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Conscience Cause: Will the President Make a Call for Liberty?

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Ryan Colby 202-349-7219

The president was bragging to the crowd about the contraceptive mandate when he made his “Darn Tootin’!” comment. He might have thought it was a funny response, and it did get him some cheers. But the mandate is no laughing matter to Belmont Abbey, or to the millions of Americans whose religious convictions forbid them from distributing drugs that cause abortions.

We’re “Battling Over Birth Control,” or haven’t you heard? That was the title of a New York Timeseditorial over Thanksgiving weekend insisting that the White House not succumb to Catholic backward thinking over contraception. (Never mind that it’s not just the pope in Rome but slick glossies anymore.) But that’s not actually the battle. The battle is over simple conscience rights that this president’s Department of Health and Human Services doesn’t think Catholic institutions and others with religious objections deserve when providing mandated health plans and contraception coverage.

As has been pointed out, not even Christ Himself would qualify for the exemption HHS has carved out — he couldn’t be ecumenical in His service; a Catholic hospital would have to put a Baptists-not-allowed sign up.

We were warned.

And now Belmont Abbey College is suing (Belmont Abbey College v. Sebelius). Mark L. Rienzi, an assistant professor at the Catholic University of America’s Columbus School of Law, is part of the Becket Fund for Religious Liberty team in the Benedictine school’s legal corner. He talked toNational Review Online about the case and the implications:

KATHRYN JEAN LOPEZ: Why is Belmont Abbey suing? The monks don’t need contraception, and why deny someone who wants/needs this new apparent right under Obamacare?

MARK L. RIENZI: The monks of Belmont Abbey College sued because the government left them no choice. The government is forcing these devout monks to purchase certain drugs for their students and employees, in violation of their religious convictions. For example, the government now requires the college to purchase Plan B (the “morning-after pill”) and ella (the “week-after pill”) for their students. These drugs likely cause abortions, which is a grave sin to the monks. It is one thing for the government to decide it should distribute these drugs itself, which of course is not part of this new law. But it is quite another for the government to mandate that religious Americans with conscientious objection purchase these drugs and participate in their distribution.

The law also forces the college to pay for “related education and counseling” about these drugs. The monks may preach to their students against abortion and contraception on Sunday morning, but on Monday the feds will make the college pay for a counselor to send the exact opposite message to its students. The First Amendment forbids this type of forced speech and burden on religious exercise.

As for denying anyone else the right to buy or use these drugs, the lawsuit seeks nothing of the kind. This lawsuit is not about forcing others to believe and act as the monks do, but rather about preventing the government from forcing these monks to act as the government imposes. Nothing at all prevents employees of the college from purchasing contraception — the monks just shouldn’t be coerced by the government to be the ones to provide them. And if students or employees need or want insurance plans that pay for these items, they are free to go to any of the vast majority of other employers and schools that have no religious objection to them. But everyone at Belmont Abbey willingly came there knowing that their diplomas and paychecks would be signed by Catholic monks.

LOPEZ: The Department of Health and Human Services could change these contraception-coverage-mandate regulations without a court order, couldn’t it?


RIENZI: HHS could, and if the president were serious about his promise at Notre Dame a few years ago to protect people of conscience, he would direct HHS to do just that. In a diverse society, the answer to this dilemma should be simple: provide an exemption from the mandate that is broad enough to cover the range of institutions with conscientious objections to it. The very essence of a pluralistic society is that we should allow for differences of opinion and practice, not steamroll people into doing what the government thinks is best.

Unfortunately, although HHS could change this regulation on its own, it is unlikely to do so without a court order. The regulation’s existing “religious employer” exemption is the flimsiest protection for religious conviction known in federal law. It would deny protection to a soup kitchen in a Catholic church because it gives soup to all poor people, instead of to just Catholics. That’s not a view of religious freedom that is good for anyone. And it is certainly not the view of religious freedom our Founders fought and died for.

LOPEZ: What’s wrong with contraception being considered a basic medical right?

RIENZI: Whether it is a good idea to make contraception widely available as a generally policy matter is not a question before the court in this lawsuit. And Belmont Abbey College doesn’t argue in this lawsuit that contraception shouldn’t be a basic medical right. Instead, the college stands for what should be a totally uncontroversial point: that if the government wants to make contraception widely and freely available, it has to do so through willing participants. It cannot run roughshod over the millions of Americans who are barred by their religious convictions from purchasing and dispensing these drugs.

LOPEZ: Isn’t this lawsuit just an extension of the right-wing “war on birth control,” an insult to women in a free society?


RIENZI: No. The only war being waged here is the one Secretary Sebelius declared when rallying the troops at a NARAL fundraiser last month. Sebelius’s war is her own effort to use a government agency to force conformity — everyone has to jump on the contraception/abortion bandwagon or face the financial consequences.

It is not a “war on birth control” to be true to your religious convictions that prohibit you from using, or facilitating others’ use of, contraceptives, sterilization, or abortions, as an offense against human life. The monks of Belmont Abbey College aren’t raiding local pharmacies to steal the pill off the shelves. They are simply asking not to be dragged to the pharmacies to pay for them.

