Supreme Court ruling promises religious fights for the forseeable future

Washington, USA - The Supreme Court’s decision Thursday to uphold the core of President Obama’s health care law guaranteed that the law and its potential impact on abortions and contraception will remain a powerfully divisive issue for religious groups for the forseeable future. Attorneys already challenging the law on behalf of mostly Catholic institutions said the decision opened the door for more future litigation.

The decision immediately electrified religious progressives, including many Mainline Protestant and Reform Jewish leaders, who believe expanding coverage meets a core priority of Scripture to heal the sick.

“In designing a health care system that was intended to include almost all of us and work better for everyone, we believed we were responding to a moral imperative to collectively care for one another. We saw the passage of health care reform as a statement about reclaiming the moral compass of our country,” read a statement from two dozen national religious movements, including the United Methodist Church, the Reform Jewish movement and the Islamic Society of North America.

Some who have worked on the issue of health care reform for years were in tears as they spoke to reporters.

But others, primarily religious and political conservatives, said more litigation and activism against the law was essential to protect religious freedom.

Some opposition was characterized — as on the progressive side — in more political terms, about the reach of government, but mostly criticism was focused on a White House-authored mandate requiring most employers to offer contraception coverage to employees.

The U.S. Catholic bishops had a measured response, saying they have long championed the general concept of universal health coverage but believe the law expands federal funding for abortion and doesn’t sufficiently include immigrants.

Conservative faith groups promised a fight.

“Obamacare treats American citizens like subjects. This administration has used health care law to become a dictator of conscience,” the evangelical-founded legal advocacy group The Alliance Defense Fund wrote in a statement. The law “holds your health care hostage and offers no real choice. Either comply and abandon your religious freedom and conscience, or resist and be fined for your faith. All current ADF legal challenges to the Obama administration’s abortion pill mandate will proceed.”


The ruling has big implications for American Catholics, whose bishops have called the health care law a major violation of religious liberty because of the contraception mandate. The bishops have made opposition to the mandate and the White House’s view of religious liberty the centerpiece of one of their biggest campaigns in a generation. Dioceses across the country are in the midst of a two-week campaign of rallies, mega-Masses and concerts called Fortnight for Freedom that ends July 4.

One front of their campaign has been legal, and Thursday’s ruling means 23 separate lawsuits will continue against the Obama administration. The suits involve 56 individual plaintiffs, mostly Catholics, including bishops, Catholic universities and Catholic news organizations.

The U.S. Conference of Catholic Bishops on Thursday repeated concerns that the law expands federal funding for abortions and doesn’t provide enough health care access for immigrants.

“The bishops want universal health care, but this doesn’t provide it. It’s flawed and needs fixing. We saw if you’re aborting children you’re certainly not giving them universal hyealth care. That would be one idea,” said Sister Mary Ann Walsh, a spokeswoman for the bishops’ conference.

The Catholic Health Association, the country’s largest private health care provider, said it was pleased the law would remain in affect.

The association has been a lightning rod for debate recently about health care, as its president, Sister Carol Keehan, bucked the bishops when she worked with the White House to get the entire law passed and initially said she was comfortable with the mandate. A few months ago Keehan – perhaps the White House’s most prominent Catholic ally – made news when she said she was deeply concerned that the White House has not expanded the mandate to exempt more faith-based groups.

“In the coming weeks and months we will continue working closely with our members, Congress and the Administration to implement the ACA as fairly and effectively as possible,” the association said in a statement on Thursday.

Catholics close to the White House say behind-the-scenes talks have continued about expanding exemptions to the mandate, something some say is key to Obama motivating Catholic progressive voters who helped him win in 2008. Walsh, however, said talks were ”at a stalemate” and that the bishops hadn’t communicated with the White House since mid-June.

“This thing is not over for sure,” said Rick Garnett, a Notre Dame Law School professor who has advised the bishops on their religious liberty campaign.

Thursday’s ruling is a mixed bag for many Catholics, he said, because the Catholic Church has long supported the general concept of universal health care. The mandate, which was announced by the White House after the law passed, was like a “poison pill” for many Catholics because it soured the pleasure for some that health care access would be expanded.

How the continued fight about the mandate and religious liberty will impact the presidential election is hard to predict, as Catholic voters – like many – have nuanced feelings. Polling shows most Catholics don’t believe religious liberty is being threatened in America today, and that most support a broad birth control requirement, however once they are asked specifically about exempting religiously-affiliated institutions that oppose birth control, they split.


Attorneys in cases alleging religious liberty violations saw lots of fodder in Thursday’s ruling and predicted much more litigation now that the Act’s basic existence was affirmed.

“I think the court’s decision makes clear Obama is still subject to legal challenges and that the Supreme Court is willing to entertain that the HHS regulations violate the rights of religious freedom,” said Hanna Smith, senior counsel at the Becket Fund, a D.C. firm involved in some of the 23 pending lawsuits against the White House.

The lawsuits all focus on opposing a mandate announced by the Department of Health and Human Services after the law was passed.

Mark Rienzi, another Becket attorney, said in a phone conference call that the ruling today only spoke to whether Congress had the right to pass the act – not on the details of how it’s implemented.

“It seems to me the administration has won one legal challenge and there are 23 others waiting in the wings,” he said.

The attorneys honed in on two parts of Thursday’s ruling. One, from the majority opinion, said: “Even if the taxing power enables Congress to impose a tax on not obtaining health insurance, any tax must still comply with other requirements in the Constitution.”

The second, from Justice Ruth Ginsberg, said “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”


The key question now is whether the White House will expand the exemptions for any employer who objects – from a religious restaurant owner to a faith-based group that provides affordable housing, for example -- a move that religious liberty lawyers on the other side say is illegal because, they argue, it shows preference for certain religious views by exempting them from a health care policy priority.

The White House has said it is still considering the wording of the mandate, something Catholic supporters of the president hope would take the steam out of the bishops’ campaign.

But a happy middle ground didn’t appear forthcoming Thursday. Becket attorneys said ideas the White House has floated are not true exemptions, for example having a faith-based group’s health insurance company pay for the contraception itself, rather than billing the group directly.

“All they’re proposing is an accounting gimmick to shift the books around,” said Kyle Duncan, Becket’s general counsel.


Then-Rep. Bart Stupak (D-Mich.), a pro-life Catholic Democrat, played a key role in the health care negotiations when the bill moved through Congress. Stupak led a bloc of holdouts who only agreed to vote for the act after Obama promised to issue an executive order insisting there would be no public funding for abortion. That compromise was called inadequate by anti-abortion leaders.

“The right-to-life movement was, in a way, falling on me,” Stupak told Sally Quinn in a 2010 interview.

On Thursday, Stupak in a statement called on government and the health care industry to focus on “developing and implementing the programs as quickly as possible. The demand for health care is about to explode as baby boomers age.”


Polling before Thursday has shown Americans conflicted about the health care law and its moral implications.

A majority of white evangelical Protestants wanted the Supreme Court to overturn the health care law. White Mainline Protestants were more divided, with 44 percent in favor of it being overturned and 34 percent opposed. Nearly half of Catholics opposed the law being overturned while 36 percent were in favor.