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AN INVESTIGATION INTO THE CONSTITUTIONALITY OF AN EXEMPTION FROM THE HHS MANDATE BASED ON THE FIRST AMENDMENT

Kelly A. Dunnahoo, EC-571 202-1407 April 15, 2012

The right for one to freely exercise his religion is granted in the First Amendment to the United States Constitution and is held dear to those who wish to be free from governmental interference as they live out their faith. However, various decisions by government agencies in recent times indicate that this most revered right may be eroding.1 A recent decision by the United States Department of Health and Human Services (HHS) has brought this issue to the forefront of American political discourse. On January 20, 2012, the HHS issued a mandate declaring that all health policies must include both contraceptive services and abortion-inducing medication by August 1, 2012, giving those “employers with religious objections” twelve (12) additional months to comply. 2 An accommodation was issued by President Obama after a large public outcry but it did not include any reforms that could allay religious liberty concerns.3 Finally, legislation aimed at providing religious liberty exemptions to the mandate was proposed by Senator Roy Blunt (R-MO) but was defeated almost entirely along party lines leaving the Catholic Church in America no choice but to fight for the abolition of the mandate.4 This paper will briefly review the history of the interpretation of the Free Exercise clause of the First Amendment and how the Supreme Court views religious freedom cases in the present day. In addition, merits of the case against the mandate will be discussed specifically as they pertain to

1. United States Conference of Bishops, Our First, Most Cherished Liberty, http://www.usccb.org/issuesand-action/religious-liberty/our-first-most-cherished-liberty.cfm (accessed April 12, 2012). 2. Sarah Torre, Adding Insult to injury: Obama Admin refuses to protect religious liberty, http://blog.heritage.org/2012/01/25/adding-insult-to-injury-obama-admin-refuses-to-protect-religious-liberty/ (accessed April 15, 2012). 3. Brian Montopoli, Obama announces revamped contraception policy, http://www.cbsnews.com/8301505267_162-57374456/obama-announces-revamped-contraception-policy/ (accessed April 16, 2012). 4. Michelle Bauman, Senate rejects Blunt amendment to defend religious freedom, http://www.ewtnnews.com/catholic-news/US.php?id=4990 (accessed April 16, 2012).

the requirement that contraceptive services be covered in insurance plans provided to employees of Catholic institutions. A review of various state constitutions in colonial times provides some insight into the overall feeling of the time period regarding what freedom of religion entailed. In general, verbiage included in these constitutions explicitly protected this freedom as long as it didn’t infringe upon the rights of others.5 There were actually few religious exemptions granted in early American history, but this should not give the idea that they were not permitted nor should it give an impression that this issue was not an important one. In reality, the government has not always been as hostile to the idea of religion as it has become in present day America. Congress took this issue seriously when it passed various laws that might restrict the right of Americans to practice their religion.6 However, there have been instances of religious persecution throughout American history and it was not until the middle of the twentieth century that the freedom to practice one’s religion again became a widely accepted concept.7 At this time, a standard was developed to determine if the free exercise clause had been violated in a particular case. The “compelling state interest test” stated that a purely secular law, neutral in its intent, may only restrict the free exercise of religion if it can be shown that the government had a compelling reason to do so. 8 This test allowed protections of the Amish’s desire to remove their children from public high schools

5. Thomas C. Berg, The First Amendment: The Free Exercise of Religion Clause, Bill of rights series (Amherst, NY: Prometheus Books, 2008), 100. 6. Ibid., 102. 7. Ibid., 19. 8. Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism, second ed. (Lanham, MD: Rowman & Littelfield Publishers,, 2009), 24.

