Are the Courts the Answer on Healthcare Regulations?

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