Will Obama Fine Catholic Institutions Into Oblivion?

By Terence P. Jeffrey | April 18, 2012 | 11:30pm EDT

President Barack Obama shakes hands with Rev. Luis Leon as he leaves St. John's Episcopal Church in Washington, D.C. on his inauguration day, Jan. 20, 2009. (AP Photo/Charles Dharapak)

(CNSNews.com) - "You don’t want to buy it, fine. We’ll fine you into oblivion."

That, says a lawyer representing a number of Catholic institutions, is what the Obama administration will say to his clients if the federal courts do not strike down a regulation the administration has issued that requires all health insurance plans to cover sterilizations and artificial contraceptives, including those that induce abortions.

The Catholic Church teaches that sterilization, artificial contraception and abortion are wrong. For faithful Catholic individuals, or institutions, to comply with the administration's regulation, they would need to violate their consciences and the teachings of their church.

The lawyer, Mark Rienzi of the Becket Fund for Religious Liberty, says he is confident the federal courts will rule in favor of Catholics and religious liberty and against the Obama administration in cases challenging the administration's sterilization-contraception-abortifacient regulation. But he is also confident that if the courts do not rule against the regulation, the Obama administration will attempt to literally fine Catholic institutions in the United States out of existence.

"I think the court cases are all going to come out the exact right way, which is the president is not allowed to threaten religious liberty like this," Rienzi told CNSNews.com in an Online With Terry Jeffrey interview.

Rienzi, who holds an undergraduate degree from Princeton and a law degree from Harvard and who teaches at the Catholic University's Columbus School of Law, is working with the Becket Fund to defend Ave Maria University, Belmont Abbey College, Colorado Christian University and EWTN against the administration's regulation.

He believes the administration's regulation not only plainly violates the First Amendment guarantee of  the free exercise of religion but also a federal statute protecting that basic right that was sponsored by the late Democratic Sen. Ted Kennedy of Massachusetts and signed by Democratic President Bill Clinton.

"I think the federal law is so overwhelmingly clear here, that any honest lawyer analyzing the issue has to say the Religious Freedom Restoration Act forbids the government from doing this," said Rienzi.

Nevertheless, he believes the only way to stop the Obama administration from enforcing the law--and violating the religious liberty of Catholics--is to get federal judges to order the administration not to enforce it.

"I think until the courts tell them they can't, they're going to act like they can," said Rienzi.

Rienzi said that if he is wrong in his optimism that the federal courts will side with Catholics and against the administration on this regulation, Catholics could end up engaging in civil disobedience against an unjust law.

"Do you think we’re looking at a situation where Catholic institutions and Catholic individuals and those who share the Catholic moral view on these particular things are going to be engaging in civil disobedience against this law?" CNSNews.com asked

"If there’s no protection from the courts, I think it is possible," Rienzi said. "I do not—from what I’ve heard from the bishops--I do not expect them at the end of this to say: Oh, okay, I’ll pay for the abortion pills. I don’t think they will. I think they will say: Do what you have to do, but I’m not paying for those pills."

Rienzi said that if it does come down to civil disobedience, Catholic leaders will not be jailed like the leaders of the Civil Rights Movement sometimes were in the 1960s. Instead, they will find their institutions targeted by fines aimed at driving those institutions out of existence.

"I don’t see the administration going and grabbing [New York] Cardinal [Timothy] Dolan by the scruff of his collar and dragging him to jail," said Rienzi. "I think the administration’s approach would be: You don’t want to buy it, fine. We’ll fine you into oblivion. I think that’s really going to be the issue—is they are going to levy huge fines and then you’re going to have the issue of: Is the federal government really going to fine the Catholic church out of existence over this?"

View CNSNews.com's conversation with Mark Rienzi about what he sees as President Obama's attack on religious liberty here, and read the full transcript below:

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Terry Jeffrey: Hi, welcome to this edition of Online with Terry Jeffrey. Our guest today is Mark Rienzi of the Becket Fund for Religious Liberty.

Mark is a graduate of Princeton University and the Harvard law school, where he was an editor of the Harvard Law Review. He is now an associate professor at the Columbus Law School at Catholic University of America and is with the Becket Fund for Religious Liberty.

The Becket Fund is currently litigating multiple cases contesting the HHS regulation that would require virtually all healthcare plans in the United States to cover sterilizations, and all FDA approved contraceptives, including those that cause abortions.

