The government's "opt-out" does not allow us to exercise our religious freedom.
On Friday, November 14, the US Court of Appeals for the DC Circuit ruled against Priests for Life’s challenge to the HHS mandate in the case Priests for Life et al. vs. US Dept. of HHS et al.
Our group was the fourth plaintiff to introduce a challenge to this mandate at the beginning of 2012. As we have said from the beginning, and say again today, Priests for Life will not obey the HHS mandate. To ask a group of priests to cooperate in the government’s plan to expand access to birth control and abortion-inducing drugs is about as contrary to religious freedom as you can get.
In the interim, the government has provided what it calls an "accommodation" by which we opt-out of the obligation to provide such coverage. In principle, of course, this moves in the right direction. The conscience of every American should be accommodated by law, so that government never forces anyone to violate his or her conscience.
But the problem at issue in our case — in which the Archdiocese of Washington, Catholic University of America, Thomas Aquinas College, and other plaintiffs are also joined — is that the mechanism the government has provided for us to opt out is, in itself, objectionable to our religious and moral convictions. We have been pointing this out from the outset of this case.
If the government is sincere in wanting to enable us to opt out of something because it violates our moral conscience, it is reasonable for us to insist that we be given a way to opt out that does not itself violate our moral conscience. And whether it violates our conscience is for us to say, not the government.
Friday’s decision mischaracterizes our objections. It says, "What Plaintiffs object to here are “the government’s independent actions in mandating contraceptive coverage, not to any action that the government has required [Plaintiffs] themselves to take.”’
That is not correct. What we object to are the actions the government is asking us to take.
The decision later acknowledges that this is our position, but essentially says it’s not their problem. In fact, the decision expresses surprise and dismay that we continue to object to the very mechanism that lets us opt out of its plan to make it easier for our employees to get contraceptives and abortion-inducing drugs.
Yet the court’s own words confirm our reason to object:
"Once the eligible organization expresses its desire to have no involvement in the practice to which it objects, the government ensures that a separation is effectuated and arranges for other entities to step in and fill the gap as required to serve the legislatively mandated regime."
"Only if the eligible organizations communicate that they are dropping contraceptive coverage from the health insurance they have arranged for their employees will the government be able to ensure that the resultant gaps in employees’ coverage are otherwise filled. The government contends that its interests would be impaired if eligible organizations were entitled to exempt themselves from the contraceptive coverage requirement without notifying either HHS, or their insurers or TPAs."
That’s the point. We refuse to take actions that are necessary to help the government "fill the gap" to provide drugs that kill babies and harm women.
In short, the Court is telling us that the burden we incur is not "substantial," and they assert that it is the Court’s prerogative to analyze the substantiality of the burden. We, they complain, are collapsing "substantiality" into "sincerity," so that interference with any belief we sincerely hold becomes "substantial." But contrary to the Court’s concern, our view is not that the substantiality of the burden flows simply from our "sincerity" or is purely subjective. There are such things as "insubstantial" burdens on the practice of the faith. For instance, we wouldn’t object if fire codes or zoning ordinances might make a church temporarily unavailable for worship. It may cause us an inconvenience, but it is not worship as such that is being outlawed in that case.
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