The National Catholic Review

In the United States, lawsuits are a way of communication. Usually, they communicate that the side that filed the lawsuit believes that the side they filed the lawsuit against is not listening to them, is not respecting their rights, is not giving them their due. Lawsuits are last resorts, or at least they should be. Before a lawsuit gets filed, a lot of talking ought to go on between the parties. There is a simple reason for this, one I teach my students in Legal Process every day. When you walk into a courtroom, you are taking quite a chance. What you think is certain may not be certain, especially because there will be another side there trying to convince the judge that what you think is so is not so. So before you go to court, you should spend a lot of time talking to the opposition, and they should spend a lot of time talking to you, to make sure that what seems to be an impasse really is an impasse.

While I think this is good advice, I can't claim it's original. The Lord did advise us, "When you are on the way to court with your adversary, settle your differences quickly. Otherwise, your accuser may hand you over to the judge, who will hand you over to an officer, and you will be thrown into prison." (Matt. 5:24) And even He may have been thinking of Proverbs: "Do not go hastily to court, for what will you do in the end if your neighbor puts you to shame?" (25:8)

Nonetheless, this week 43 different Catholic organizations, signaling an impasse with the federal government, filed lawsuits against the HHS regulations that implement the Affordable Care Act. They did so flying the flag of religious liberty and their First Amendment rights.

Excuse me if I think that they were too quick to run to the courts, too quick to give up on the good will of the administration in trying to work out a solution here. HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?

As I understand their position, they have two objections: (1) even though they are not paying for these services under the new HHS regs, the insurance companies who take their premium dollars are; and (2) they do not want to be involved in the provision of healthcare services to their employees which they deem immoral, such as the provision of contraceptive medicine, some drugs that might be abortifacients, and sterilization surgery.

On the first, the argument seems to be that these Catholic organizations will, through the governmentally required health care insurance premiums that they pay for their employees, be themselves somehow paying for these morally objectionable acts. Can we stop right there? I am not a moral theologian, but I know a little bit about cause and effect. What moral difference is there between an employer paying an employee a salary that the employee then uses to buy condoms, or birth control pills or pay for a vasectomy, and the employer paying for an insurance policy that does the same thing? In both cases they are the employers’ dollars. In both cases they have been paid to or on behalf of the employee. In both cases, the employee, not the employer, is deciding how to use them. So the first argument is really only a version of the second: these services should not be there for people to use. They are immoral.

And they well may be; certainly an aboritfacient is (if that’s what the HHS specified drugs are - it’s not clear scientifically whether the drugs involved have a contraceptive rather than an abortion-inducing effect). The vast majority of American Catholics would not consider the use of contraceptives immoral, however, and as for vasectomies and tubal ligations, our church has long considered them sinful, but also forgivable, acts.

Despite the First Amendment protestations of the plaintiffs, if they are really litigating about that second point, that these “immoral” drugs and procedures do not belong in the Affordable Care Act, then what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control. Some bishops have begun to question this strategy already. Maybe they think that making the church out to be too interested in control is no way to win souls, or maybe they just wanted to talk a little bit longer with the other side before they headed to the courthouse, as the Lord advised.

Nicholas P. Cafardi

 

Comments

Joshua DeCuir | 5/23/2012 - 4:05pm
Mr. Fuego, with all due respect, I find your response to be a series of ad hominems. First of all, the comment was from Doug Kmiec - a SUPPORTER of the President's.  This is what he says:

"The noise of opposition could not be hidden from the president any longer, and the president reacted by shifting the obligation of the mandate away from employers to insurers. A good start, followed by nothing - no follow-through, and in particular, with respect to his honorary alma mater, no help whatsoever, since religious entities that self-insure, like Notre Dame, would still be coerced to abandon its religious teaching."

I'm not exactly sure what website "hostile to the President" you are talking about, and accusing me of pulling quote from, but that quote is from National Catholic Reporter. 

Further, I did not deny that the President offered an "accomodation."  But many reasonable, well-informed, smart people have read that accomodation and have concluded that it doesn't change all that much.  I understand - and respect - that you don't agree with their reading, but that doesn't mean that those of us who agree with them are more interested in attacking that "learning."  And since you don't know anything about me or my background, I don't understand on what basis you can accuse me of not "learning" about the mandate.  REasonable people can disagree.

Moreover, people can look at different actions by this President, including his Administration's argument in Hosanna-Tabor, and conclude, as people like Michael Sean Winters have, that this Administration has a very troubled pattern with respect to religious liberty.  Again, reasonable people can disagree on that point, but I don't understand what you hope to gain from insulting and casting aspersions on others who have different views. 
Joshua DeCuir | 5/23/2012 - 3:50pm
"Talking more than one news cycle and you lose leverage... was  Judas' advise"

Oh give me a break.  did you even read the post: these issues have been simmering for some time.  I think both sides in this debate need to do some healthy self-censoring of their rhetoric.

But it is nice to know that you think people who have a different opinion than you are just a bunch of Judas'.  that's really open-minded and charitable, I must say.
Rick Fueyo | 5/23/2012 - 3:47pm
If you actually follow the debate, you would know that the Administration has already offered one accommodation, in that it has already issued a new rule having the insurer offer contraception rather than the employer.  There’s a reasonable argument that that is not enough given the self-insurance issue.   But it’s false and misleading to suggest that the “Administration has not followed through with its initial statements regarding compromise”.  I realize that you are attempting to quote others instead of learning about the issues on your own, but what you state is false.
 
