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Posts Tagged ‘Sebelius’

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

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Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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As explained in a prior post, the jurisdictional infirmities exposed by the Fourth Circuit’s rulings in Virginia v. Sebelius and Liberty University v. Geithner should bring renewed attention to the alternative state standing theories in Florida v. HHS not yet addressed by any court. There are two such theories.  This post discusses the first, and a later post will examine the second.

The states’ lead theory is one of indirect injury from the incremental Medicaid expenditures each state will have to make when presently uninsured individuals comply with the mandate by enrolling in Medicaid. See States’ 11th Cir. Br. at 67-69.

The federal government has argued that this allegation of indirect injury is insufficient as a matter of law, that the claimed injury rests on speculation, and that any potential injury from individuals’ compliance with the mandate is neither actual nor imminent. Additionally, relying on Pennsylvania v. New Jersey, 426 U.S. 660 (1976), the federal government has argued that “it is difficult to see how a State can claim injury on the ground that its citizens choose to accept benefits the State offers them under State law. Reply to Mot. to Dismiss at 13.

The distinction between direct and indirect injuries in the state standing context is traceable to Florida v. Mellon, in which Florida sought to challenge a federal tax on the ground that it would “have the result of inducing potential taxpayers to withdraw property from the state, thereby diminishing the subjects upon which the state power of taxation may operate.” 273 U.S. 12, 17-18 (1927). The Court held that Florida could not go forward with the suit because the State was not in immediate danger of sustaining “any direct injury as the result of the enforcement of the act in question.” Id. at 18. In short, the Court drew a line between direct and indirect injury, and held that it lacked jurisdiction because the claimed fiscal injury arising by virtue of the actions of private citizens in response to the federal law was indirect.

While the line between indirect and direct may be hard to identify in certain cases, the distinction seems administrable enough to foreclose the claimed injury to states resulting from individuals’ compliance with the individual mandate. Recall, also, that states are not permitted to sue the federal government as parens patriae. Allowing states to rely on indirect fiscal injury could provide for easy circumvention of that limitation.

In attacking the states’ indirect injury argument as speculative, the federal government has argued that (i) the pre-mandate status quo already imposes costs on the states in the form of uncompensated care; and (ii), moving more people into insurance may result in a net reduction of costs borne by the states even though some of that insurance is state-provided insurance through Medicaid. The federal government has also pointed to circuit court cases denying standing to states on the ground that the complained-of fiscal effects were too attenuated. See Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976); Iowa v. Block, 771 F.2d 347, 352-54 (8th Cir. 1985).

If the Supreme Court were to consider this speculation argument, it is unclear (from the filings I have reviewed, anyway) whether the factual record would be sufficiently developed to ground a prediction about the effects of the mandate on state fiscs (which are likely to vary from state to state). If the record were to be found insufficiently developed, that would cut against the states because it is their burden to establish standing.

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