The Upcoming Court Battle Over the HHS Mandate

In what way can simply signing a document be a burden on you or your freedom?

Obviously, the answer to that question depends on the document that you’re asked to sign.  If you’re a celebrity and a fan hands you a scrap of paper for an autograph, your burden consists of a few seconds of your time—and in fact, it’s probably a joy for you.  If you’re obtaining a mortgage, your signature on the dotted line burdens you with decades of financial obligations.  If you’re a governor or the president, your signature on legislation carries the burden of changing the law for better or worse.

But if you’re an employer in America today, as I am, your signature can make you complicit in a grave evil, thanks to the burden the Obama administration has placed upon groups like mine when it comes to the objectionable “services” we are asked to cover in the health insurance plans we offer our employees.

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Priests for Life—the organization that I am blessed to lead—and dozens of other petitioners will be represented in the Supreme Court on March 23 when oral arguments occur in our consolidated lawsuit, Zubik v. Burwell, challenging the HHS mandate.  We are defending ourselves because the government is asking us to commit an act that our faith prohibits.

Over four years ago, the Department of Health and Human Services, as part of Obamacare, issued a regulation requiring religious non-profit groups such as Priests for Life, the Archdiocese of Washington, Catholic and Christian colleges, charities, shelters, and homes for the aged to make available to our employees drugs, devices, and procedures that violate our faiths.  Some of these items kill unborn human lives.

In response, Priests for Life immediately filed a lawsuit challenging the HHS mandate—the first such lawsuit of all the petitioners now before the Supreme Court.

Last year, you may remember, the Supreme Court heard the Hobby Lobby case that also dealt with the HHS mandate. The Court, in a five-to-four decision, upheld the religious rights of families that own businesses not to be forced to violate their deeply held beliefs.  It ruled that the Christians who own the Hobby Lobby stores—and others similarly situated—are exempt from having to comply with the government’s edict.

The Hobby Lobby ruling, however, does not apply to religiously based not-for-profit groups like Priests for Life.  As such, there are over 50 cases nationwide brought by non-profit groups that are awaiting resolution of our consolidated Supreme Court case. In the meantime, the government insists that we, who object to abortion-causing drugs and devices, must be the ones to help make them more accessible.

One of the key points in our case is whether writing a letter or signing a form that is an integral part of making abortifacients available to our employees constitutes a “substantial burden” on our religious liberty. The government argues that taking one of the two actions that it requires does not create such a burden, but that, on the contrary, enables us to opt out of it.

Which brings us back to the question of signatures.

In this case, a signature would authorize the distribution and availability of abortion-causing drugs and other items that the Catholic Church and other faiths hold to be gravely sinful.  By taking the action to arrange alternative coverage for life-terminating drugs, we would be participating in the very coverage that the form we are signing says we don’t have to participate in. The “alternative” part is just an illusion; it is still because they are employees of Priests for Life that our employees would have the objectionable coverage—and because of something that we at Priests for Life did.

Note that, contrary to some of the government’s arguments, this is not an objection to what someone else does later; it is an objection to what we are asked to do now.

First of all, we would have to contract with an insurance company that provides coverage for abortion-causing drugs and devices—an act which we do not now do. Next, we would have to submit to that company a form or letter stating that our organization’s plan does not cover the objectionable items. After that, we would have to notify the insurance company of any employee who was hired or left our organization so that the company would know whom to cover.

Under the government’s scheme, our employees would get coverage for abortifacients, contraceptives, or sterilization only because we signed the form or letter. Without our authorization, nothing happens. Therefore, ironically, the act of opting out makes us complicit in the very thing we are opting out of.

Put another way, although, according to the government, Priests for Life gets to opt out of providing the objectionable coverage, we still become the gateway to, and condition of, that coverage. Our employees still have the coverage, through the same insurance company with whom we have contracted, and precisely because they are our employees. So what is the difference between that and not opting out of the coverage at all? It seems that the only difference is that instead of being informed of the coverage for the objectionable practices in the same mailing as they are informed of the unobjectionable coverage, our employees get two envelopes rather than one. There’s no moral difference there at all.

Hopefully, the Supreme Court will recognize that this puts us in the position of either violating our faith or being punished for practicing it. And that is the essence of a “substantial burden.”

The government says our signature would be only a minor matter—what some lower courts have characterized as “a bit of paperwork.” What amounts to “a bit of paperwork,” though, can be more than faith allows. As one appeals court judge noted, “Thomas More went to the scaffold rather than sign a little paper for the King.”


  • Fr. Frank Pavone

    Father Pavone is the national director of Priests for Life and the co-chair of Pro-Life Voices for Trump.

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