EWTN to appeals court: religious freedom at stake in HHS mandate case

Atlanta, Ga., Feb 4, 2015 / 14:20 pm

A federal appeals court heard oral arguments Wednesday over whether the EWTN Global Catholic Network should be required to abide by the federal contraception mandate in violation of its religious convictions.

"This is about the broader issue of religious freedom," said Michael Warsaw, chairman and CEO of EWTN, after the hearing.

"We have a right to be able to bring our faith to bear on everything we do, on every aspect of our lives," he told CNA Feb. 4. "And I think that's what's at stake here."

Founded by Franciscan nun Mother Mary Angelica, EWTN is the largest religious media network in the world, reaching over 230 million television households in more than 140 countries and territories.

The network includes television, radio and a publishing arm, along with a website and both electronic and print news services, including Catholic News Agency.

EWTN is challenging the federal HHS mandate, which requires most employers to either provide or facilitate employee insurance coverage for contraception, sterilization and some drugs that can cause early abortions.

More than 300 plaintiffs have filed lawsuits across the country charging that the mandate violates federal and constitutional protections of religious freedom. As a Catholic network, EWTN abides by the Catholic Church's teaching against contraceptives, abortifacients, and sterilizations. It says it cannot cooperate with such practices.

EWTN initially filed a lawsuit against the regulation in 2012. However, that suit was dismissed on technical grounds in March 2013. The current lawsuit was filed in October 2013.

In June 2014, U.S. District Court Judge Callie V.S. Granade of Mobile, Ala., ruled against EWTN, and the network filed an appeal. The Eleventh Circuit Court of Appeals then issued a temporary injunction protecting EWTN from the mandate while the case continued in the court system, protecting the network from penalties of $35,000 per day during that time.

The Feb. 4 oral arguments were heard by appellate court judges Jill A. Pryor, Gerald Bard Tjoflat, and R. Lanier Anderson.

EWTN made the argument that the government is being arbitrary in its granting of religious exemptions to the mandate.

"What the government is saying is that EWTN isn't religious enough, it's not entitled to the same religious freedom as the Catholic Church which it serves," Lori Windham, the lead attorney for EWTN in the case, argued before the court. Windham serves as senior counsel for the Becket Fund for Religious Liberty.

The U.S. Supreme Court in June 2014 ruled against the mandate as it applied to Hobby Lobby, a closely-held corporation whose owners also had religious objections to some of the mandate's requirements.  

While the Hobby Lobby case may offer a helpful precedent, Warsaw explained that EWTN's situation is somewhat different.

The Hobby Lobby decision specifically dealt with "closely-held" for-profit businesses, while EWTN is a non-profit plaintiff. As a result, it relies upon the 1993 Religious Freedom Restoration Act.

Under that law, the government may not place a "substantial burden" on the free exercise of religion, unless doing so is the "least restrictive means" of furthering a "compelling government interest."

In the oral arguments, Windham said the mandate violated the Religious Freedom Restoration Act.

The mandate violates EWTN's "sincere religious belief" and puts a "substantial burden" on the company with over $12 million per year in fines, she argued.

Warsaw also emphasized that point.

"That is a substantial penalty, no matter the size of your organization," he said. "For EWTN, a $12 million fine is really a crippling fine. I've described (it) in other circumstances as really being a death penalty for businesses, and that's really what the government, I think, has intended."

During the oral arguments, Judge Anderson questioned Windham about the government establishing a "compelling interest" for the mandate and using the "least restrictive means" to further that interest.

The judge remarked that "the crux of the case" is around those two burdens of proof on the part of the federal government.

Windham noted that even if the government establishes a "compelling interest" for a contraception mandate, it could still achieve its goals in a way that is less restrictive on religious exercise, by adjusting its regulations to accommodate religious companies like EWTN.

"This is a Catholic media network," she said. "Sharing the faith is what they do."