Archbishop Thomas Wenski of Miami noted when the Obama administration crafted the Affordable Care Act with Congress, it carved out exceptions.

There were exceptions for Amish, Muslims, Seventh-Day Adventists, even Scientologists. Some religions believe insurance is akin to gambling, and thus the law will not apply to them.

But Wenski wonders why there was no exception for Roman Catholics when it came to their pro-life beliefs.

The archdiocese joined nearly 50 others around the country last month when it sued the Department of Health and Human Services, the Labor Department and the Treasury Department over a new policy requiring employers — including religious organizations — to provide contraceptive coverage as part of their health insurance.

The church’s legal claim is as ancient as the country itself: the law violates the separation of church and state. The Oct. 16 lawsuit alleges numerous transgressions against the First Amendment, from the practice of religion to free speech.

“It’s a violation of our religious freedom if we have to provide these products against our beliefs because they are telling us to do so,” Wenski told the Daily Business Review.

While these issues often seem at first glance to be black and white, they become murkier as one drills down into the constitutional and other legal questions posed when a religious group is the employer.

Miami constitutional attorney Marcia Silvers said she expects the issue to be appealed.

“It’s a thorny and complicated First Amendment issue that may require resolution by the U.S. Supreme Court where, interestingly enough, six of the nine justice are Roman Catholics,” she said.

Donald Jones, a law professor at the University of Miami in Coral Gables and a constitutional expert, also sees this issue winding its way to the high court.

“This is a tremendous battle,” Jones said. “This is a major controversy because it’s always difficult to draw the line between the public and private.”

The Oct. 19 lawsuit was filed by the archdiocese in the wake of similar suits filed across the country last May with the help of attorneys from Jones Day in Atlanta. The law firm is handling the cases pro bono. The attorneys had no comment under archdiocesan policy.

“This lawsuit is an attempt to vindicate one of America’s most fundamental freedoms: the freedom to practice one’s religion without governmental interference,” the archdiocese’s lawsuit asserts. The federal government “is now attempting to force plaintiffs — all Catholic entities — to provide, pay for and/or facilitate access to abortion-inducing drugs, sterilization and contraception in violation of their sincerely held religious beliefs.”

Summonses have been issued to federal department heads in the case assigned to U.S. District Judge Donald Graham, but no Justice Department attorneys have been assigned, and no federal response has been filed. An HHS official said the department doesn’t comment on pending litigation.
Faith-Based Objections

Interestingly, the mandate is not part of the Affordable Care Act but a policy change by HHS on how to implement it. For Wenski, this issue is easily resolved.

“This basically is some bureaucrat with HHS who came up with this language that is causing all this grief,” he said. “All you need is for the government to rescind this mandate.”

HHS underscored the difference between the public and private hats of the churches in January when it ruled parishes and houses of worship are exempt from the requirement, but other religiously affiliated employers, like hospitals and universities, would have to pay for contraceptive coverage.

The Obama administration tried to ease faith-based objections by saying the mandate will be on insurance companies to provide the contraceptives, not religious groups.

Wenski said this so-called “compromise” was announced without inviting church officials to table. As a result, it missed a crucial element: many dioceses are self-insured.

The archdiocese encompassing Miami-Dade, Broward and Monroe counties employs nearly 6,000 people, running hospitals, charities, nursing homes, schools and churches.

Jones, while sympathizing with the church’s position, believes government attorneys will argue the church is like any other employer under the Affordable Care Act. He said carving out an exception for one religious employer opens the door to others arguing for exemptions from other federal laws and policies, such as the Title VII ban on employment discrimination.

“It’s always difficult to determine between two values: freedom of conscience and the other idea the government must always act with a secular purpose. Those two things are difficult to disentangle,” Jones said.

Unnecessary Complication

He disagreed with Wenski on his interpretation of religious exceptions in Obamacare.

“That’s a separate question,” Jones said. “Those are people operating as individuals. It lets them out of the requirement to take out insurance for health care. The key issues here have to do with distinguishing the private and public.”

Wenski said this problem was unnecessarily created by the Obama administration. Notwithstanding the refusal of House Republicans to hear testimony on the issue from women’s rights advocate Sandra Fluke, birth control was not an central issue, he said.

“In the whole debate in health care reform, it was about pre-exisiting conditions. We heard about catastrophic illness,” the archbishop said. “There wasn’t a hue and cry that we need to cover birth control.”

And Wenski said contraceptives are available through other means for diocesan employees.

“Contraceptives are not hard to find in our society. You can get them at the corner gas station, and they are not that expensive,” he said. “You can go to the health department and get them for free or $10 a month. For Catholic institutions not providing birth control, it’s not creating a hardship for anybody.”

Silvers said morning-after pills can be pricey.

The archdiocese and others like it around the country will have a “steep hill” to climb to be successful, she predicted. Insistence on religious rights alone not be sufficient to prevail because the government isn’t telling churches to start advocating birth control.

“Their religious beliefs are not being affected, so it’s not really infringing on the free exercise of religion directly,” she said.

The archdiocese’s lawsuit insists the First Amendment protects both people and organizations from compelled speech. “Expenditures are a form of speech protected by the First Amendment,” the complaint stated.

Wenski said he wants the public to know the church is not waging a war on contraception.

“Our argument is not about contraceptive services or the abortion services,” Wenski said. “Our argument is about religious freedom. The First Amendment says the state cannot get involved in how we practice our religion. We feel this is a violation of separation of church and state.”