In a twist that shows just how absurd the entire debate over “religious freedom” and the Affordable Care Act has become — and the futility of trying to find any compromise to satisfy religious conservatives — a federal judge has granted Ave Maria College an injunction against complying with the contraception mandate because it requires the Catholic college to tell the government who its insurer is.
The Obama administration in August crafted an accommodation to its original accommodation to the mandate because religious nonprofits complained that having to fill out a form to notify their insurers of their intent to opt-out would make them complicit in the provision of contraception.
The new accommodation required nonprofits who objected to the mandate to send the Department of Health and Human Services a letter stating their intent to opt-out of the mandate; HHS would then notify their insurer, who would be responsible for providing the coverage. This letter also had to include the pertinent facts about the employers’ health plan, such as who their insurer is, contact information for the insurer and what type of plan it is.
Ave Maria sent HHS a letter stating its intent to opt-out of the mandate by the November 1 deadline, but refused to name its insurer or provide any other details, which could have made it liable for up to $17 million in penalties without the injunction, which is the first to specifically block the revised accommodation.
The question of religious accommodations under the act’s contraceptive requirement long ago leapt the bounds of any recognizable debate over Catholic moral theology and the acceptable degrees of cooperation with forbidden services like contraception. Instead, the U.S. Conference of Catholic Bishops and allies like the Becket Fund for Religious Liberty, which reprents Ave Maria, have seized on objections to the mandate as a political tool to beat back the trend of widespread access to no-cost contraception for women, particularly by making the false assertion that emergency contraception is an abortifacient.
In its comments to the latest version of the accommodation, the USCCB took it a step further and asserted that not only are contraceptives not a preventive service, but actually pose a health threat to women, revealing a deep hostility to women’s exercise of fertility management:
Unlike other mandated “preventive services,” prescription contraceptives covered by this mandate do not prevent disease. Instead, they disrupt the healthy functioning of the human reproductive system, temporarily or permanently creating the condition of infertility commonly seen as a health problem. Indeed, various contraceptives are associated with adverse health outcomes, including an increased risk of such serious conditions as AIDS, breast and cervical cancer, cardiac failure, and stroke.
Like Ave Maria, the bishops also objected to the new accommodation on the grounds that “the eligible organization’s health plan continues to be used as the mechanism or vehicle” to provide the objectionable contraceptive coverage, which “substantially burdens the religious liberty of stakeholders with religious objections to the mandate coverage.”
In granting the injunction, U.S. District Judge James Moody cited the 11th Circuit Court’s decision to grant the Eternal World Television Network, a Catholic television network, an injunction against the enforcement of the original accommodation just hours after the Hobby Lobby decision found that the federal government couldn’t force for-profit businesses with a religious objection to contraception to provide it under the ACA. While that injuction was against the original accommodation, Moody said he didn’t see a “significant” distinction between the two notification requirements.
Jim Towey, president of Ave Maria, said he hoped that the decision would have “ripple effect” on other pending cases against the accommodation and be “the beginning of the end for the Obamacare mandate.”
Ave Maria College and Ave Maria Law School, which also objected to the accommodation, were founded by Domino’s Pizza founder Thomas Monaghan, a major funder of conservative Catholic causes, as a “school where traditional Catholic values and thought were built into every part of the curriculum” with the support of prominent conservative Catholics, including Supreme Court Justice Antonin Scalia and Robert Bork.
Both the Ave Maria and ETWN cases will go to trial. It’s not clear by what magical powers the administration can enforce the mandate if they don’t know who the relevant insurers are, but perhaps they have some kind of accommodation for that.