What Would Jefferson Advise Today’s Supreme Court About the Little Sisters of the Poor?

In 1804 an Ursuline nun in New Orleans asked Thomas Jefferson to clarify in writing her religious community’s right to retain their property and to continue their ministries without government interference following the Louisiana Purchase. As French Catholic Louisiana was being incorporated into the Anglo-Protestant United States, the nuns were concerned about the status of their institutions under U.S. law. President Jefferson assured her that the government would not interfere with the sisters’ property, ministries, and way of life. In a letter dated May 15, 1804, he wrote:

“I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution….The principles of the constitution and government of the United States are a guarantee to you that it will be preserved to you, sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.”

Jefferson confidently promised that the American Constitution would protect the nuns and that the government would leave them alone. So why don’t Catholic sisters today even qualify for a religious exemption from ObamaCare’s insurance mandate that requires contraception and abortion coverage? It may seem unbelievable, but according to the Obama Administration’s definition of “religious employer,” sisters are not included.

On March 23 the U.S. Supreme Court will hear oral arguments on behalf the Little Sisters of the Poor (and other religious clients of the Becket Fund for Religious Liberty) in a historic religious freedom case. The Little Sisters are a nearly 200-year-old religious community dedicated to caring for the elderly poor. They run 30 homes in the U.S. (four in the West) and care for nearly 13,000 people in 31 countries.

During implementation of the Patient Protection and Affordable Care Act (ObamaCare), the Department of Health and Human Services (HHS) directed most employers to include coverage of contraceptives and abortion-inducing drugs in their employee health insurance policies, or else pay a fine of $100 per employee, per day. The Sisters subsequently filed suit against the federal government, saying “they cannot, according to their faith, include contraceptives in their employee health plan.”

The Becket Fund, which represents the Sisters and other religious clients in their lawsuit, explains:

“The Court’s decision will finally resolve the crucial question of whether governmental agencies can, wholly without legislative oversight, needlessly force religious ministries to violate their faith….The [HHS] mandate forces the Little Sisters to authorize the government to use the Sisters’ employee healthcare plan to provide contraceptives and abortion-inducing drugs—a violation of their faith—or pay massive fines, which would threaten their religious mission.”

The “HHS Mandate” has a narrow conscience exemption that applies only to organizations whose purpose is solely to inculcate religious values and which employ and serve primarily members of their own faith. The exemption does not include religiously affiliated or faith-based institutions which serve all people without discrimination (like hospitals, colleges, schools, and social service agencies). And it doesn’t apply to communities of nuns.

“The Little Sisters should not have to fight their own government to get an exemption it has already given to thousands of other employers, including Exxon, Pepsi Cola Bottling Company, and Boeing,” said Becket Fund Senior Counsel Mark Rienzi. “Nor should the government be allowed to say that the Sisters aren’t ‘religious enough’ to merit the exemption that churches and other religious ministries have received….It is ridiculous for the federal government to claim, in this day and age, that it can’t figure out how to distribute contraceptives without involving nuns and their health plans.”

Thomas Jefferson explained to the Ursuline nuns of 19th-century Louisiana that American law would protect them and their institutions, regardless of the differences among American citizens:

“Whatever the diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.”

We can only imagine what Jefferson might think of American women having to sue the Obama Administration to defend their First Amendment rights. But can we doubt he would be dismayed by how intrusive and coercive the federal government has become since the day he wrote so cordially to a group of French nuns about the safeguards of the American Constitution?

 

How Jefferson Explained the Constitution to Louisiana Nuns

This week in 1804, Thomas Jefferson wrote to an Ursuline nun in New Orleans, who had asked him to clarify her religious community’s rights under U.S. law after the Louisiana Purchase. President Jefferson assured her that the American government would never interfere with the nuns’ property, ministries, or way of life.

 

Jefferson wrote, “The principles of the constitution and government of the United States are a guarantee to you that it will be preserved to you, sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.”

 

Two hundred ten years after Jefferson wrote that letter, a community of sisters who care for the elderly is defending in court their right to carry out their ministries in accordance with their faith. Under current federal regulations, the Little Sisters of the Poor don’t qualify for a religious exemption from the ObamaCare insurance mandate which requires most employers to provide contraception and abortion coverage.

