WASHINGTON-Certainly the White House hoped opposition to its contraceptive mandate would fade as the months passed and as it issued "compromises" (see "Standing firm," March 17, and "No details," Feb. 10), but religious groups have not let up. Organizations have been filing lawsuits in a steady drip, so every few weeks the healthcare law's mandate comes into the news again.
Forty-three Catholic groups filed 12 lawsuits against the federal government on Monday, the largest number of coordinated actions against the contraceptive mandate so far. That Catholic leadership opposes the mandate is no secret, but the breadth of the lawsuits drew attention. Not only did the prominent Archdiocese of Washington, D.C., headed by Cardinal Donald Wuerl, file a lawsuit, but so did social arms like Catholic Charities, which has sided with the Obama administration on past issues related to the budget (cutting defense, preserving social programs).
The University of Notre Dame, which in 2009 controversially invited President Obama to receive an honorary degree and speak at commencement, also filed a lawsuit against the administration. Separately, two colleges announced in May that they would be ending their student health plans because of the mandate.
The federal government now faces 23 lawsuits in 15 states over the contraceptive mandate. Many of the plaintiffs are Catholic, but three of the plaintiffs are devout business owners. Three are evangelical groups, including colleges like Colorado Christian University. Seven states-Nebraska, South Carolina, Michigan, Texas, Florida, Ohio, and Oklahoma-have also filed suit. (The Becket Fund, representing several of the plaintiffs, has compiled a list of the lawsuits and links to the court documents.)
Lawyers for these plaintiffs told WORLD in February that they were strategizing by filing lawsuits in different districts across the country, so as not to "put all of your eggs in one basket" (see "Spread attack," by Leigh Jones, Feb. 22). But none of the suits have been filed in the states under the jurisdiction of the 9th U.S. Circuit Court of Appeals, a circuit that would most likely take the administration's side.
"Nothing is a sure thing, but the most likely way to get an issue before the Supreme Court is to have a lot of high-profile cases coming down in the different circuits with different results," said Brad Jacob, a professor at Regent University School of Law, in Virginia Beach, Va. If regional courts ruled against the contraceptive mandate, that would not change the law for the rest of the country, which is the reason for the push for it to go before the U.S. Supreme Court.
All of these plaintiffs are waiting for the Supreme Court to issue its ruling on the broader healthcare law, an opinion the justices will likely publish at the end of June. If the high court decides that the individual mandate is unconstitutional, that would make the lawsuits moot since the contraceptive mandate is part of that larger mandate.
Wheels are turning outside the courts, too, in civil society. On Thursday, prominent Catholic, Jewish, and evangelical leaders met in Washington, D.C., at the American Religious Freedom Program's conference. The conference included people like Robert George, the Catholic professor of jurisprudence at Princeton University; Hannah Smith, senior counsel at the Becket Fund; former Health and Human Services Secretary Michael Leavitt; Donald Landry of New York Presbyterian Hospital; and Timothy George, dean of Beeson Divinity School.
The contraceptive mandate came up again and again at the conference. One session was titled "Unprecedented Threats to American Religious Freedom and Rights of Conscience," while another was called "Legislative Action to Constrain Overreaching Officials."
State legislators were in the audience and taking notes as they try to carve religious exemptions in their own health insurance laws. One Arizona legislator asked about forming a network for state legislators on the issue, which organizers said was part of the design of the conference. If the mandate moves forward without delay, it goes into effect for most religious groups in August 2013.