(1972) as well as allowing Seventh Day Adventists to abstain from work on Saturdays without fear of reprisal (1987).9 In 1990, the Supreme Court issued a decision in the Employment Division v. Smith case that was to have lasting and troubling repercussions. Smith and a fellow worshiper were terminated from their employment because they tested positive for drugs after ingesting peyote during a religious ceremony. 10 In this case, the Court sided with the government and did not consider the “compelling state interest test.” It found that in contrast to previous cases, Smith involved the violation of a “generally applicable criminal law” and the government therefore did not have to show a “compelling interest.”11 Another finding which raised concerns regarding the future of religious exemptions was that the Court indicated that it could not properly weigh the importance of a specific theological practice against the benefits derived from the law in question.12 There was broad opposition to what was seen as a dangerous precedent set forth in the Smith verdict. In an act of true bipartisanship, Congress sought to invalidate Smith by passing the Religious Freedom Restoration Act (RFRA) of 1993. RFRA states that a person who is requesting a religious exemption from a particular law has to demonstrate that the law created a burden on their ability to properly exercise their faith. If this was found to be the case, then the government was required to show that they had a “compelling interest” to enforce the law and that they were seeking that interest through the “least restrictive means” possible.13 In 2006, the

9. Kathryn Page Camp, In God We Trust (Grand Haven, MI: Faith Walk Publishing, 2006), 119-20. 10. Berg, The First Amendment: The Free Exercise of Religion Clause, 62. 11. Kathryn Page Camp, In God We Trust, 124. 12. Berg, The First Amendment: The Free Exercise of Religion Clause, 66. 13. Kathryn Page Camp, In God We Trust, 127.

defense of RFRA was successful on the federal level as the Court upheld the right of a religious group to ingest tea made from a drug that was listed in the Controlled Substances Act. 14 This finding was consistent with how the Court has historically viewed legislation that deals with religious issues. For example, legislation that creates various exemptions has always been found to be constitutional15 even though such exemptions are considered by some to contradict the Free Establishment clause by promoting one religion over another or by promoting religion itself over none at all.16 Nevertheless, the Court needs some guidelines to determine the validity of an exemption request in order to weed out spurious claims. Certainly, any exemption that violates another’s rights as enumerated in the Constitution must not be allowed.17 Sincerity of the beliefs and practices for which an exemption is claimed is also important, as it can lend credibility to the argument. Sincerity can be affirmed based on historicity of the belief, consistency with other practices of faith and related actions.18 In terms of the Church’s teaching on contraception, sincerity cannot be refuted. The Church has always taught that contraception is an objectively moral evil as it eliminates the procreative aspect of the marital act. Various Church Fathers wrote about this issue and as the practice became more prevalent, the admonitions became stern and include The Decretals of Pope Gregory IX, which summarized the moral teachings of the Church, a document by Pope Sixtus V aimed at immorality during his papacy, and the landmark encyclical Humane Vitae which once again

14. Ibid., 130. 15. Berg, The First Amendment: The Free Exercise of Religion Clause, 72. 16. Ibid., 80. 17. Ibid., 223. 18. Ibid., 211.

affirmed the immorality of contraception.19 It is clear that a requested claim for an exemption from the HHS mandate cannot be considered to be spurious based on the centuries of consistent teaching that the use of contraception is contrary to the Catholic faith. The Church must demonstrate that a burden exists and this fight can take place on different fronts. The first thing that should be done is to properly define what “church” actually means. In order to qualify for an exemption from the mandate, an employer must meet an extremely “narrow” definition of service, limited to the “hiring and serving primarily those of their own faith”20 as if these organizations somehow exceed an arbitrary religious bar while others are determined to not be “religious enough.”21 This definition unfortunately either misunderstands or misrepresents the role of religion as it relates to the world. Religion is not a private exercise. Since man lives in society and it is proper to his existence that he interacts with others, it necessarily follows that freedom of religion must include the outward expression of one’s beliefs whether it be in word, action, or inaction (Dignitatis Humanae, 3). In order that these expressions are not thwarted, religious freedom cannot be reduced to merely a freedom of worship (Dignitatis Humanae, 15). Certainly, the Catholic Church is not relegated to individual places of worship where people come for a time period on Sundays in order to satisfy their weekly obligation. The mandate has therefore created a barrier between the liturgical aspect of “church” which falls within its narrow definition and the ministries of

19. John A. Hardon, S.J., The Catholic Catechism (New York, NY: Doubleday, 1981), 367-72. 20. Administrative Committee of the United States Conference of Catholic Bishops, United for religious freedom, http://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religious-freedom-andhhs-mandate.cfm (accessed April 4, 2012). 21. United States Conference of Bishops, Our First, Most Cherished Liberty, http://www.usccb.org/issuesand-action/religious-liberty/our-first-most-cherished-liberty.cfm (accessed April 12, 2012).

