In a much-noticed interview with weekly Catholic magazine America, Bishop Stephen Blaire of Stockton, Calif., openly protested the decision to go to court. He said it was a premature move without a fuller discussion among the national community of bishops, especially in light of concerns that Catholics' objections to the HHS rule were being used as a political tool in an election year.
“I think there are different groups that are trying to co-opt this and make it into a political issue, and that's why we need to have a deeper discussion as bishops,” Blaire was quoted as saying, adding that further discussions with the Obama administration could have been fruitful. Blaire declined an interview through a spokeswoman, but confirmed the quotes in America were accurate.
Executives with St. Dominic-Jackson (Miss.) Memorial Hospital joined dioceses of Jackson and Biloxi in filing a lawsuit in the federal district court in Gulfport, Miss., to defend what hospital officials said was a threat to a central tenet of American life.
“We didn't enter into it lightly,” said Paul Arrington, spokesman for the hospital. “It's clearly a grass-roots effort on behalf of lots of entities. It's not complex, it's pretty straight-forward. It's about protecting religious liberties and freedom.”
Executives were not available for interviews at the three healthcare organizations that joined the litigation—523-bed St. Dominic; 11-hospital Franciscan Alliance, based in Mishawaka, Ind.; and Catholic Health Services of Long Island (N.Y.), which is run by the Diocese of Rockville Centre through a parent company.
A statement on the Franciscan Alliance's website said the system decided to “support” the litigation at the request of the U.S. Conference of Catholic Bishops. “As a Catholic healthcare system, it is imperative that we support this effort of the bishops to defend the timeless and enduring truth of religious freedom,” the statement said.
The Conference of Catholic Bishops, which is the top Catholic policy-making group in the U.S., is not officially a party to the lawsuit, but its president, Cardinal Timothy Dolan, applauded the legal action. “We have tried negotiation with the administration and legislation with the Congress—and we'll keep at it—but there's still no fix,” Dolan said in a statement. “Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.”
Dolan's Archdiocese of New York was among the 13 that joined in the litigation, which is being handled by national law firm Jones Day. A spokesman for the law firm would not comment on reports that the legal services were being provided for free.
The lawsuits do not seek to overturn HHS' contraception-coverage requirement, but rather to expand the definition of religious employers who would be exempted. As written, the exemption in the Obama administration's rule would apply only to houses of worship and not Catholic hospitals, universities and social service groups that have much larger workforces. The administration failed to quell criticism in February with a modification calling for the insurer to cover the costs of contraception benefits if an employer raises a religious objection.
Framing the issue in terms of expanding an exemption might make the critics' position more palatable to the public, said Nadia Sawicki, assistant professor at the Beazley Institute for Health Law and Policy at the Jesuit Loyola University Chicago School of Law.
“As a general matter, I think it makes sense from the perspective of these institutions to challenge the law as applied to their own situations seeking an exemption for themselves, rather than saying it is per se illegal and trying to get rid of it,” she said. “My guess is that public opinion doesn't extend all the way to the position that contraception coverage should be repealed.”
Leonard Nelson III, a law professor at the Christian Samford University in Birmingham, Ala., said he thinks the Catholic organizations' lawsuits could find success in the courts if judges decide to focus on the argument that the birth-control policy violates the 1993 Religious Freedom Restoration Act.
That law requires that Congress shall not “burden a person's exercise of religion” unless lawmakers can show that it furthers a compelling government interest and is the least restrictive means of doing so. “I think the argument under federal RFRA is a strong argument,” Nelson said.
One system not involved in the litigation—24-hospital Catholic Health Partners, based in Cincinnati—acknowledged it was sympathetic to the goals of the lawsuits.
“Catholic Health Partners supports any resolution that would exclude us from providing HHS-mandated insurance benefits (sterilizations, abortion-inducing drugs and contraceptives) that are in conflict with the religious beliefs of the Catholic Church,” a system spokesman said in a statement. “The simplest resolution would be for the Obama administration to expand its proposed church exclusion to accommodate all parts of the Catholic ministry, including health systems.”