Also, I don't know about the oral arguments regarding Hosanna-Tabor and take nothing from websites hostile to the president on faith, as they are usually dishonest. But I do know that many of the same websites, repeated by others here, have misrepresented the holding of that decision. If the holding of that decision is applied to these facts, the lawsuits have zero chance of success. The holding of that decision was solely based on the fact that the employee at issue was considered a minister that had to represent and express adherence to the precepts of the faith. Those facts have no applicability to this issue, but that has not stopped those who seek to falsely characterize the Administration is hostile to “religion” from trying to make their point through falsehood.  Also, even considering the result that the administration lost in nine to nothing vote says very little unless you understand how the office of the Solicitor General is setup, with an obligation to defend the agency decisions within certain parameters that would be far beyond the discussion here. It's possible they took an indefensible position, but I'm certain that neither one of us have any factual basis to make that determination. So your characterization that decision as "embarrassing" has zero factual basis, unless you have withheld it so far.
 
The administration may not "solve the problem" to the satisfaction of those like Doerfinger, but not because they are being unreasonable. The "Taco Bell" argument is ludicrous. That is a political argument, not a moral one, in the “Ad Majorem GOP Gloriam” line. 
ed gleason | 5/23/2012 - 3:38pm
Josh disagrees with ""talk a bit longer."
He thinks Jesus really meant to say 'talk only one news cycle.'
Talking more than one news cycle and you lose leverage... was  Judas' advise 
Joshua DeCuir | 5/23/2012 - 3:03pm
I'm confused as to what exactly Prof. Cafardi thinks will be gained from continuing to "talk a bit longer."  Given his public political support for Pres. Obama, I understand his discomfort.  But another prominent Obama endorser in '08, Doug Kmiec, has stated on NCR that the Administration (if not the President) have proven themselves unwilling to listen as much they have talked, and has said the Administration has not followed through with its initial statements regarding compromise.  That is a telling statement from someone who recently served in teh Obama Administration, and is obviously a supporter of his.  When that is added to the pattern of troubling actions by the administration in this area over the past few months - including the embarrassing 9-0 loss in the Supreme Court in the Hosanna-Tabor case (during which oral argument even the President'w own former solicitor general, now Justice, Kagan described the Administration's arguments as "astonishing"), I find it hard to believe that the President's supporters are content to simple say "trust the Administration to solve the problem."  Moreover, when you begin to get people like Kmiec and Fr. Jenkins saying "enough is enough" shouldn't that make you a little less willing to see partisanship as the sole motivator of those on the other side?
ed gleason | 5/23/2012 - 1:55pm
Professor Cafardi is right on with his advice and analysis. Would that the USCCB have him as counsel instead of the lightweight attorney who wants Catholic Taco Bells [who don't offer coverage anyway] exempt from HHS mandate. Cdl Dolan, as head of USCCB is totally responsible for that attorney. Can't wait till a judge asks the USCCB guy if Taco Bell is sitting at the Church's plaintiff  table. 
The abuse cover up shamed Catholics... this fiasco makes us a laughing stock.
Therefore we have taken Charles De Gaulle's stance.  When he saw the French hierarchy had  collaborated with Vichy and Nazis,  he went  to a tiny village church for the Eucharist and had nothing to do with the hierarchy for the rest of his life and insisted to be buried in the tiny church courtyard and explicitly writing/saying no to a  Notre Dame service with "them' 
Mary Nolan | 5/23/2012 - 1:38pm
Further suggested reading: "A Cherished Accommodation" by Nicholas P.Cafardi in the June 1st Commonweal edition.
I deeply love my Catholic church/faith and will continue to practice and serve my faith.  I am, however also deeply saddend by some of the Cardinals and Bishops whose voices are loudly heard today.  I am ever grateful for the true shepherds who also carefully guide and care for us...perhaps too quietly.
Richard Garnett | 5/23/2012 - 1:06pm
Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."  With all due respect, this charge misses the mark.  These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way - besides making objecting religious employers bear the cost - of subsidizing contraceptives for women who work at such institutions.  The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes:  "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?"  But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.  As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed.  It is entirely reasonable for these institutions - who are subject to costly obligations *now* to prepare to comply with the current mandate - to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.
David Pasinski | 5/23/2012 - 12:43pm
I always appreciate Professor Cafardi's analysis and believe that this point is crucial in recognizing that the money paid for the health insurance is an indirect benefit that is part of the contracted benefit package of the employee and that to deny a portion that breaks a contract with the employee's own expected work package- unless this is explained ahead of employmnet which would seem to make it legal (if not just)for an employer to deny. Is that right? The "control/liberty" distinction seems fundamental.

Also, compare Maureen Dowd's quoting fromthe completely distorted Archdiocese of Washington's analysis, cited by Cardinal Dolan, of how this is an attack on religious liberty.

The quality of analyses from  ithe Archdiocese and nicholas Cafardi is so incredibly different.
Rick Fueyo | 5/23/2012 - 12:34pm
"While I think this is good advice, I can't claim it's original. The Lord did advise us, "When you are on the way to court with your adversary, settle your differences quickly. Otherwise, your accuser may hand you over to the judge, who will hand you over to an officer, and you will be thrown into prison." (Matt. 5:24)   And even He may have been thinking of Proverbs: "Do not go hastily to court, for what will you do in the end if your neighbor puts you to shame?" (25:8)"

I am going to engage in some speculation regarding the mental state of another person, which is always dangerous. That said, I suspect that those making the decision to proceed with these lawsuits do not see any significant risk that they will lose. I don't say that because of the current state of constitutional jurisprudence on the issue, which would suggest that they are almost certain to lose. But I think they have a not unreasonable belief that the current state of the federal judiciary will engage in results-oriented jurisprudence to reach a favorable result.
Anonymous | 5/29/2012 - 11:59pm
mulberry bags