Among those cases that the Becket Fund has filed is one on behalf of Belmont Abbey College, a Catholic school in North Carolina; Colorado Christian University, an evangelical college outside Denver; the Eternal Word television network, EWTN, a television network that was founded by a cloistered Roman Catholic sister, Mother Angelica; and Ave Maria University, a Catholic college in Florida.

Mark, thanks for coming in.

Mark Rienzi: Good to see you, Terry.

Jeffrey: This morning I went back and I took a look at Humanae Vitae, which was published by Pope Paul VI on July 25, 1968. And because a lot of this--of course, you are representing one Evangelical college--a lot of this has been a question about the Catholic teaching on contraception and sterilization and abortion and whether or not it is violated in a way that violates our Constitution’s understanding that religious freedom, by this regulation, I thought it’d be interesting just to look at what the Catholic Church actually said in one particularly definitive document about this.

Rienzi: Sure.

Jeffrey: They said: “We are obliged once more to declare that the direct interruption of the generative process already begun and, above all, all direct abortion, even for therapeutic reasons, are to be absolutely excluded as lawful means of regulating the number of children. Equally to be condemned, as the magisterium of the Church has affirmed on many occasions, is direct sterilization, whether of the man or of the woman, whether permanent or temporary. Similarly excluded is any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation—whether as an end or as a means.”

That’s sort of the heart of that encyclical letter. Now, the pope went on to say—interestingly—that he understood that this teaching which his church had always had was unpopular in the modern world and would be.

And he said this: “It is to be anticipated that perhaps not everyone will easily accept this particular teaching. There is too much clamorous outcry against the voice of the Church, and this is intensified by modern means of communication. But it comes as no surprise to the Church that she, no less than her divine Founder, is destined to be a ‘sign of contradiction.’ She does not, because of this, evade the duty imposed on her of proclaiming humbly but firmly the entire moral law, both natural and evangelical. Since the Church did not make either of these laws, she cannot be their arbiter—only their guardian and interpreter. It could never be right for her to declare lawful what is in fact unlawful, since that, by its very nature, is always opposed to the true good of man.”

That’s what the Catholic Church says.

Can there be any doubt that the Roman Catholic Church, number one, teaches that sterilization, artificial contraception and abortion is wrong, and, number two, that this isn’t something that the Catholic Church can change in its view, this is a permanent, absolute thing?

Rienzi: No, there’s no doubt about either of those things. It’s long been the teaching of the Church that that’s the case and the pope said that it may be unpopular—and, of course, the administration can’t stop telling us how wildly popular contraceptives are.

But the question here really isn’t: Is it popular or not? Our Constitution doesn’t limit protection of constitutional rights to people who have the popular view. Honestly, if you have the popular view, you don’t really need Constitutional protection. This is a religious belief that many people have and the question for the public is not does everybody agree or sign up for it? The question is simply: Can the government force people to violate their deeply held religious beliefs simply to facilitate somebody else having access to the drug? And the law is clear that they can’t do that.

Jeffrey: Yeah, and on February 15, after the president gave his most recent accommodation, the Federal Register published the final regulation and it quite literally says, as you know, that all non-grandfathered plans—once people roll over their healthcare plans--all new healthcare plans in the United States, whether they’re sold in the group market to businesses and their employers or whether they’re sold directly to individuals, must include “all Food and Drug-approved contraceptive methods, sterilization procedures, and patient education counseling for all women with reproductive capacity.” And among all Food-and-Drug-approved contraceptive methods are those which induce abortion, including as the Catholic bishops have pointed out ulipristal or Ella.

Rienzi: Yes.

Jeffrey: So is there any doubt that this regulation as finally promulgated on February 15th by the Obama administration directly orders Catholic individuals and institutions to violate the teaching of the Church that we were just talking about?

Rienzi: No, there’s no doubt about it. So, after the president finished his press conference where he talked a lot about accommodation, what he did that night was he issued a final rule that was the exact same rule as the old rule. So nothing changed. What he said was: Trust me. I promise I’m going to work out this other accommodation--which for a lot of reasons doesn’t actually fix anything. But he locked in the old rule after he had his press conference and said: But give me some time until after the election, and then I’ll figure out a deal for you. Of course, I don’t think many religious objectors in this context put a whole lot of weight on the president’s promise to do better after the election.

Jeffrey: So this is a direct and unambiguous conflict. On the one hand we have the settled teaching of a church which happens to represent about a quarter of the American people. And on the other hand we have the federal government, the President of the United States, ordering people to act in a way that violates the teaching of that church.

