In a decision handed down Friday, a district court in Massachusetts held that the Department of Health and Human Services was wrong to allow the U.S. Council of Catholic Bishops to impose religious restrictions on disbursement of federal funds. The program provided assistance to victims of human trafficking but the HHS allowed the bishops to prohibit its subcontractors from referring victims to contraceptive or abortion services.
Judge Richard G. Stearns hit the nail on the head:
To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
Here… the government defendants’ delegation of authority to the USCCB to exclude certain services from government funding “provides a significant symbolic benefit to religion,” in violation of the Establishment Clause.
In conclusion, he held that HHS had “impliedly endorsed the religious beliefs of the USCCB and the Catholic Church” through its practice of allowing USCCB to prohibit the 100+ subcontractors under that contract from proving such information. This decision is important in its relevance to the larger birth control debate that’s going on right now.
To be clear, this decision only binds the Massachusetts federal district court it came out of. That by no means makes it legally insignificant, though.
In specifically stating that the Roman Catholic Church’s opposition to birth control and abortion are religiously-based, the decision will hopefully prevent any faction of the RCC from claiming a secular purpose. (As in the case of the Hyde Amendment, which survived an Establishment Clause challenge with that convenient dodge).
The important distinction here is that, in this case, there was explicit state action in the disbursement of federal funding to a federal program. In the case of the birth control mandate, on the other hand, it’s less clear cut. The analogy still stands, though, because in the recent opinion, USCCB was free to not bid for government contracts, and in the case of the mandate, religious institutions are free to not take part in the secular economy.
The analogy also holds strong when you consider the people who are harmed by this conscience exception. The court here pointed out that
…the restriction on the use of [Trafficking Victims Protection Act] funds for abortion services and contraceptive materials is not a subject of truly voluntary participation; subcontracting organizations and trafficking victims cannot “opt out” of the restriction without shouldering the financial burden of doing so.
Though the refrain of “Just get another job!” is frequently heard in this debate, it’s not that easy in the real world. Nurses at Catholic hospitals do not have the simple option of “opting out” of their employment because the terms of employment aren’t optimal. This reality lends itself to the argument that conscience exceptions to the birth control mandate are unjust.
As something of a sidenote, we as a society also do not allow employers free license to determine the terms of employment. From required lunch breaks to bans on child labor, we have all sorts of laws that attempt to balance out the power dynamic in employment negotiations. The birth control mandate is no different.
USCCB’s website addresses human trafficking:
The Catholic Church has repeatedly condemned human trafficking, stating that human trafficking “constitutes a shocking offense against human dignity and a grave violation of fundamental human rights.”
But denying needed medical services to vulnerable people? That’s freedom of conscience.
