Monday, June 3, 2013

Thoughts on the HHS Mandate

The ABAJournal issue for June just came out. My dad's a lawyer and an ABA member so he gets a copy. There was an article entitled "Corporate Prophets," focusing on companies which have sued the Department of Health and Human Services over the requirement it implemented via instructions in the Patient Protection and Affordable Care Act (such a misnomer but I digress) to require insurance coverage, without copay, to cover abortion drugs, contraception, and sterilization procedures. In any quotes, my emphases and my comments.

The article opens with a recap of the decision in Citizens United vs. Federal Election Commission, in which the Supreme Court said that "the 'corporate identity' of a speaker did not justify a reduced level of free speech protection." Justice Kennedy wrote:
No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.
Sufficient government interest is what it is all about. I argue there is none, and shall return to that in a moment.

 There are a host of issues with this comparison. Those acting after the Citizens United decision, at least as I can tell, seem to be donating in the name of the company. In contrast, individual business owners are suing Kathleen Sebelius (more on her in a moment!) in their own names, because their religious beliefs are substantially interfered with as they exercise their corporate positions. Next, there is no government requirement or indeed coercion to donate corporate funds, but there is with insurance coverage.

Then there are the facts of the law. We already know that dioceses and their affiliated ministries (schools, universities, hospitals, and Catholic Charities) are barely exempt, if at all. Most dioceses are self-insured, so the money is all self-generated (thus bringing the insurer closer to the source of evil and the action itself). Smaller businesses also follow this model, and one of the companies cited in the article is self-insured.

The dissent in Korte vs. Sebelius goes after the fact that the company pays for the insurance, and not the owners personally. So what? They are cooperating with evil. The two judges in the majority ruled that the form of business does not matter. I can't tell whether this company is self-insured. What I can say is that dissenting claim in Korte doesn't matter in the second case, Grote vs. Sebelius, as they personally, in the name of their company, assumed the responsibility of paying for insurance.

She also attacks the idea that a secular, for-profit business doesn't have a religious mission but the owners' religion can interfere with government regulations on business operations. Well, one is devoted to his or her vocation, in which the work is dedicated to God. Opus Dei specifically emphasizes this in the workplace while the Society of Jesus emphasizes this in the whole of daily life. And then she says:
"But the Grotes have not yet convinced me that whatever the contraception mandate [they are using our language. Interesting.] is a substantial burden, in the sense that it directly affects the exercise of their Catholic faith.
Clearly the US bishops do not agree. "We will not, cannot, comply," is the rallying cry. These acts and procudures are intrinsically evil, and we are being required to cooperate with them. It leads one away from God, which is directly connected with the faith, and not just the faith that one has accepted via baptism and participation in the life of the Church (doctrine and such), but everything about the world and the human condition that Catholicism more fully explains through the philosophy of nature and the human person, which leads me to my next selection from Professor Leslie Griffin, a constitutional law scholar at UNLV.
"Secular, for-profit corporations cannot exercise religion [Who said they were? A sign of contradiction surely must be the caricature of the position.]...Running a business is not the exercise of religion. Providing insurance coverage is not the exercise of religion. [What you do is though, in a way, for Catholics. All of us really, but in American law that won't fly. Yet.] It is a mistake to think of every moral belief as the exercise of religion. [Well, of course. But we all are longing for the Truth, as we long for our Creator. The short and sweet of it is that we ultimately all move towards what is revealed and guarded by the Catholic Church. We are spiritual-rational creatures, and that is why we are fundamentally religious as well....] 
Removing the mandate gives these businesses a leg-up in commercial competition, apparently, according to Professor Griffin. Well, that's a problem I cannot solve or fix by any stretch save prayer and the grace of God if you see no issue with paying for these drugs and procedures.

Marci Hamilton, a professor at the Benjamin Cardozo School of Law says:
"Whatever their beliefs, the federal law did not impose a substantial burden. [Clearly this comes down between to support for contraception or recognizing the evil that it is.] If anything it is an indirect burden several times removed. These businesses are not going to prevail and they shouldn't."
I agree, we likely will not prevail, but only because we have allowed the life of the Church in this country to so miserably erode. The Catholic justices oscillate from being good Catholics (the men anyways; Sotomayor is worthy of respect, but doesn't even pretend to be a practicing Catholic) to being neo-conservatives who could care less about morality.

Why can't Cardinal Burke be called to the witness stand as an expert witness for the plaintiffs in moral theology? He unequivocally has stated that cooperation would constitute formal material cooperation in evil, even as others have stated it is indirect material cooperation. Regardless, the bishops have all stated it's wrong. Period. We are not at a point right now of convincing others why it's wrong, just telling them that it is and to quit harassing the Church.

Oh and yeah: I said I'd return to Sebelius. I am fairly certain she is still barred from the reception of Holy Communion per canon 915. Apply this fervently to Nancy Pelosi, Joe Biden, et al.

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