Rienzi: Yeah, there’s no doubt about it. We have a direct conflict. And what’s really sad about the whole episode, frankly, is there are some times when you can imagine a need for a direct conflict, right. The country’s being attacked and we’re going to war and we need everyone to sign up and fight. You can imagine that sort of direct conflict, there’s few ways around it. Here, it’s absurd because there’s no need for a direct conflict. The federal government gives these drugs out every day for free. They don’t need to drag in unwilling religious objectors.

Jeffrey: Well, let’s talk about the war principle. Is it not the case that there are some religions that teach, you know you cannot be involved in military combat or go to war, and that the government of the United States, even when we’ve had serious conflicts like World War II where the Japanese bombed Pearl Harbor, has exempted people of those religious faiths from serving in combat?

Rienzi: That’s exactly right. We have a long history in this country of respecting religion going right back to George Washington in the Revolution. Washington had an emergency. He needed men and he needed money. And Quakers said: Look, under my religion, I can’t give you money for the war and I can’t go fight the war. And Washington to his great credit--even in a dire emergency--he let them go because he recognized there’s something about who we are as a people and what we are as a nation that includes we will not force people to violate their religion.

Jeffrey: He respected the Quakers. When the original Constitution came out of the Constitutional Convention in Philadelphia and was sent out to the states, it did not include a bill of rights.

Rienzi: It didn’t, no.

Jeffrey: And all up and down among the states, there was discussion when they were preparing to have their ratifying conventions, and the fact that it lacked a bill of rights. And one of the issues that was particularly brought up was that it did not say anything expressly about protecting the free exercise of religion and conscience rights. It was debated all the way from Massachusetts down into the Southern states. It was a major issue in the state of Virginia where people like Patrick Henry were bringing it up.

Rienzi: Yeah, I mean and it wasn’t just an issue, it was really the issue at the time was the lack of the bill of rights. And many states when they ratified the Constitution did it on the expressed condition that congress would write a Bill of Rights which of course we did, which is what puts into law the protections that we’ve always recognized.

Jeffrey: And the First Amendment says what?

Rienzi: It says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Jeffrey: Which goes right along with freedom of speech and freedom of the press.

Rienzi: It does.

Jeffrey: So the Founding Fathers, the first thing—in order to ratify the actual Constitution that we have to live under as a nation--the first thing that that they wanted to make clear is that the federal government has no power to tell us that we can’t speak our minds, that we can’t print our ideas and publish them, and that we cannot practice our religion as we wish.

Rienzi: That’s exactly right. That’s part of the deal.

Jeffrey: Now, ever in the history of the United States of America has the President of the United States or a federal bureaucrat, such as Kathleen Sebelius, ordered Catholics to act against the teaching of the Catholic faith?

Rienzi: I would have to think about the whole history. Catholics weren’t very popular when we first arrived, so I don’t want to say that I’m never aware of them trying to order Catholics to violate their faith. But what I’ll say is this: The treatment of religion in this particular law is really singular. The president has basically said: I can look at churches, I can look out at over all the churches in this country, and I can pick the ones which have my kind of religion. You don’t hire people of other faiths, you don’t serve people of other faiths, you do it this way and that’s right, and I’ll respect your religion. But I’m not going to respect the religion of individual Americans or of different kinds of organizations just the kind of churches that I like. There’s no precedent of the government doing that.

Jeffrey: Now, Kathleen Sebelius, who’s directly responsible as secretary of HHS for issuing this regulation—she’s a Catholic. Of course, her archbishop has denied her the right to go to communion publicly, and said she must repent on her position on abortion publicly and confess before she can go to communion. The vice president of the United States, Joe Biden, is a Catholic. The former White House chief of staff, Mr. Daley, was a Catholic. Do you think there’s any possibility that the president did not understand that this regulation that he was promulgating and backing up was directly telling Catholics they had to act against a teaching of their faith?

Rienzi: I think he understood it fully. They’ve always understood it fully, which is why they’ve had these sort of half measures of religious exemptions that don’t really save anybody but the actual churches themselves. I think they’re fully aware of what it is. I’ll tell you one thing, though. Secretary Sebelius testified in the Senate last week. She was asked: Well, before you issued this rule, did you talk to the Department of Justice about whether it violated the Religious Freedom Restoration Act? And she said: No. And I can tell you why she didn’t call them. She didn’t call them because she didn’t want to hear the answer, which is that federal law prohibits the government from doing this.

