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Lawsuits over HHS contraception mandate, not considered in ruling, will move forward

Pictured: People for and against the administration's health care reform law demonstrate in front of the U.S. Supreme Court building in Washington, D.C., June 28. The nation's high court upheld the Patient Protection and Affordable Care Act as constitutional but placed some limits on the federal government's ability to terminate states' Medicaid funding. (CNS photo/Bob Roller)

WASHINGTON, D.C. — The U.S. Supreme Court's June 28 decision upholding the health insurance reform law makes it even more urgent for Congress to act to fix the law's "fundamental flaws" on abortion funding, conscience protection and immigrants' access to health care, the U.S. bishops said.

The Supreme Court affirmed the Patient Protection and Affordable Care Act – also known as the ACA or as Obamacare – in a split 5-4 opinion in which Chief Justice John Roberts wrote the majority opinion. The court ruled that Congress has the power to require people to purchase health insurance coverage under its constitutional power to tax.

Today's ruling does not impact ongoing litigation by Catholic Church employers, schools and dioceses over the controversial federal mandate to provide free artificial contraception, sterilization and abortion-inducing drugs.

Belmont Abbey College was the first to file a lawsuit last fall against the Health and Human Services (HHS) mandate to provide free artificial contraception coverage despite an employer's religious objections, as it would force the Benedictine college and its monastic community to fund health insurance coverage that violates Church teaching. The Catholic Church teaches that artificial contraception, sterilization and abortion are intrinsically immoral.

Belmont Abbey College's president, Dr. William Thierfelder, said today's ruling has nothing to do with the college's legal battle over the HHS mandate. Thierfelder said he "would have been happier" if the Supreme Court had struck down the ACA because that would have made moot the college's lawsuit. But, he said, "It's by no means over."

Thierfelder encouraged his fellow Catholics to "stand shoulder to shoulder," especially during the U.S. bishops' Fortnight for Freedom campaign which continues through next week, with prayer, attending Mass, and continuing to stand up for "what we know to be right."

"We're all in this together," he said.

The U.S. bishops, who are vocal opponents of the HHS mandate, said the ACA as its stands must be repaired, because it does not adequately protect religious liberty and because it does not sufficiently help immigrants and their families. They reiterated the fact that the U.S. Church has advocated for universal health care for nearly a century, but they added that the ACA is not without its problems.

Sister Carol Keehan, president and CEO of the Catholic Health Association, said she was pleased that the health care law "has been found constitutional and will remain in effect." The Daughter of Charity noted that CHA had submitted friend-of-the-court briefs urging the court to find in favor of the individual mandate and the Medicaid expansion.

However, CHA agrees with the bishops in urging the government to expand its definition of religious employers who can be exempted from the HHS mandate.

Two women opposed to the administration's health care reform law demonstrate in front of the U.S. Supreme Court building in Washington June 28. The nation's high court upheld the Patient Protection and Affordable Care Act as constitutional but placed som e limits on the federal government's ability to terminate states' Medicaid funding. (CNS photo/Bob Roller) In the Supreme Court of the United States (SCOTUS) live blog June 28, sponsored by Bloomberg Law, court reporters summed up the ruling, saying, "Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial – feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form."

But the five justices in the majority disagreed over why the individual mandate was OK.

The blog said, "The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn't comply with the new requirements, rather than all of their funding."

The court placed some limits on the federal government's ability to terminate states' Medicaid funding, saying in the majority opinion that the federal government could not force states to participate in the expansion of Medicaid or risk losing all of their existing funding. The court did not consider the constitutionality of other components of the ACA, including the HHS mandate.

Justice Anthony Kennedy issued the minority dissenting opinion, saying in the opening of his statement, "In our view, the entire Act before us is invalid in its entirety."

Read the full opinion:
Supreme Court's ACA ruling

So, does today's opinion affect the ongoing litigation over the HHS contraception mandate?

No.

Today's ruling specifically focused on the constitutionality of the individual mandate to carry health insurance, as well as Medicaid funding, not other parts of the ACA.

