by Jeremy Leaming
University of Notre Dame’s religious leader the Rev. John Jenkins claims the string of federal lawsuits challenging the Obama administration’s health care policy on birth control is all about protecting religious freedom. But in reality the lawsuits are on wobbly legal ground, and Jenkins’ assertion about protecting a cherished First Amendment freedom is tired.
Like a federal lawsuit lodged earlier this year on behalf of Ave Maria University, a Catholic institution in Florida, the new lawsuits argue that a portion of the health care reform law requiring insurance companies to provide birth control to employees, including ones at religious institutions, is a serious affront to the religious institutions’ free exercise of religion rights.
The Affordable Care Act, however, does not single out religious entities for unheard of treatment. Instead it is a law of general applicability, meaning it covers secular and religious institutions. There are all kinds of laws of general applicability, which may offend religious beliefs, but do not amount to a violation of the free exercise of religion.
Nonetheless, the religious groups are apparently counting on judicial activism from some of 12 federal courts where their lawsuits have been lodged. In a press release about his school’s lawsuit, Jenkins stuck to the religious liberty canard, saying it “is about the freedom of religious organizations to live its mission ….”
Irin Carmon, reporting for Salon on the religious groups’ legal actions, agrees with Angela Bonavoglia’s assertion that “this struggle is part of a larger crackdown by conservative hierarchy against liberal elements within it – chiefly, women, including nuns.”
Others such as the public interest group Americans United for Separation of Church and State say the Catholic organizations are looking to the courts to help them revive faltering church doctrine.
“The bishops haven’t been able to persuade their own flock to listen to them on birth control, so now they are attempting to use lawsuits to achieve the control they yearn for,” said Americans United head the Rev. Barry W. Lynn.
Regardless of the religious groups’ intentions, likely political and useful for fundraising, their lawsuits are not about religious liberty, and if the federal courts follow precedent they should fail.
Part of the Obama administration’s motivation to reform the health care system centered on providing a greater number of Americans health care coverage. It therefore would have made little sense to allow religious employers to deny women workers an integral part of health care coverage.
As Planned Parenthood Federation President Cecile Richards said, “Access to birth control is a critical health and economic concern for American women. It is unbelievable that in the year 2012 we have to fight for access to birth control.”