Lawyer says judge’s order affects religious liberty of all Missourians

ST. LOUIS (CNS) — A federal judge’s decision to strike down portions of a Missouri law protecting conscience rights of those who object to coverage of contraceptives and abortifacients in their health plans attacks the conscience rights and religious liberty of all Missouri citizens, said the state’s Catholic conference.

Judge Audrey Fleissig of the U.S. District Court for the Eastern District of Missouri in St. Louis issued her order March 14.

The Missouri Catholic Conference, public policy arm of the state’s bishops, expressed dismay over her decision. Tyler McClay, the conference’s general counsel, said no one should be forced to pay for contraceptives, abortion drugs or sterilization procedures in their health plans.

Elsewhere in the country, a federal judge in Michigan granted a preliminary injunction against enforcement of the federal contraceptive mandate in a suit brought against the Department of Health and Human Services by Tom Monaghan, founder and former owner of Domino’s Pizza, and his property management company.

In Minnesota, the state Catholic conference filed a friend-of-court brief with the appeals court in support of Catholic employers who are challenging the HHS mandate and “to stand in solidarity with (the) appellants, who are bravely contesting the legality of an unwise and unjust policy.”

In Missouri Fleissig’s order effectively amended a state law, McClay said, “thereby requiring churches and houses of worship to provide the offending coverage to their employees under Missouri law. She did this despite the fact that the Obama administration recently amended the rules to clearly allow churches and their affiliates to be exempt from the mandate.”

He was referring to new proposed rules issued Feb. 1 by the U.S. Department of Health and Human Services that would widen the exemption for religious organizations under the federal requirement that all employers provide employees with free coverage contraception, sterilization and abortion-inducing drugs.

HHS removed three conditions that defined religious employers — as groups whose purpose is the inculcation of religious values, who primarily employ persons of the same faith and who serve those of the same faith. The fourth criterion remains: what is a nonprofit organization under specific sections of the Internal Revenue Code.

No exemption, however, will be given to “for-profit, secular employers” whose owners have moral objections to providing the coverage.

A number of religious entities, including the U.S. Conference of Catholic Bishops, say the new proposed rules do not go far enough to exempt all those who object on moral and religious grounds to such coverage, such as individual employees and for-profit employers.

A number of federal judges, including even the 8th Circuit Court of Appeals, have granted injunctive relief to several Missouri for-profit employers that have sued, claiming that the HHS contraceptive mandate violates their religious liberty, McClay said. Her order specifically mentions these cases, but claims they are irrelevant to her decision.

“Attorney General Chris Koster vigorously defended the law before the court, but Judge Fleissig dismissed his arguments. Now the attorney general needs to appeal this overreaching decision and stand up for the religious liberties of all Missouri citizens,” he said.

The Catholic conference has asked all Missourians to contact Koster and urge him to appeal Fleissig’s “overreaching judicial order.”

The judge’s March order followed a temporary restraining order she issued in December that blocked enforcement of the Missouri law, which was passed last year to ensure that no one is forced to pay for abortion drugs and similar items in their health insurance when it violates their religious beliefs.

Gov. Jay Nixon vetoed the bill, but in a special legislative session in September both houses of the Missouri Legislature voted by wide margins to override the veto.

In an interview in January with the St. Louis Review, newspaper of the St. Louis Archdiocese, McClay said he wasn’t surprised by the restraining order, but nevertheless “we’re disappointed, because it doesn’t address the real issue — which is whether the (HHS) mandate is constitutional or not.

“(Fleissig) presupposes that the mandate is all good law and doesn’t consider the fact that it’s being challenged in the courts,” he said.

In her December order, Fleissig wrote that “insurers are placed in an untenable position as they cannot comply with both statutes at the same time.” She also noted that the Constitution states that federal laws trump state laws.

But McClay told the St. Louis Review, “It’s still our position that the mandate is unconstitutional and violates the Religious Freedom Restoration Act.”

On March 14, U.S. District Court Judge Lawrence P. Zatkoff of the Eastern District of Michigan granted a motion for a preliminary injunction against enforcement of the HHS mandate in a suit filed by Monaghan and his company, Domino’s Farms Corp., a property management company. He founded Domino’s Pizza in 1960 and sold the company in 1998 and is no longer affiliated with the pizza chain.

According to the Thomas More Law Center, Zatkoff previously issued a temporary restraining order; his new ruling means the HHS mandate cannot be enforced against Monaghan and his company while his lawsuit works its way through the courts.

According to a March 19 news release, the Minnesota Catholic Conference, public policy arm of the state’s bishop’s, filed a brief with the 8th U.S. Circuit Court of Appeals, based in St. Louis, on behalf of Minnesota entrepreneur Tom Janas and Stuart Lind, owner of Annex Medical Inc., a Minnesota-based medical supply company.

Lind and Janas sued over the HHS mandate because “their sincerely held Catholic beliefs prohibit them from complying” with it, they said, and claim that forcing them to do violates their “constitutional and statutory right to free exercise of religion.”

They filed an appeal with the 8th Circuit after a U.S. District Court denied a preliminary injunction allowing them to be exempt from complying with the mandate.

The bishops’ brief argues the lower court “erred in applying the Religious Freedom Restoration Act’s substantial burden test” to determine whether the mandate violates Lind and Janas’ free exercise of religion.

According to the RFRA test, they said, the mandate puts “substantial pressure on the Catholic businesses to violate their beliefs.” The bishops also believe the government “has no compelling interest in requiring these Catholic businesses to comply with the mandate.”

On March 22, Judge Algenon L. Marbley of U.S. District Court for the Southern District of Ohio dismissed the HHS lawsuit filed by Franciscan University of Steubenville, Ohio, and its co-plaintiff, the Michigan Catholic Conference.

Marbley ruled the case was not ripe for review, because he said the plaintiffs had yet to be injured by the HHS requirement and he noted the Obama administration has issued new rules governing the mandate that aim to address the objections of religious employers to being force to cover drugs and services they oppose on moral grounds.

Franciscan Father Terence Henry, university president, said in a statement that school officials were awaiting “details of those revisions with caution,” and noted the school also “vows to continue to fight for the freedom to practice its faith without government interference.”

On March 25, Judge Sharon Lovelace Blackburn of the U.S. District Court for the Northern District of Alabama dismissed Eternal Word Television Network’s HHS lawsuit. Blackburn said EWTN had sufficient standing to file the suit because of the “real prospect” the global network could be harmed by “a concrete regulatory mandate.”

However, she held the suit was not ripe for judicial review and she did not want to issue a final ruling because proposed rules governing the mandate have not be finalized. “At that point, if EWTN still has objections, it may then file suit,” she said.

Michael P. Warsaw, president and CEO, said EWTN “extremely disappointed” the judge didn’t rule on the constitutional issues at heart of the suit, but it was not surprised.

“In every lawsuit filed against the mandate, the government has made promise after promise to amend its unjust rules,” he said in a March 26 statement. “As a result, nearly everyone, including the courts, is left waiting to see what the government might or might not do to address the serious issues of conscience that have been raised since the first set of rules were published over a year ago.”

He added: “We ask for continued prayers as we consider our response to the court’s decision.”

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Contributing to this story was Jennifer Brinker, a reporter at the St. Louis Review, newspaper of the St. Louis Archdiocese.