 

Like the Ursuline nuns of Jefferson’s time, Catholic sisters today should not lose their religious freedom while working in their own ministries. We can imagine what Jefferson might think of American women having to sue the government to defend their First Amendment rights. But can we doubt he would be dismayed by how intrusive and coercive the federal government has become since the day he explained the safeguards of the American Constitution to a group of French nuns?

Kathryn Hickok is Publications Director and Director of the Children’s Scholarship Fund-Portland program at Cascade Policy Institute.

Court Says “No” to Forced Insurance Subsidy

The federal government’s HealthCare.gov website has been nearly useless for a month. Now, millions of Americans are beginning to receive letters informing them of the cancellation of their current health insurance policies―proving the inaccuracy of President Obama’s promise that “if you like your health care plan, you can keep your health care plan.”

But news reports on ObamaCare as the calendar turned to November largely missed another important story. A controversial provision of the Patient Protection and Affordable Care Act (ObamaCare) suffered a judicial setback in the D.C. Circuit Court of Appeals on November 1. Writing on behalf of the court, the judge highlighted an important civil libertarian concept which is also at the heart of many principled objections to the health care law.

In Gilardi v. U.S. Department of Health and Human Services, the D.C. Circuit Court granted the plaintiffs, who own a family business, a preliminary injunction against the imposition of the HHS Mandate requiring inclusion of contraception and abortifacient drugs in employee health insurance plans. The Gilardi family, who are Catholics, contend that the HHS Mandate requiring coverage for contraception, sterilization, and abortion-inducing drugs violates their religious beliefs and that requiring their company to cover employees’ contraception, or else pay a $14 million penalty to the IRS, is unduly burdensome. The court sided 2-1 with the Gilardis. In her ruling, Judge Janice Rogers Brown made a distinction between “noninterference” with a person’s choices and the “compelled subsidization” of those choices by another party.

The Obama Administration has consistently held that the HHS Mandate requiring contraceptive coverage is necessary to protect women’s reproductive and abortion rights. The Administration argues that women’s right to have access to contraception trumps the First Amendment rights of those who object to providing these services on religious or moral grounds. The President has refused to accommodate the conscience objections of policyholders, religious and secular employers, and charitable organizations during ObamaCare rulemaking.*

However, Judge Brown wrote on behalf of the court that “it is clear the government has failed to demonstrate how such a right―whether described as noninterference, privacy, or autonomy―can extend to the compelled subsidization of a woman’s procreative practices.”

The distinction between “noninterference” and “compelled subsidization” is important for reasons broader than conscience objections alone, and it should strike a chord with civil libertarians. The expansion of government programs and entitlements (including medical benefits specifically handpicked by the government) pits the newly created “rights” of some to receive additional products and services, against the rights of other people who may be paying for them in whole or in part (as employers, policyholders, or taxpayers).

Charles Krauthammer recently explained the connection between ObamaCare’s health care entitlements and coercion this way:

“The planners knew all along that if you force insurance buyers to overpay for stuff they don’t need, that money can subsidize other people. Obamacare is the largest transfer of wealth in recent American history. But you can’t say that openly lest you lose elections. So you do it by subterfuge: hidden taxes, penalties, mandates, and coverage requirements that yield a surplus of overpayments. So that your president can promise to cover 30 million uninsured without costing the government a dime. Which from the beginning was the biggest falsehood of them all. And yet the free lunch is the essence of modern liberalism. Free mammograms, free preventative care, free contraceptives for Sandra Fluke. Come and get it.”

Once the government has successfully compelled all Americans to purchase health coverage―even against their will―under ObamaCare’s individual mandate in order to make this wealth transfer possible, it is a short slide into compelling Americans to subsidize other people’s benefits to which they morally object.

To protect Americans’ constitutional rights, and rein in the entitlement culture, the courts need to affirm consistently that not interfering with another person’s choices does not mean forcing others to provide, subsidize, or enable those choices. According to the Becket Fund for Religious Liberty, 77 cases representing 200 plaintiffs have been filed against the HHS Mandate on First Amendment grounds. Regardless of Americans’ disagreements over the ethics of contraception and abortion, the freedom not to be financially complicit in the choices of others to which one morally objects ought to be a value on which many of us can unite. The First Amendment may end up being one of the last legal defenses citizens have against the unfettered expansion of the entitlement state.

 

* The HHS Mandate has an extremely narrow conscience exemption which does not apply to for-profit businesses or to organizations which may be religious by any common-sense standard but are not run by a church.