Jeffrey: You think that the Office of Legal Counsel in Attorney General Eric Holder’s Justice Department would’ve actually constructed and written an opinion that said that this was illegal—if they were required to do so?

Rienzi: I think the federal law is so overwhelmingly clear here, that any honest lawyer analyzing the issue has to say the Religious Freedom Restoration Act forbids the government from doing this. So, maybe it’s overly optimistic, but I do think if they’d ask the Justice Department, the Justice Department would say what the law requires, which is that you can’t steamroll religious objectors like this.

Jeffrey: Now, Mark, each one of your cases talks about, is--your clients are religious institutions. They’re universities and colleges. But is it not true that under the First Amendment, an individual who has a moral and religious objection to this—you know an average Catholic parishioner in the pew—

Rienzi: Absolutely—

Jeffrey: --that his right or her right is being violated?

Rienzi: Absolutely, and I will tell you that I expect those people to start coming out of the woodworks soon. But that’s one of the things that’s particularly bad about the president’s view of religion. He seems to say if you’re a church, if you wear a nun’s habit or a collar, I’ll respect your religious liberty, but if you go out into the workforce, if you own a bakery or a pharmacy or something like that, you don’t get any religious liberty. Of course that’s not the way the law is. Religious liberty is the birthright of every American. It’s protected for individuals too. I’m Catholic. I’m glad the bishops and my church get religious liberty, but I get it, too. And there’s no way the president’s allowed to say: Oh, just the people with the collars get it.

Jeffrey: Right, and you get it whether you own a business or are an employer or not.

Rienzi: You get it whether you own a business or not, you get it whether you are a member of an organized official hierarchical religion like the Catholic Church, or whether you just have your own religious views. That’s what the Constitution and federal law protect—is the rights of individual Americans to make these decisions on their own.

Jeffrey: Right. Now, I think that one thing certainly the liberal press has not explained this to people or even reported it. But I’ve paid pretty close attention to the things that have been put out by the US Conference of Catholic Bishops about this issue, ever since in late August they initially put out their comments to the HHS. And it seems to me that every single time the bishops have formerly expressed their view in some sort of document, they’ve made this point—that it’s not just a violation of the religious freedom of a Catholic university or a Catholic school, or a Catholic hospital or a Catholic charity, it is also a violation of the liberty of private sector employers, of private sector nonprofits, of individuals, and of insurance companies. Is that your understanding?

Rienzi: Yeah, that’s absolutely--to the bishops’ great credit, they have not simply said: Hey, you have to make sure to protect me, and if you protect me, I’m good. They haven’t said that. Instead, they’ve said: Everybody has religious liberty, whether you’re actually part of a church, whether you’re affiliated with a church, or whether you’re just a regular American citizen operating, again a small business of any kind and you say: Look, my religion prohibits me from giving people drugs that will cause abortions. That person has every bit as much right to religious liberty as the pope does.

Jeffrey: Now, the Becket Fund was out of the box pretty early in this. You filed a suit on behalf of Belmont Abbey college, when?

Rienzi: We did. We filed that in November. And the reason we filed it, frankly, was from our view, from our looking at what the administration has done on this, we’ve never had any great confidence that the administration will follow the law, unless and until a court orders them to. I would love to be proven wrong. I think the president would make a very smart political move if he backed away from this. But I just haven’t thought it was all that likely. So we felt the need to protect rights.

Jeffrey: In that case and the others, you’re making an argument not only based on the Constitution itself but also on federal statute?

Rienzi: Yeah, both based on the First Amendment, but also based on a federal statute called the Religious Freedom Restoration Act. And that’s a law that passed in 1993. It was a bipartisan law co-sponsored by Ted Kennedy, signed by President Bill Clinton—not crazy pro-lifers, either of those two guys.

But the law simply says that where the federal government burdens someone’s religion, they can only do it if they have a compelling interest—and there’s no compelling interest here—or they’ve used the least restrictive means to serve that interest. And both of those factors—that’s why I feel so confident that Sebelius didn’t want to go anywhere near DOJ--because on both of those factors, they have no case. And I think they know it.

Jeffrey: So, each one of these cases are now filed at the Federal District Court level.

Rienzi: Yes.

