A win could require HHS to recognize rights of conscience and religious liberty that cannot be infringed for a much wider variety of religiously run institutions, among them Catholic (and other religiously sponsored) universities, elementary and secondary schools, hospitals, charities and other social service agencies that are excluded from the current FIRS religious exemption.

Such a win would be a major victory for what the plaintiffs consider the primary cause in this issue, defining broadly the nature of religious liberty in this country and constitutionally restricting the ways in which federal laws and regulations can narrow or even try to define what counts as a church or religious entity.

Or they could lose.

A loss could establish a very different legal precedent--sharply eroding the broad definition of religious entities in most current federal law that is presently enjoyed by faith groups in areas of their ministry in education, health care, charity and social service--areas that many religious bodies, including the Catholic church, consider themselves called to by their faith itself.

An important legal precedent in California, where the Catholic church lost a court challenge to an almost identical issue of a narrowly drawn religious exemption from employer-provided contraceptive health care coverage, offers serious legal caution.

In 2004 the California Supreme Court ruled 6-1 that Catholic Charities of the Stockton diocese could not be exempted from the Women's Contraceptive Equity Act, a 1999 state law that requires nearly all employers to include contraceptives if they provide insurance coverage for prescriptions.

The California act offered an exemption for "religious employers" but defined those as only nonprofit institutions directly involved in inculcating religious beliefs and whose employees and beneficiaries of services are primarily members of the faith group. That excluded charitable, social service, educational and health care agencies of the Catholic church or other religious bodies. Mandatory contraceptive coverage laws enacted in New York and a number of other states in recent years have set similarly narrow definitions of religious employers who are exempt from their mandates.

The HHS regulation first published last August and finalized this January is explicitly modeled after the narrow definition of religious employers found in the California law as well as similar laws in New York and a number of the 26 other states that have mandated contraceptive health care coverage in prescription plans offered by all employers.

Bishop Stephen E. Blaire--who has headed the Stockton diocese since 1999 and was thus intimately involved in the failed effort to overturn the narrowness of the religious exemption in the California law--exposed the concern of some bishops about the current lawsuit strategy over the new HHS regulations in an interview with the national Jesuit magazine America.

"The bishops that I am in contact with in California are strong supporters of the importance of defending and strengthening religious liberty in our country," he told America's associate editor, Kevin Clarke. "I do think there are probably some different concerns with how it is being done. …