Wednesday, March 23, 2016


As the first of the 37 plaintiffs in the U.S. Supreme Court today to have filed a lawsuit against the HHS mandate, I have just sat through the oral arguments in Zubik vs. Burwell, which consolidates my Priests for Life vs. HHS case with six others.

At issue is whether the government is unlawfully violating the religious liberty of the plaintiffs by requiring us to authorize our health insurance plans to provide for our employees coverage of abortion-inducing drugs and other services we find objectionable. More specifically, the Court tried to gauge whether the government passed the test that the Religious Freedom Restoration Act — RFRA — requires when a law substantially burdens a religious belief: The government must prove that imposing the burden is the least restrictive means of advancing a compelling government interest.

The government has argued that we have no reason to complain of a substantial burden on our religious beliefs, because they are allowing us to “opt-out” of the mandate to which we object. But the government’s own regulations describe what they are asking us to do as an alternative way to “comply” with the contraceptive mandate, (78 Fed.Reg. 39,870, 39,879, July 2, 2013). We are being asked to provide legal authorization for the specific health insurance policy we offer our employees to cover the actions we find objectionable.

The government, and the justices who today seemed inclined to agree with them, once again failed to pass the least restrictive means test today. Justice Anthony Kennedy pressed government attorneys on whether they acknowledge that we insist that the government “accommodation” make us complicit in providing these objectionable services. Justice Kennedy said if the government does acknowledge our claim, then the Court must use the analysis of whether it is the least restrictive means possible to achieving their objective.

Chief Justice John Roberts echoed the word of the petitioners that the government is “hijacking” our own health insurance plans to accomplish its goals. Justice Kennedy, whose line of questioning seemed overall favorable to us, also used the word “hijacked.”

That is hardly an “opt-out.”

The government tried again to minimize the importance of our religious beliefs by saying that even though they do not back away from the assertion that this is not a substantial burden, they claim that even if it were, the government has reason to override it. But the reason they give for that was expressed well by the chief justice when he said that the difference between respecting our beliefs or overriding them in this case comes down to “who does the paperwork?”

The government simply does not want to inconvenience women who may have to go on the exchanges to seek coverage for abortion-inducing drugs and contraceptives that their employers do not provide.

In the court today, the government failed to prove that its mandate as applied to us serves a compelling interest. As our attorneys again pointed out, convincingly, what the government has to demonstrate here is not some general “compelling interest” in providing nationwide cost-free health insurance coverage for abortion-inducing drugs and contraceptives, but rather a compelling interest to specifically require us plaintiffs to help provide it. Our own participation can hardly be a compelling interest when the same government has already exempted employers of tens of millions of Americans from the same mandate. Some of these exemptions are for non-religious reasons (for instance, the administrative convenience of allowing grandfathered insurance plans to remain without the objectionable coverage) or are rooted in automatic exemptions given to Churches, some of which do not even have objections to the mandate. Were the interest so compelling to burden our religious beliefs, the government would not allow so many exemptions to those who do not even share our objections, and yet insist on overriding ours.

In the end, it looks like this may end up to be a split 4-4 decision but it should not have to be that divided, because there is one very straightforward point. As the Supreme Court has held in multiple cases and most recently in Hobby Lobby, which dealt with the same HHS mandate, it is not the role of the courts to make any judgment whatsoever on the validity or veracity of a religious belief. If we say that signing the form under this mandate violates our religion, we as believers are the final — and only — judges of that. The courts can only look at whether the belief is sincerely held — which they do not dispute in this case — and whether the government is justified in pressuring us to violate that belief.

I am not an attorney, but I don’t need to be one in order to understand the crux of this case. My colleagues and I were in the Supreme Court today because the government is forcing us to choose between following our faith and following the law. The essence of religious freedom is that every American should be able to do both at the same time.

Father Frank Pavone is the national director of Priests for Life and president of the National Pro-Life Religious Council.

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