Jeffrey: One in North Carolina, one in Colorado--

Rienzi: Yes, there’s Belmont Abbey College that’s in North Carolina. Colorado Christian University which is a non-denominational Christian university—non-Catholic place—is out in Colorado. Ave Maria, a Catholic school is filed in Florida. And EWTN, which is a Catholic broadcasting network—which is not officially part of the church, and which is run by laypeople—you know these are the people in the pews, not in the pulpits—they filed in Alabama. So, we’ve got a lot of suits. And there are a couple of other suits that have been filed by the Alliance Defense Fund in the past few days as well.

Jeffrey: And this regulation, insofar as everybody except this narrow group of nonprofit religious organizations that they’ve given a year’s leave, will take effect on August 1 of this year—so we’re talking about--

Rienzi: That’s exactly right, so for individuals who have a religious objection on August 1 of this year you have to start paying for drugs that cause abortions. For schools, for colleges that offer student plans, right? All the exceptions that the administration has talked about, is for policies offered in your capacity as an employer. Well, universities, of course, offer insurance to their employees, they do that. They also offer insurance policies to their students. There’s no one-year exception for that. There’s no extra time on that one, either. You have to start giving these drugs out to your students in August. So there are parts of this that take effect right away, parts that he’s hoping to kick past the election.

Jeffrey: So, quite literally, Ave Maria or Belmont Abbey would have to start paying for abortion pills for students in August?

Rienzi: Yes.

Jeffrey: Now, what is the timeline on these cases moving forward? I mean, when are we going to see some sort of resolution in the courts?

Rienzi: Well that’s difficult to predict. So far, what the administration has done, like it has done publicly, it has gone into the courts and has said: give me more time, give me more time. When they had to file a brief in the Belmont Abbey case last week, they had the chance to explain to the court why this is all constitutional and it’s all legal—they didn’t touch that. Instead, they just said: Look didn’t you just hear the president at his press conference? He said he’s going to fix it, you need to give us time to fix it, there’s no need to get into this now. So their strategy in court is the same as their public strategy which is they want to delay, they don’t want anyone to touch the merits of this thing, and they’re really hoping there’s no ruling from the court before the election.

Jeffrey: Before the election?

Rienzi: Yeah.

Jeffrey: Now, so in terms of just the standards of the way these things work, how long will it be where they’re actually substantive arguments presented in the Federal District Court level and judges actually making decisions?

Rienzi: It really depends. It could be a matter of a few months, it could be a couple of years. It depends on the judge, it depends on whether the judge agrees that there are some issues that don’t really need a whole lot of factual discovery. It really varies from court to court and case to case.

Jeffrey: So, it is quite possible that we can get through the November election without even any particular point in the country some sort of resolution being made on this in a federal court?

Rienzi: It’s possible, but I think there are enough people who are affected as of this August that I would say there’s a good likelihood that we’ll start getting some rulings before then.

Jeffrey: For example, in the cases coming up on the individual mandate which will be argued in Supreme Court next month, we’ve had different types of opinions in the lower courts. In these cases, it’s really just sort of the luck of the draw in terms of judges?

Rienzi: Sure, it’s the luck of the draw in wherever you’re located.

Jeffrey: So, you can get a Clinton appointee who’s very left wing, you can get a Bush appointee who’s an originalist or something. It’s just luck.

Rienzi: Let me say this. You could get a judge appointed by anyone and that judge could have any political leanings they want. One, I think the law is clear enough here that it’s not really going to matter the political leanings of the judge. And, two, I think if you look at how the Obama administration’s view of religion was received at the Supreme Court by its own appointees, where Justice Kagan said that it was an amazing, an amazing view of the First Amendment, and she wasn’t saying that in a good way—where the court said that it was an extreme and untenable view of the First Amendment. Even justices appointed by this president are able to see that the way he is treating religious liberty is impermissible.

Jeffrey: This is in the case of the Lutheran school in Michigan--

Rienzi: Yeah, the Hosanna Tabor case which is another Becket Fund case.

Jeffrey: Where the Obama Justice Department is literally saying that they could tell a Lutheran school who they could have as a “called” teacher, which in that religious denomination is literally considered a minister. They could literally order a church to reinstate a minister at the order of the federal government.

Rienzi: Right, and it’s not just that they thought they had the power to do that, they told the court and the First Amendment doesn’t really have—the religious clauses in the First Amendment, you don’t even have to look at those. And that’s what everybody rejected including former members of this president’s own Justice Department.

Jeffrey: But leaving aside whatever happens in the legislative realm, this case is going to go all the way to the Supreme Court?