What Would Jefferson Say to the Little Sisters of the Poor?

In 1804 an Ursuline nun in New Orleans asked Thomas Jefferson to clarify in writing her religious community’s right to retain their property and to continue their ministries without government interference following the Louisiana Purchase. As French Catholic Louisiana was being incorporated into the Anglo-Protestant United States, the nuns were concerned about the status of their institutions under U.S. law. President Jefferson assured her that the government would not interfere with the sisters’ property, ministries, and way of life. In a letter dated May 15, 1804, he wrote:

“I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution….The principles of the constitution and government of the United States are a guarantee to you that it will be preserved to you, sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.”

Jefferson confidently promised that the American Constitution would protect the nuns and that the government would leave them alone. So why don’t Catholic sisters today even qualify for a religious exemption from ObamaCare’s insurance mandate that requires contraception and abortion coverage? It may seem unbelievable, but according to the Obama Administration’s definition of “religious employer,” sisters are not included.

Last year the Department of Health and Human Services (HHS) directed almost all employers to include coverage of contraceptives and abortion-inducing drugs in their employee health insurance policies, or else pay a fine of $100 per employee, per day. HHS subsequently published a final rule that requires many health insurers to charge all enrollees to cover the cost of elective abortions.

The “HHS Mandate” has a narrow conscience exemption that applies only to organizations whose purpose is solely to inculcate religious values and which employ and serve primarily members of their own faith. The exemption does not include religiously affiliated or faith-based institutions which serve all people without discrimination (like hospitals, colleges, schools, and social service agencies). And it doesn’t apply to communities of nuns.

Because of this, the Becket Fund for Religious Liberty filed a lawsuit September 24 in federal district court in Denver on behalf of the Little Sisters of the Poor. The Sisters are a nearly 200-year-old religious community dedicated to caring for the elderly poor. They run 30 homes in the U.S. (four in the West) and care for nearly 13,000 people in 31 countries.

“We cannot violate our vows by participating in the government’s program to provide access to abortion-inducing drugs,” said Sister Loraine Marie, a superior of one of the American provinces of the Little Sisters community.

“The Sisters should obviously be exempted as ‘religious employers,’ but the government has refused to expand its definition,” said Becket Fund senior counsel Mark Rienzi. “These women just want to take care of the elderly poor without being forced to violate the faith that animates their work. The money they collect should be used to care for the poor like it always has―and not to pay the IRS.”

According to the Becket Fund, the lawsuit “is the first of its kind both because it is a class-action suit that will represent hundreds of Catholic non-profit ministries with similar beliefs and because it is the first on behalf of benefits providers who cannot comply with the Mandate.”

Jefferson explained to the Ursuline nuns that American law would protect them and their institutions, regardless of the differences among American citizens:

Whatever the diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.

“I salute you, holy sisters, with friendship and respect.”

Like the Ursuline nuns of Jefferson’s time, the Little Sisters of the Poor seek to secure their right to live out their faith through service to those in need. Catholic sisters do not give up their religious freedom when they establish nursing homes―or any other ministry. We can imagine what Thomas Jefferson might think of American women having to sue the Obama Administration to defend their First Amendment rights. But can we doubt he would be dismayed by how intrusive and coercive the federal government has become since the day he wrote so cordially to a group of French nuns about the safeguards of the American Constitution?

Kathryn Hickok is Publications Director at Cascade Policy Institute, Oregon’s free market public policy research organization.

The Opportunity to Protect Our Rights and Our Children

By William Newell

Medical technology has miraculously saved millions of lives. Our constitutionally limited, representative government is just as miraculous. Both are designed to improve the human condition. Sometimes though medicine and government clash. The ongoing debate in Oregon concerning religious exemptions from vaccinations exemplifies this conflict.

Over 90 percent of Oregon parents currently vaccinate their children, but the state legislature still passed Senate Bill 132 which requires proof that parents seeking a religious exemption have been notified of the benefits and risks of vaccines. The legislation targets religious individuals because of their beliefs and burdens those individuals with complying to state desires. The Constitution of Oregon makes clear the state’s duty to protect religious liberty under Article 1, Section 3, which reads: “no law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.”

Additionally, placing informed consent stipulations on religious parents serves little purpose because  such information is widely accessible from doctors and government websites. Mandating parents watch a video or see a doctor is not going to change people’s minds. While vaccinating children is worthwhile, this legislation will not be very effective and undermines our precious constitutional rights.

