Ave Maria University Sues HHS over Contraception Mandate

By Matt Cover | February 21, 2012 | 3:46 PM EST

HHS Secretary Kathleen Sebelius and President Barack Obama at the White House on Feb. 10, 2012. (AP Photo/Susan Walsh)

(CNSNews.com) – Florida’s Ave Maria University has filed suit against the Obama administration to block and overturn the controversial Health and Human Services (HHS) regulation that would force all health insurance companies to offer sterilization and contraception, including abortifacients, free of charge.

University President Jim Towey, former head of the Office of Faith-Based Initiatives in the Bush White House, said it was a “sad day” when the government was forcing citizens to sue their government to protect their religious freedoms.

“It’s a sad day when an American citizen or organization has no choice but to sue its own government in order to exercise religious liberty rights guaranteed by our nation’s Constitution,” he said on a conference call with reporters on Tuesday.

“As an American Catholic, I am in disbelief that I have to choose between being a good Catholic and a good citizen,” said Towey. “I will not, and the university will not, accept this false choice.”

Towey called the White House’s Feb. 10 compromise proposal for the regulation a “sleight of hand” that would not keep Ave Maria from having to fund contraceptive/abortifacient coverage for its employees.

“This sleight-of-hand maneuver by the government fooled no one,” Towey said. “Ave Maria University pays 95 percent of the cost of the health plan we offer [to] our 129 employees. It’s absurd for the federal government to suggest that these new pharmaceuticals will be free because they aren’t free now and, in fact, the administration’s own argument for free contraceptive drugs is that they place a financial burden on women.”

“And so, under this federal mandate, Ave Maria University would be paying for these drugs if we complied with the law, so we will not [comply],” he said.

Towey said that Ave Maria was prepared to stop offering health care coverage to its employees and pay the $2,000-per-employee fine if necessary every year.

Ave Maria filed suit with the Becket Fund for Religious Liberty, which has also filed suit on behalf of the EWTN Catholic network, Belmont Abbey College, and Colorado Christian University challenging the Obama sterilization mandate.

(AP Image)

Kyle Duncan, Becket fund general counsel, explained that the compromise Obama offered – forcing insurance companies to pay for contraception services themselves – never went into effect when HHS finalized its final rule, meaning that while the president had said organizations like Ave Maria would be exempt, they currently are not.

“On February 10, the mandate – the contraceptive mandate – actually became final without change,” Duncan explained. “All of this talk of a compromise and an accommodation, all that is, is a promise in the future by the administration to maybe engage in some additional rulemaking.”

“That’s not the law. What the law is is the contraceptive mandate,” said Duncan.

Duncan is correct. In its final rule, the Obama administration made no changes to the mandate’s narrow religious exemption that only protected religious organizations, such as churches or seminaries that primarily employ and serve members of their own faiths.

“A group health plan (and health insurance coverage provided in connection with such a plan) qualifies for the exemption if, among other qualifications, the plan is established and maintained by an employer that primarily employs persons who share the religious tenets of the organization,” the final rule states.

Cardinal Timothy M. Dolan is the archbishop of New York and the president of the U.S. Conference of Catholic Bishops. (AP Photo)

The regulation also says that organizations such as Ave Maria will be given a one-year “safe harbor” from enforcement, and that during that time the administration will try to devise some kind of compromise that allows female employees to get free contraception through their insurance without a religious employer having to pay for it.

“With respect to certain non-exempted, non-profit organizations with religious objections to covering contraceptive services,” the regulation explains, “guidance is being issued contemporaneous with these final regulations that provides a one-year safe harbor from enforcement by the Departments.”

“Before the end of the temporary enforcement safe harbor, the Departments will work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage,” reads the Obamacare regulation.

Towey said that in announcing the compromise, but not including it in the final rule, the administration had merely provided a “fig leaf” for its left-wing Catholic allies.

“What was announced as an accommodation or compromise was simply a fig leaf to provide a little bit of cover for some left-of-center Catholics and some other allies of the administration,” said Towey.

Catholics attending Mass. (AP Photo.)

The regulation was initially finalized on Jan. 20. That action sparked opposition nationwide from various religious groups, including the U.S. Conference of Catholic Bishops (USCCB), and at least 158 members of Congress. This week, a list of 2,500 religious leaders of various denominations who oppose the regulation was released by the Family Research Council.

To try to quell the opposition, President Obama announced on Feb. 10:  “Today, we've reached a decision on how to move forward.  Under the rule, women will still have access to free preventive care that includes contraceptive services -- no matter where they work.  So that core principle remains.  But if a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company -- not the hospital, not the charity -- will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.”

Under this solution, all health-insurance plans in the United States would be forced by the government to cover sterilizations, contraceptives and abortifacients free of charge.

The USCCB said the so-called solution was “unacceptable.”

“It would still mandate that all insurers must include coverage for the objectionable services in all the policies they would write,” the U.S. Conference of Catholic Bishops said in a statement.