outreach and charity that flow from the Church itself.22 The Catholic Church was commissioned to serve and proclaim the gospel to all people (Lumen Gentium 10). The numbers of needy people that various Catholic institutions have helped over the years is staggering, yet it is impossible to quantify how many of those were Catholic as they were not required to show their baptismal certificate before they received the help that they needed. 23 In addition to the work of the Catholic institutions is the important work performed by the laity. The laity are called to go into the world and “engage in temporal affairs and…[order] them according to the plan of God (Lumen Gentium 31) and to proclaim and defend the Truth of Christ with charity and prudence (Dignitatis Humanae 14). Their exercise of religion necessarily takes them outside of the parish doors as they build up the Kingdom of God in various ways, including displaying their moral fortitude. As an agent in the world, the laity must continually fight against injustice and governmental intrusions that attempt to thwart their task of sanctifying the world (Lumen Gentium 31). They must show that a fight for an exemption from the mandate is not just an issue for the bishops, but that it poses a real burden on them as well. In fact, Pope Benedict XVI has recently called on an “engaged, articulate and well-formed” laity to take on this task against the “dominant culture.”24 Another front on the fight against the mandate is to educate about the role of the conscience in the moral life. God has written His Law on every man’s heart. It is here in his conscience that one recognizes the good that he must do and the evil that he must avoid
22. Administrative Committee of the United States Conference of Catholic Bishops, United for religious freedom, http://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religious-freedom-andhhs-mandate.cfm (accessed April 4, 2012). 23. Bishop William E. Lori, The Jesus mandate vs. Obama’s mandate, http://www.washingtonpost.com/blogs/guest-voices/post/the-jesus-mandate-vs-obamasmandate/2012/01/27/gIQAJ5jpVQ_blog.html (accessed April 11, 2012). 24. United States Conference of Bishops, Our First, Most Cherished Liberty, http://www.usccb.org/issuesand-action/religious-liberty/our-first-most-cherished-liberty.cfm (accessed April 12, 2012).

(Gaudium et Spes, 16). There are many who unfortunately believe that various moral beliefs, especially those that run counter to social norms, are arbitrary rules created by the Church to impose on the faithful. There is certainly a significant part of the population that feels this way regarding Church teaching on contraception. However, the Church does not add any portion of truth to what already resides within. Rather, it aids in the development of this truth from “the starting point of the primordial act of faith” (Vertitatis Splendor, 64). The faithful Catholic realizes that when he willingly makes his profession of faith, he is assenting to all that the Catholic Church teaches regarding faith and morality.25 He will embrace these truths and allow his conscience to internalize them. As the conscience is an arbiter of what is truth as opposed to being its source, it must be properly formed. The conscience makes reasoned applications of the natural law as it pertains to human actions and is formed accordingly. By following the guidance of the Magisterium, especially as it speaks to contemporary issues, man can accomplish this important task.26 When one understands that a properly formed conscience is the reality of God’s Truth alive within him, it becomes obvious that he must never act against his own conscience. To do so is to do violence to his very being and to act contrary to the way to which God is calling him. Yet this is exactly what the mandate is demanding of the faithful Catholic! Ironically, organizations that have fought long and hard for freedom of conscience rights are now being called to violate their own conscience. America will lose its ability to speak out against religious injustices in other places

25. William E. May, An Introduction to Moral Theology, 2nd ed. (Huntington, IN: Our Sunday Visitor Pub., 2003), 65. 26. Ibid., 64.