William Newell is a research associate at Cascade Policy Institute, Oregon’s free-market think tank.

This First Amendment Fight Is for Freedom to Serve

Fifteen million. That is the number of meals Blanchet House of Hospitality estimates it has served to the needy in Portland since 1952. Blanchet House originated as a Catholic social and service group started by University of Portland students in 1938. Today, Blanchet serves an estimated 700 to 900 people every day in Old Town/Chinatown. If fifteen million people stood next to each other, the distance would stretch from about the North Pole to the Equator.

Nearly forty years ago, a Salem priest wanted “to provide a safe and loving home” for pregnant teenage mothers so they wouldn’t believe their only option was an abortion. The Father Taaffe Foundation says: “They were given a home, not just an address. They were treated with respect, love and care, some for the first time in their lives. They were given a sense of safety, structure, and direction; an example of family life and hope for the future.”

Monday through Saturday, volunteers provide help for those most marginalized and forgotten at Saint André Bessette Catholic Church, better known by its former name―the Downtown Chapel. Says St. André Bessette’s mission statement: “Compelled by our faith, our parish honors the dignity of each person by providing hope, healing and hospitality to all who come to our doors.”

Catholic Charities is the professional social services arm of the Archdiocese of Portland. It offers housing assistance, disaster relief, human trafficking outreach, immigration legal services, pregnancy and adoption counseling and services, Hispanic outreach, and more. It provides these things “regardless of faith, race, marital status or condition in life. [Catholic Charities’] activities are based upon the fundamental belief in the dignity and sanctity of human life and the principles of Catholic Social Teaching.” Catholic Charities served 1,323 people in 1952. Today, Catholic Charities helps more than 100,000 Oregonians in need every year.

The Society of St. Vincent de Paul, with a highly active council in Portland, is a “worldwide Catholic organization of laypersons, open to all who wish to live their faith by loving and serving their neighbor….[M]embers…help those in need, regardless of race, ethnicity, creed, gender, orientation, handicap or religion.”

All of these organizations provide vital assistance to the needy in Oregon, all are inspired directly and explicitly by the faith of the people who work and volunteer for them, and all operate in accordance with the moral beliefs and values of the Catholic Church.

But organizations like these would not be considered “religious employers” by the federal government, because they do not exist solely for the purpose of serving members of their own faith.

Last summer, the Department of Health and Human Services (HHS) directed virtually all employers to include coverage of contraceptives, sterilization procedures, and abortion-inducing pharmaceuticals without copayment in their employee insurance policies. HHS subsequently published a final rule that requires many health insurers to charge all enrollees in order to cover the cost of other people’s elective abortions.

The HHS mandate on contraception, sterilization, and abortion has an extremely narrow conscience exemption only applicable to organizations whose purpose is solely to inculcate religious values and which employ and serve primarily members of their own faith. It will not include the vast majority of religiously affiliated or faith-based institutions like hospitals, colleges, schools, and social service organizations which may have moral objections to paying for or providing these products and services. Grimly dubbed “the parish secretary exemption,” it would apply mostly to houses of worship, not to ministries and charitable agencies which serve all people without discrimination.

For the federal government to attempt to force organizations like Catholic Charities to pay for or to provide contraception and abortion is absurd. Equally absurd is forcing Catholic organizations to assist only members of the Catholic Church or else to be considered “not religious”―and therefore subject to government regulations that violate their moral standards. In fact, this should be ruled unconstitutional.

Catholic social services are the fruit of people’s faith, but they don’t help others because the needy share that faith. Catholics believe that Christ’s words and example require them to reach out to all. Restricting assistance only to members of their religion is unacceptable to them. This is why forty-three Catholic dioceses, universities, Catholic Charities chapters, and other entities have brought a historic lawsuit against the federal government. Through the new HHS rules, the federal government, in effect, has created “two classes of religious organizations”―houses of worship which are exempt from its conscience-crushing directives, and service organizations which may have to violate their moral principles or stop serving the needy.

The Catholic Church, and Americans of all faiths or none who are uniting in defense of religious liberty, are not seeking special treatment under the law, but only the freedoms guaranteed by the First Amendment of the Constitution. The Archbishop of Washington, D.C., Cardinal Donald Wuerl, said, “Just as our faith compels us to uphold the liberty and dignity of others, so too, we must defend our own.” This First Amendment fight is not for believers’ freedom to worship behind church doors, but for their freedom to serve millions of their neighbors who stand outside, in accordance with their faith and moral values.