Also, it is important to note that the monks didn’t ask for this lawsuit — the administration gave them no choice. They either have to violate their religious convictions by providing these drugs or they have to kick their students and employees off of health insurance and pay steep fines. So HHS brought the war to the monks, not the other way around.

LOPEZ: Does this just scratch the surface of conscience threats you see on the horizon? Even with Obamacare?


RIENZI: Absolutely. Particularly in the medical and insurance fields, people will be forced to choose between violating their religious convictions and violating the law. That is a terrible position for the government to put someone in. Imagine you are a 50-year-old pharmacist and your governor says that you have to violate your religious convictions and sell ella or lose your license and the only profession you’ve ever known? Or imagine you are a nurse and the hospital says you must assist in late-term abortions or lose your job?

Particularly in a bad economy, these predicaments impose powerful government coercion on people to give up their religious convictions as the price of keeping their jobs or participating equally in society. Fortunately, the Constitution and state and federal laws make it illegal to put people in these positions.

LOPEZ: Is the Supreme Court taking up an Obamacare challenge a gamechanger for institutions like Belmont Abbey?


RIENZI: Maybe, maybe not. Strictly speaking, Belmont Abbey’s lawsuit does not concern the individual mandate, which is the focus of the case going to the Supreme Court. So unless the Court decides both that the individual mandate is unconstitutional and that the individual mandate provision cannot be separated from the rest of the law such that the law in its entirety must be struck down, the decision probably won’t solve Belmont Abbey’s problem.

LOPEZ: How much of a problem has it been to convince people that President Obama’s signature legislation is a threat to Catholics and others with so many prominent Catholics in the administration, including as secretary of Health and Human Services?


RIENZI: I think many people, myself included, very much wanted to believe that President Obama was sincere in his comments about reaching common ground with Catholics and people of faith generally.

But the president’s actions have not matched his high-minded words. It is particularly troubling to see the administration’s failure to accommodate religious individuals and organizations in the healthcare law. As anyone who watched the legislative process knows, the healthcare law is filled with exceptions and favors to special interest groups. Huge well-connected companies and organizations, like McDonald’s and teachers’ unions, got waivers from its provisions for commercial or political reasons.

It would be so easy for the administration to exempt religious individuals and organizations from the mandate, and it would certainly help President Obama with religious voters. Yet the administration has stubbornly refused to treat religious voters as important enough to merit protection.

That said, it is often hard for people to realize the gravity of the threat to religious individuals and organizations unless and until it is rapping at their door. I know the Catholic bishops have been trying to get this message across to the Catholic faithful recently (for example in the Maryland Bishops’ statement on religious liberty here) and I think those words have added strength when people see institutions like Belmont Abbey College step forward and show leadership on this issue.

LOPEZ: Speaking of scratching the surface, why is Belmont Abbey being investigated by the Equal Employment Opportunity Commission? Where does that stand?


RIENZI: Several years ago, Belmont Abbey College realized that its insurance plans had been covering contraception and abortion. As soon as this was brought to their attention, the college changed its plans, so that the plans would not violate the college’s religious teachings by providing these services. The EEOC has since been investigating the monks for being true to their convictions. EEOC’s current theory is that it is gender discrimination not to pay for contraception and abortion. While the EEOC investigation is still technically open, it has gone nowhere recently.

LOPEZ: Can the government actually compel an institution like Belmont Abbey to provide or pay for abortions?

RIENZI: Not without violating the Constitution and federal law. In fact, one of the few things on which there was widespread national agreement in the years following Roe v. Wade was that Roewould not be used to force unwilling people or institutions to participate in abortions. Even one of the most liberal justices on the Supreme Court at the time — Justice Blackmun — deemed conscience laws to be “appropriate protections.”

The government should realize that such protections for religious conviction are good for everyone. Religious freedom is the first freedom mentioned in our Bill of Rights for a reason — it is foundational to our other freedoms and an inherent human right.

LOPEZ: What was President Obama’s “Darn Tootin’!” all about and how did you receive it?

RIENZI: The president was bragging to the crowd about the contraceptive mandate when he made his “Darn Tootin’!” comment. He might have thought it was a funny response, and it did get him some cheers. But the mandate is no laughing matter to Belmont Abbey, or to the millions of Americans whose religious convictions forbid them from distributing drugs that cause abortions.

LOPEZ: How did you get involved in this all?

RIENZI: The Becket Fund for Religious Liberty represented Belmont Abbey College in its EEOC matter several years ago. When the government issued the mandate in August, the Becket Fund and Belmont Abbey knew they could not sit by while the government steamrolled religious liberty.

As a law professor at Catholic University, I’ve been litigating religious-freedom cases for a long time. I joined the Becket Fund specifically to work on this particular lawsuit. It is very hard for a small college like Belmont Abbey to step forward and sue the government to protect its rights. But it is vital for the cause of religious liberty that groups like Belmont Abbey rise to the challenge. The Becket Fund exists to make sure that when people are courageous enough to stand up for their religious freedom, there are knowledgeable and talented lawyers available to litigate the case. The Becket Fund believes in protecting religious freedom for everyone, regardless of their faith. It is a joy to help with that mission. And while I’d like to see the Becket Fund put itself out of business, I fear there will be plenty of work to do on this front for years to come.


Posted on National Review Online.

Read more about the case here.