in the world27 because no condemnation can be taken seriously from a detractor that refuses to recognize the plank in his own eye (Matthew 7:3). By defining the mission of the Church and the role of the conscience in the moral actions of man, a foundation is established to further defend the position that the mandate has created a burden for faithful Catholics. Certainly, even the most vigorous supporter of the mandate would understand the need for an exemption if someone was actually being forced to use contraception. However, this issue may become less clear to some since Catholics are merely being required to provide a forum for other people to use it. Yet any lack of clarity is due to a misunderstanding of the concept of sin. While sin is a personal act of rebellion against God and “right conscience” (CCC 1849), one also can participate in the sins of others, therefore bringing condemnation on himself when he does so (CCC 1868). It is also important to be able to understand and combat potential arguments against the idea that the mandate creates a burden for Catholics. Two of the main ideas being propagated in popular discourse are that an exemption to the mandate would somehow invalidate a woman’s “right” to reproductive care and that the Church is merely out of touch with society and needs to change its teaching regarding contraception. The first claim should be immediately discounted as a right to free contraception does not exist and pregnancy is not a “disease” that must be cured.28 The second argument is assumed to be valid, mainly because it appears to have statistics backing it up. It has been widely reported that a Guttmacher Insitute study has shown that 98% of Catholic women have used contraception during their lives. This mandate must not be a

27. United States Conference of Bishops, Our First, Most Cherished Liberty, http://www.usccb.org/issuesand-action/religious-liberty/our-first-most-cherished-liberty.cfm (accessed April 12, 2012). 28. Ibid.

burden, it is claimed, because the faithful do not appear to have the same moral issues with contraception as the bishops do. The ludicrous notion that Catholic teaching on morality is somehow subject to the whims of a majority notwithstanding, a study of this report 29 clearly demonstrates that this statistic is not representative of the Catholic population. The authors of the report had women self-classify themselves as to their religion. As some people consider themselves Catholic in more of a cultural sense than a strictly religious one, this biased the pool of women away from faithful Catholics to a wider group that may not fully understand Church teaching. This is confirmed by the reported statistic that two-thirds of the Catholic women surveyed did not attend Mass weekly. If one does not realize that she has an obligation to attend Mass weekly, it is unreasonable to assume that she will have a clear understanding of the immorality of contraceptive use. Another absurdity is the fact that the study did not include either women who have not had sex or women who are not actively attempting to avoid pregnancy. It is reasonable to conclude that some of these women are merely following Catholic teaching regarding sexuality and would therefore more likely than not avoid contraception in the future. In addition, sterilization is the form of contraception reportedly used most often among Catholic women. The fact that either the husband or wife had an immoral procedure performed at some point in the past is not a prediction as to how a Catholic woman feels about contraception at the present time. While the findings in this report have given fodder to those who wish to attempt to prove that the mandate is not a burden on faithful Catholics, a reasoned analysis of the report indicates that it is much more likely to be used to merely sway public opinion than to be successful in undermining any serious attempts for an exemption from the mandate.
29. Rachel K. Jones and Joerg Dreweke, Countering Conventional Wisdom: New Evidence on Religion and Contraceptives, http://www.guttmacher.org/pubs/Religion-and-Contraceptive-Use.pdf (accessed April 8, 2012).

Clearly, the mandate will create a burden on Catholics. Once this is demonstrated, the responsibility shifts to the government to prove that there is a “compelling interest” to enforce this law. Two things that will need to be demonstrated are that preventing pregnancy using contraceptive means is an important right for women and that forcing companies to provide insurance coverage would create a significant shift in the availability of contraceptive drugs. Without a doubt, some women are not in a position to have a child at the present time, whether it is due to marital status, emotional maturity or other factors. Yet contraception is not the only means available to prevent pregnancies. Abstention for the unmarried and Natural Family Planning for those who are married are the moral means of achieving the goal of avoiding or regulating pregnancies. In addition, the availability of contraception to women is far from limited. According to the Guttmacher Institute, only 7% of sexually active and fertile females between the ages of 15 and 44 who do not wish to get pregnant are not currently using contraceptives. All federal employees receive contraception coverage through their medical insurance as do 90% of private employees.30 Low-income women also have access to contraception through the Title X family planning program. This government program was instituted in order to ensure that all women had access to contraception and priority is given to lower income women. Funds are granted by the federal government and are ultimately distributed to over 4500 locations that provide family planning services. 31 The case for “compelling interest” is extremely weak. Non-contraceptive means for avoiding pregnancy already exist and an overwhelming majority of women who wish to use contraception already have access to it. In addition, the government has not suggested the “least
30. The Guttmacher Institute, Facts on Contraceptive use in the United States, http://www.guttmacher.org/pubs/fb_contr_use.html (accessed April 14, 2012). 31. U. S. Department of Health and Human Services, Title X Family Planning, http://www.hhs.gov/opa/title-x-family-planning/ (accessed April 14, 2012).

