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HHS Mandate raises the stakes

| Sunday, March 2, 2014

Notre Dame continues to be embroiled in federal litigation challenging the Obama administration’s HHS Mandate. The mandate compels the provision of free contraception (including abortifacients) and sterilization services to female employees.

Private employers and their insurers subject to the mandate must not only provide access to contraception and sterilization services, but also must provide them at no cost to employees regardless of what they are required to contribute for other healthcare services.
Last Friday, writing for a divided federal appellate court, Judge Richard Posner denied Notre Dame’s most recent appeal for relief from the mandate. His opinion was no surprise.

Earlier this month, Judge Posner badgered Notre Dame’s attorney on oral argument, demanding at one point to know whether contraception is viewed by the Catholic Church as a mortal sin or as a venial sin. When our religious liberty rights blow with the winds of executive power or depend upon the judiciary’s prodding and parsing of theological considerations, we are entering a brave new world of hostility to religiously inspired moral values.

The HHS Mandate is a serious threat to religious freedom precisely because the Catholic Church’s teachings concerning sexual morality are directly related to our understanding of the relationship between God and man. They flow from the Church’s conviction regarding the sanctity of each human life.

Informed by sacred scripture and authoritative teaching, the Church proclaims that each and every human person is uniquely created in the image and likeness of God. Catholic philosopher Alice Von Hildebrandt sums this up with elegant precision: “Animals reproduce, humans procreate.” That is, man and woman cooperate together and with God in the co-creation of a unique human being, an immortal human soul.

Because we believe that procreation is such an extraordinary gift, literally a sharing of God’s creative power, we Catholics view complex questions concerning family planning, pre-marital sex, reproductive technologies, abortion and a host of other issues relating to sexual morality through the lens of our faith.

Francis Cardinal George, archbishop of Chicago and past president of the United States Conference of Catholic Bishops, speaks often of the grave danger posed by the HHS Mandate. While recognizing that anti-Catholicism has a long history in the United States, George is also quick to note that respect for moral pluralism has been central to the American understanding of religious liberty.
Reasonable people often differ in their conclusions relating to moral issues. Our government has consistently respected such pluralism when it comes to religiously-held moral imperatives. President Obama’s HHS Mandate stands in stark opposition to this legacy of respect for moral pluralism and religious liberty.

As Catholics, we do not demand nor expect that our fellow citizens will embrace our faith and its teachings. In fact, we acknowledge that Catholicism can be difficult to live out, even for many Catholics, and especially in our hyper-sexualized culture.

But we do expect government to respect our right to live and work guided by our faith-based moral values.

Has it really come to this — that executive branch discretion can be used to force private parties, including believing Catholics, to underwrite a value-free notion of sexual liberty? And that this radical assertion of administrative power might trump a history of respect for religiously based moral norms?

The stakes in Notre Dame’s ongoing HHS Mandate litigation could hardly be higher for those who hold religious liberty as one of our most treasured constitutional rights.

John Madigan is a graduate of Notre Dame and formerly served as General Counsel at the Fellowship of Catholic University Students, another HHS Mandate litigant. He can be reached at jepmadigan@yahoo.com

The views expressed in this column are those of the author and not necessarily those of The Observer.

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  • Kathryn

    “Private employers and their insurers subject to the mandate must not only provide access to contraception and sterilization services, but also must provide them at no cost to employees regardless of what they are required to contribute for other healthcare services.”

    This is extremely misleading as Notre Dame isn’t required to provide access to contraception services (and no, the HHS mandate does not cover abortifacients, unless you want to start rejected medical definitions)–Notre Dame is required to fill out a piece of paper that says that they object to providing access to contraception so that they will be exempt from the law. Yes, once Notre Dame is exempted, a third-party insurer will be required to provide access to contraceptives directly to Notre Dame’s insured (so as to keep Notre Dame out of it), but since that insurance company hasn’t objected to this scheme, it seems a bit odd to imply that Notre Dame or its insurer is being forced to provide contraceptives.

    • Read

      Via Andrew Sullivan’s blog, Ramesh Ponnuru dismantles this argument. Notre Dame is clearly not exempt. Exempt entities don’t have to fill out a piece of paper enabling contraceptive coverage over their objection.


      • none

        They’re objecting to signing something saying they can’t do something so someone else has to?

        Doesn’t that seem just…. profoundly petty? We’re all connected. You cannot insulate yourself from other people’s actions to the extent that Notre Dame wants to. It’s just impractical and wasteful.

        • Read

          How is it petty to stand by your convictions? Isn’t it petty of the federal government to try and force a group of nuns to purchase birth control and violate their consciences?

          • none

            But that’s the whole point. They aren’t being forced to purchase anything. If you engage in commerce at any level in this country, you will on some level support something you don’t agree with.

            And no, it is not petty to regulate health insurance so that women have access to the means by which they can control their reproductive health.

        • xuinkrbin

          No, They are objecting to providing explicit orders to Someone Else to do what Their faith prohibits Them from doing, which said form does. Their faith prohibits Them from giving such orders to Another. In Their Minds, an analogy would be this: Presume You are a Crime Boss; You give orders to an Underling to kill Someone; They kill that Person; You are just as guilty as if You did it Yourself because You give the order to do so.

          • none

            Except in one case we’re talking about murder and in another we’re talking about birth control.

        • Kathryn

          Even if it’s not petty, it’s complete and total nonsense. The university’s argument is that they cannot sign the form because by participating in any action which would enable women in our community to access contraceptives through the government’s healthcare scheme they may give the *impression* that they condone contraceptive use, and thereby cause scandal. The whole purpose of the form is to announce that you have a religious objection to providing contraceptives, so how they could cause scandal this way is beyond reason.

      • NDaniels

        When the Obama Administration argued in Hosanna-Tabor that Cheryl Perich was not a minister and therefore the ministerial exception did not apply, rather than argue that Cheryl Perich was a person of Faith who the Church had selected to minister to the students of Hosanna-Tabor, who had been unjustly let go due to a disability, it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, the Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, but this Administrative Agency has placed an obscene fine of 36,500 per employee for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide Health Insurance is only 2,000 dollars per employee, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.

    • NDaniels

      One can easily construe the government’s argument to go like this:

      Notre Dame: We do not want to promote promiscuity and thus the sexual objectification of the human person, because we respect the inherent Dignity of the human person.

      Government: No problem, we will provide contraception to your students and employees free of charge as part of your Health Insurance coverage. It won’t cost you anything.

  • xuinkrbin

    Posner is not as conservative as You suggest. Posner has written several opinions sympathetic to abortion rights, including a decision that held that “partial-birth abortion” was constitutionally protected in some circumstances. Posner opposes the US “War on Drugs” and called it “quixotic”. In a 2003 CNBC interview he discussed the difficulty of enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that “I don’t think that we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana.”

    Also, no Objector has argued in any brief in these cases in favor of “limiting the sexual agency of Women”.

    • none

      None of what you cite brands him as not being conservative. He just happens to be a sensible one.

      And right, no one will say out loud that it’s about limiting the sexual agency of women. But that is what it is about.

  • Shawn

    That’s so great that you don’t demand that your fellow citizens embrace your faith and it’s teaching. I will count on your vote for gay marriage then, since you would never want to impose your archaic teachings on others. I will also presume that you won’t inflict your faith-based views on abortion on others too.

    Oh wait. Your probably a hypocrite.

    • Kate

      Your probably illiterate.

      • Kathryn


        • Kate

          “Your probably a hypocrite.”

          . . . Wooosh . . .