David Preston, Executive Director
Oklahoma Wesleyan University Foundation
The Department of Health and Human Services would have you believe it is defending the lawsuit brought by Oklahoma Wesleyan University, the Little Sisters of the Poor, and 34 other religious employers to assure that all female employees have access to all contraceptive devices, pills, abortifacients, and services at no cost. That’s not true.
Those of us involved in the litigation have known this for some time, arguing that between grandfathered health plans of Fortune 100 employers, military exemptions, and other special employer exemptions, there are tens of millions of female employees not required to be covered with free access to contraceptives. Nonetheless, the government has been loath to admit or address that inconvenient fact, sticking by its “access” claim in oral arguments and in court pleadings throughout the various lower courts.
However, by its recent inaction and unwillingness to negotiate with plaintiffs in the face of a supplemental order and subsequent per curiam opinion from the Supreme Court, HHS’s intent and goals are now apparent, and it doesn’t want the Court to stand in its way.
The “access” claim is a ruse. The goal is to achieve new, judicially-sanctioned limits on the free exercise of religion. I’ll explain.
Recall the Supreme Court, after hearing oral arguments in the case, Zubik v. Burwell, was convinced there was a path to a compromise that would assure easily-available, universal access to contraception while still respecting the religious beliefs of the plaintiffs by removing them from complicity in the delivery process. Thus the Court took the unusual step of issuing a supplemental order that suggested such a compromise and asked the parties to submit briefs on the issue.
The religious employers responded, after much discussion and prayer, that the suggested compromise was satisfactory, as it would sufficiently remove them from complicity in the delivery of the contraceptives. The government in its brief conceded that its current accommodation process “could be modified to operate in the manner [contemplated]” in the order, while still assuring the employees have access to contraception. The Court sensed a resolution between the parties was possible, and suggested it was likely.
The Court issued a per curiam opinion vacating the lower court rulings and urging the parties to reach a compromise along the lines of that suggested before the cases were returned to the lower courts for another trial.
Indeed. What the Court assumed, mistakenly it now appears, is that both sides would pursue the resolution in good faith. Good faith is not what HHS is all about.
If “access” was indeed the government’s goal, the end of this litigation should be at hand. The proposed resolution assures that women employees of the plaintiffs will be able to seamlessly access all contraception devices and services at no cost, and there is no shortage of ways this can be accomplished. It could be a stand-alone policy (even offered by the employers’ current health insurer) similar to dental or vision insurance. It could be an extension of Title X programs that currently distribute contraceptives to women at no cost. It might require a separate insurance card or another form to fill out or a phone number to call, but it needn’t be an onerous process. And, to the point, it assures employee access without hijacking the employers’ plans to do so.
But the government has not budged since the Court issued the per curiam, rebuffing the plaintiffs’ offers to reach a settlement along the lines set forth by the Court. So a disinterested observer looking at the government’s position might be confused – guaranteed access while respecting the rights of the religious employers? Why are we still here?
We are still here because this case is not about access to contraception. It’s about limiting the right of religious people and institutions to live out their faith in their daily lives.
It’s about the progressive left’s desire to limit the scope and effect of the “free exercise” clause of the First Amendment.
Here’s the plan. When HHS issued its regulations under the Affordable Care Act mandating the products and services that must be included in all employer health plans, it exempted a narrow range of religious institutions – essentially churches, synagogues, and other places of worship. It did not use the broader religious exemptions used in other federal laws such as Title VII of the Civil Rights Act and Title IX, which would have exempted Oklahoma Wesleyan, the Little Sisters, and the other plaintiffs in this case from having to take actions that offend their religious beliefs.
HHS did so for a very calculated reason. Consider that the administration, from the president on down, has begun to use the term “freedom to worship” as a substitute for the actual language of the First Amendment, “free exercise of religion.” The goal is to limit the free exercise clause to what transpires within a synagogue or church on Saturday or Sunday and restrict religious peoples’ right to exercise their faith daily in all they do – to live, work, raise their families, and engage in cultural debates based on their sincerely-held religious beliefs. Words matter, and the widespread use of the “right to worship” has illuminated the administration’s intent.
If HHS can gain judicial acceptance of this arbitrary distinction between churches and other religious institutions, such as the Little Sisters and our university, it will be well-positioned in the future to use that distinction as precedent in subsequent regulations to further erode religious expression outside the four walls of a church or synagogue. It will have made a quantum leap in its effort to re-write the First Amendment to merely the “freedom to worship.”
And it is an arbitrary distinction. Few are the modern American churches that exceed our college’s daily dedication to the four pillars of its mission – the Primacy of Christ, the Priority of Scripture, the Pursuit of Truth It is pervasive in everything we do – in the classroom, in our community service efforts to combat human trafficking and care for the poor, on the athletic field, in twice-weekly chapel, and in our student code of conduct. It guides our position on the sanctity of life and informs our decision-making about the use of abortifacient drugs.
When a local newspaper commentator excoriated our leadership for pursuing a lawsuit she was certain our female employees didn’t agree with, our female employees took offense and responded with a letter that expressed support for the lawsuit and solidarity with the college’s stance on religious liberty. We are a unified, unapologetically Christian community.
We are a unified, unapologetically Christian community.
That the government does not consider our institution sufficiently religious to be entitled to an exemption doesn’t make it so. It is not the government’s place, against the threat of excessive monetary fines and penalties, to tell Oklahoma Wesleyan and its employees whether it believes our religious principles are wrong, or misguided, or should be ignored. Its actions amount to arbitrary and extra-legal coercion in pursuit of a goal to diminish religious liberty.
Thus, we bear witness to HHS’s inaction in the face of the Supreme Court’s proposed compromise. It makes little sense until you realize the government’s goal is not to assure access to contraception.
Then it makes great sense when you realize how close the progressives are to fulfilling a longstanding dream – the judicial sanctioning of an arbitrary and narrow religious exemption that will afford them unfettered freedom in the future to drastically limit the free exercise clause and marginalize religious people and institutions.