The Becket Fund for Religious Liberty – a non-profit law firm that is representing four clients including Belmont Abbey College in opposing the federal Health and Human Services (HHS) rule, part of the ACA, requiring nearly all employers to provide free coverage for artificial contraception, sterilization and abortion-inducing drugs – says the legal fight will continue.

The contraception mandate is being challenged nationwide in 23 lawsuits filed in U.S. District Courts, by various religious employers, churches and schools that say the HHS mandate violates their religious freedom. Requiring religious employers to provide free artificial birth control is unconstitutional, they maintain, because the government action would force them to go against their religious beliefs and violate conscience protections. A narrow exemption by the HHS for religious employers allows only those who hire and serve only people of their own faith could be considered exempt from the mandate. The HHS mandate is set to go into effect in August, although a "compromise" issued by President Barack Obama earlier this year would give religious employers another year to figure out how to comply with the mandate.

The Catholic Church teaches that artificial contraception, sterilization and abortion are immoral. The effect of the HHS contraception mandate means that Catholic employers, schools and dioceses would be forced to pay for an inherent evil, pay heavy fines for noncompliance with the mandate, or cease offering any health insurance to their employees and students.

In a statement issued today, Hannah Smith, senior counsel at the Becket Fund, said, "The court’s opinion today did not decide the issues in our cases. We are challenging the Health and Human Services (HHS) mandate on religious liberty grounds which are not part of today’s decision. We will move forward seeking vindication of our client’s First Amendment rights."

The statement continued, "The Court’s decision leaves untouched the controversial HHS mandate, a regulation based on other provisions of the Affordable Care Act that the Court was not asked to review in this case. The mandate compels employers to provide drugs and services in their employee health care plans regardless of religious objections to those services. Employers who fail to comply face staggering financial penalties."

Smith added in the statement, “The Becket Fund’s religious liberty lawsuits against the unconstitutional HHS mandate will continue. Never in history has there been a mandate forcing individuals to violate their deeply held religious beliefs or pay a severe fine, a fine which could force many homeless shelters, charities, and religious institutions to shut their doors.” 

What did the Catholic bishops say?

In a statement released June 28, the U.S. Conference of Catholic Bishops stated that the ACA must be "repaired" if it is to accomplish the goal of "life-affirming health care for all," as it does not protect freedom of conscience regarding artificial contraception coverage, and it leaves immigrants and their families "worse off" than before.

The statement read: "For nearly a century, the Catholic bishops of the United States have been and continue to be consistent advocates for comprehensive health care reform to ensure access to life-affirming health care for all, especially the poorest and the most vulnerable. Although the United States Conference of Catholic Bishops (USCCB) did not participate in these cases and took no position on the specific questions presented to the Court, USCCB's position on health care reform generally and on ACA particularly is a matter of public record. The bishops ultimately opposed final passage of ACA for several reasons.

"First, ACA allows use of federal funds to pay for elective abortions and for plans that cover such abortions, contradicting longstanding federal policy. The risk we identified in this area has already materialized, particularly in the initial approval by the Department of Health and Human Services (HHS) of 'high risk' insurance pools that would have covered abortion.

"Second, the Act fails to include necessary language to provide essential conscience protection, both within and beyond the abortion context. We have provided extensive analyses of ACA's defects with respect to both abortion and conscience. The lack of statutory conscience protections applicable to ACA's new mandates has been illustrated in dramatic fashion by HHS's "preventive services" mandate, which forces religious and other employers to cover sterilization and contraception, including abortifacient drugs.

"Third, ACA fails to treat immigrant workers and their families fairly. ACA leaves them worse off by not allowing them to purchase health coverage in the new exchanges created under the law, even if they use their own money. This undermines the Act's stated goal of promoting access to basic life-affirming health care for everyone, especially for those most in need.

"Following enactment of ACA, the U.S. Conference of Catholic Bishops (USCCB) has not joined in efforts to repeal the law in its entirety, and we do not do so today. The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws described above. We therefore continue to urge Congress to pass, and the Administration to sign, legislation to fix those flaws."

— Catholic News Herald, Catholic News Service contributed to this report. 

More HHS mandate info

Read more about the health care mandate and the full timeline of events in our religious liberty section.