Franciscan University undaunted after HHS suit dismissed

Steubenville, Ohio, Mar 25, 2013 / 16:01 pm

Although a judge has dismissed Franciscan University of Steubenville's lawsuit against the federal contraception mandate, the school says it will continue to fight for its religious liberty.

"We will not stop fighting this unjust mandate, this unjust attack on our first freedoms," said
Michael Hernon, vice president of advancement at Franciscan University.

"As a university, we believe this goes right to the heart of who we are as a Catholic institution. We cannot and will not back down."

Hernon told CNA March 25 the university finds it "repugnant" to follow new federal regulations requiring that its health care plan provide employees access to sterilization and contraception, including abortifacient drugs.

The regulations are "treating pregnancy as if it was a disease," he said. Cooperating with them "would require us to say that a child is a disease," he said. "That's just wrong."

U.S. District Judge Algenon L. Marbley dismissed the case on March 22 on the grounds it lacked standing. He said the case was not "ripe" because the groups could not prove they would suffer harm in light of the Obama administration's pledges to make accommodations for those with religious and moral objections.

Franciscan University and the Michigan Catholic Conference were parties to the suit. They were represented by the law firm Jones Day in their challenge to the federal rules.    

In May 2012, Franciscan University had dropped its student health care plan because it feared the mandate would force it to compromise its Catholic values. Judge Algenon said the university was "fleeing a phantom specter" spawned by its "unsubstantiated fears." He said this was especially the case given the government's promise it would not harm the plaintiffs.

He contended that it was a self-inflicted injury for the university to "prepare for an eventuality that always appeared unlikely to ever occur."

In response, Hernon said he was "incredulous" at the judge's argument in light of the Obama administration's continued actions.

"This is not about some future specter. It is about the law as written today, what we are basing our lawsuit on," he said. "They have promised they will make other, future changes, but every change they have made thus far has  not accommodated our religious liberty."

He said Franciscan University believes that under the new rules its insurance company will be required to provide free of charge the objectionable services to all its employees. Hernon was skeptical of the Obama administration's claims that the new rules would remedy earlier objections from those who did not want to cooperate with or pay for providing the coverage.

"It is nothing more than an accounting gimmick or a shell game to think that there is not going to be funding for those services coming from university employees and from us as an employer," he said.

While the revised rule purports to expand the definition of religious employer, Hernon said it is "still debatable" whether Franciscan University qualifies. He said the Health and Human Services department said the language was not intended to increase the number of people exempted.

"They themselves are admitting that they only really want to exempt houses of worship," he said.

The Department of Health and Human Services is accepting public comment until April 8 before it issues the next part of its decision. The one-year safe harbor provided to some religious organizations ends Aug. 1. The federal rules will apply to plans created after that date.

The rules will also "grandfather" in some insurance plans which allows for the plans to maintain their current provisions. Employers will not be penalized for lacking the mandated coverage – provided that they do not change their health plans significantly.

However, Franciscan University is concerned that its grandfathered status "ties our hands," president Father Terence Henry, TOR, said March 22.

"Since many changes to our plan would cause it to lose grandfathered status, it denies both our employees and the university opportunities to save money and enact plan changes appropriate to our changing needs for coverage. In effect, this makes us second-class citizens because of our faith."

Hernon said any health plan changes the university makes to respond to an expected rise in health care costs could remove what protections the grandfathered status has.

He also voiced concern about the university's "many alumni and friends" who are "people of conscience" whose own businesses and organizations are threatened by the mandate. He said the mandate would force these people to violate their consciences and "pay for services that they deem morally or religiously objectionable."

Fr. Henry said the school has the right and "the duty" to re-file its lawsuit at the appropriate time.

The Michigan Catholic Conference said the court simply delayed the lawsuit and did not rule on its merits. The conference said it could again bring similar legal claims against the administration once the promised mandate changes are made and said it would evaluate "all its options" in light of the court decision.

Hernon added that lawsuits against the HHS mandate in other jurisdictions have "strong promise" and he hoped that they will prevail.