restrictive means” of providing contraceptive services to all women. Instead of trampling on the right of Catholics to freely exercise their religion, the government could have attempted to expand Title X funding so that more women were served. An inability to accomplish this would be an indicator that the idea of free contraception for all does not have traction in the American political landscape. Denying citizens their first amendment rights in order to accomplish this immoral goal is all the more sinister. It is clear from the above arguments that the HHS mandate creates a burden for the faithful Catholic and that the government has no reasonable argument to support it. The mandate is an unjust law and therefore not only must it not be followed, but neither can a compromise be accepted.32 Unfortunately, until the political landscape changes in Washington, it is unlikely that the Church will get a reprieve from this mandate from either the Executive or Legislative Branches as the recent defeat of the Blunt Amendment demonstrates. Therefore, a successful challenge to the mandate may have to come through the Judicial Branch. By appealing to a rich history of religious freedom in America as well as to the guidelines set forth by RFRA, the Church should emerge victorious in a battle before the Supreme Court. The American bishops are ready for this fight. The laity must join them en masse through prayer, word and deed.

32. United States Conference of Bishops, Our First, Most Cherished Liberty, http://www.usccb.org/issuesand-action/religious-liberty/our-first-most-cherished-liberty.cfm (accessed April 12, 2012).

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BIBLIOGRAPHY Administrative Committee of the United States Conference of Catholic Bishops. United for religious freedom. http://www.usccb.org/issues-and-action/religious-liberty/march-14statement-on-religious-freedom-and-hhs-mandate.cfm (accessed April 4, 2012). Bauman, Michelle. Senate rejects Blunt amendment to defend religious freedom. http://www.ewtnnews.com/catholic-news/US.php?id=4990 (accessed April 16, 2012). Berg, Thomas C. The First Amendment: The Free Exercise of Religion Clause. Bill of rights series. Amherst, NY: Prometheus Books, 2008. Camp, Kathryn Page. In God We Trust. Grand Haven, MI: Faith Walk Publishing, 2006. Hardon, John A. S.J. The Catholic Catechism. New York, NY: Doubleday, 1981. Jones, Rachel K., and Joerg Dreweke. Countering Conventional Wisdom: New Evidence on Religion and Contraceptives. http://www.guttmacher.org/pubs/Religion-andContraceptive-Use.pdf (accessed April 8, 2012). Lori, Bishop William E. The Jesus mandate vs. Obama’s mandate. http://www.washingtonpost.com/blogs/guest-voices/post/the-jesus-mandate-vs-obamasmandate/2012/01/27/gIQAJ5jpVQ_blog.html (accessed April 11, 2012). Monsma, Stephen V., and J. Christopher Soper. The Challenge of Pluralism. Second ed. Lanham, MD: Rowman & Littelfield Publishers,, 2009. The Guttmacher Institute. Facts on Contracptive use in the United States. http://www.guttmacher.org/pubs/fb_contr_use.html (accessed April 14, 2012). May, William E. An Introduction to Moral Theology. 2nd ed. Huntington, IN: Our Sunday Visitor Pub., 2003. Montopoli, Brian. Obama announces revamped contraception policy. http://www.cbsnews.com/8301-505267_162-57374456/obama-announces-revampedcontraception-policy/ (accessed April 16, 2012). Torre, Sarah. Adding Insult to injury: Obama Admin refuses to protect religious liberty. http://blog.heritage.org/2012/01/25/adding-insult-to-injury-obama-admin-refuses-toprotect-religious-liberty/ (accessed April 15, 2012). U. S. Department of Health and Human Services. Title X Family Planning. http://www.hhs.gov/opa/title-x-family-planning/ (accessed April 14, 2012). United States Conference of Bishops. Our First, Most Cherished Liberty. http://www.usccb.org/issues-and-action/religious-liberty/our-first-most-cherishedliberty.cfm (accessed April 12, 2012).

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