Kathryn Hickok is Publications Director at Cascade Policy Institute, Oregon’s free market public policy research organization, and a graduate of the University of Portland.

 

“We Have a Year to Figure out How to Violate Our Consciences”

“Never before has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience,” stated Cardinal-designate Timothy Dolan, archbishop of New York and the president of the United States Conference of Catholic Bishops. “This shouldn’t happen in a land where free exercise of religion ranks first in the Bill of Rights.”

Serious constitutional concerns have been consistently raised about the Patient Protection and Affordable Care Act (PPACA, known popularly as “ObamaCare”), passed by Congress in 2010. Twenty-seven states have sued the federal government on the grounds that Congress does not have authority to require their citizens to purchase a specific product or service, in this case, health insurance. The Supreme Court has agreed to hear some of these cases in March and presumably will rule on the constitutionality of the PPACA’s so-called individual mandate by the end of June.

Beyond this fundamental constitutional objection, another aspect of the PPACA recently took a disturbing turn. In August 2011, the Department of Health and Human Services (HHS) directed virtually all employers to include coverage of contraceptives, sterilization procedures, and abortion-inducing pharmaceuticals without copayment in their employee insurance policies. The HHS mandate has an extremely narrow conscience exemption that will not include the vast majority of religiously affiliated employers and institutions, including hospitals, colleges, schools, and social service organizations which may object to these services on moral grounds.

So, not only does the PPACA require all Americans to purchase health coverage, but Americans can be forced to pay for―or to provide as employers and insurers―things their faith may teach are wrong.

The Catholic Church, along with faithful of other religious communities, protested. The Administration has not backed down. In fact, on January 20, 2012 President Obama called Archbishop Dolan to inform him that the conscience exemption will not be broadened. Enforcement of the mandate simply will be delayed until August 2013, at which time insurance coverage of “preventive services” must include all FDA-approved forms of contraception, including sterilization and some abortion-inducing drugs.

“In effect,” Dolan said publicly in response, “the president is saying we have a year to figure out how to violate our consciences.”

Opponents of the HHS mandate stress that it is very troubling for the government to attempt to force members of one of the largest religions in the world, the Catholic Church, to directly participate in what their Church considers grave moral evils. If Catholic institutions can be forced to behave in contradiction to their moral beliefs, pay massive fines to the government, or close their doors, no other group can expect to have its “free exercise” of religion protected, either.

The last two weeks have seen a firestorm of protest, from the Catholic Church and from others seriously concerned about First Amendment rights. The Catholic bishops released statements denouncing the HHS decision, read from pulpits nationwide. Orthodox, Protestant, Evangelical, Jewish, and Muslim leaders have spoken out against the mandate, noting that if “free exercise” is not respected in this case, other abuses of religious liberty and freedom of conscience surely will follow. As chancellor and CEO-elect of Reformed Theological Seminary (one of the largest Protestant seminaries in the country) Michael Milton wrote, “This is not a Catholic issue only. It is not a contraception issue. It is a religious liberty issue. It is an American issue.”

Members of the current Administration, including Secretary of State Hillary Clinton, have begun referring to the First Amendment right to “free exercise” of religion as “freedom of worship.” This is dangerously incomplete. “Free exercise” of religion is more than the ability to choose the house of worship one frequents on weekends. Free exercise is the ability to live your faith and morals seven days a week.

Members of Congress have introduced legislation intended to prohibit the federal government from requiring a provider to provide, participate in, or refer for a specific health care service contrary to the provider’s religious beliefs or moral convictions (the “Respect for the Rights of Conscience Act,” or House Resolution 1179/Senate Bill 1467). But while Congressional leaders work to defend the rights of religiously affiliated organizations, they must not forget the rights of individual Americans, either.

Americans must send the federal government a clear message: Government must not abrogate the conscience rights of employers and insurance providers, and neither should it abridge the First Amendment rights of individual Americans by forcing them to participate in something to which they morally object. It was a small step from government forcing Americans to “go out into the marketplace” and buy health care to, as Archbishop Dolan said, “go out into the marketplace and buy a product that violates their conscience.”