Rienzi: It may, it may not. So in the individual mandate cases, you had judges coming out in different ways. Frankly, I think the federal law is clear enough here, I’m not sure we’re going to have a split of the circuits, I think it’s pretty clear they can’t do what they’re doing.

Jeffrey: You think everywhere it’s going to rule against them?

Rienzi: I do, the federal law is very clear here.

Jeffrey: Now, if the Becket Fund wins its cases protecting these religious colleges, how will that impact the right of individuals not to be forced to violate their religious beliefs?

Rienzi: It depends on the scope of the injunction that the court orders at the end of the case. It’s possible that the injunction from the court says: This entire rule is unconstitutional and, Secretary Sebelius, you may not enforce it against anybody. That’s possible and that would save everybody. It’s possible it will be more narrow. It’s tough to tell ahead of time.

Jeffrey: So, it’s possible nationwide or at least in some jurisdictions, these cases will not provide a clear remedy for the right of the individual to freely exercise their religion?

Rienzi: It’s at least possible that that’s true. Again, our argument is that the whole things is unconstitutional, they can’t enforce it constitutionally. But, theoretically, could you have a judge who says, I will protect just the plaintiff in front of me and nobody else, that’s possible.

Jeffrey: And you anticipate that suits will come forward from individuals challenging it, as opposed to--

Rienzi: I think they will. I’ve heard a lot about individuals realizing after the accommodation which of course didn’t include the individuals at all, realizing: Oh my goodness, now I’m really going to be paying for these things in a matter of months. So, I do expect that to happen.

Jeffrey: Would they—would an individual have standing at this point just like Belmont Abbey would?

Rienzi: Absolutely, they would have standing. If you look at the individual mandate cases, right? All of those cases are about a mandate that goes into effect in 2014. All of them went forward on standing grounds. They all had standing. Here, individuals can look at the calendar and say: Boy, I’m a little less than six months away from paying for these drugs. That’s more than enough for standing.

Jeffrey: So, individuals and Catholics right now if they wanted to could file suit in federal court saying this regulation is a violation?

Rienzi: If you are somebody who provides insurance to somebody—if you buy an insurance policy for your employees and you have a religious objection to buying drugs that perform or cause early abortions, then you absolutely have standing to challenge this mandate.

Jeffrey: Ok, now the Supreme Court next month will hear the Obamacare cases and my understanding is that by the end of June, they’ll issue their opinions.

Rienzi: Yep.

Jeffrey: --in the cases, and we’ll know whether they strike down the mandate, what they do with the rest of the law. But my understanding is that they issue a ruling that narrowly strikes down the mandate without striking down the entirety of the Obamacare law, this problem persists?

Rienzi: I think that it’s possible. It’s sort of three real choices: One, they can say that the government’s right and that this is perfectly constitutional, and uphold the whole law. Two, they could say that the individual mandate is unconstitutional and therefore the entire law goes down. Or, three, they could say the individual mandate is unconstitutional, but we leave the rest of the other stuff in place. If they take that third route, then yes we’re still at risk. If they say it’s unconstitutional and the whole ship sinks, then obviously it would solve it.

Jeffrey: If the whole bill is thrown out, but if they just throw out the mandate and leave the rest of the law standing, this preventive services regulation would still apply to all insurance companies?

Rienzi: It would and our cases would still go forward. In other words, if the Supreme Court says this is ok under the Commerce Clause, that doesn’t have anything to do with our cases, really. Our cases would still go forward and it’s possible it’s fine under the Commerce Clause, but then we win our federal law and free exercise arguments.

Jeffrey: Right, now if the mandate wasn’t there, and an individual would have a choice between not buying insurance or buying insurance that covered these things?

Rienzi: That’s exactly right, and the mandate operates both on individuals and on employers. So for Belmont Abbey College, they face a mandate that says: You must buy insurance for your employees and it must include the pills that cause abortions. And if you don’t buy the insurance, we’re going to fine you $2,000 per employee per year. So, hundreds of thousands of dollars in fines.

Jeffrey: So, unless the employer mandate is struck down, too, Belmont is still in that box?

Rienzi: Yeah, unless the whole law is struck down, Belmont Abbey is still in that box.

Jeffrey: Ok, now assuming that this thing is not settled in the courts definitively—before it start actually rolling into implementation, you have most of the Catholic bishops in this country have had letters read from the pulpit in Catholic churches around the country where they have a very dramatic line. The letter says: “We cannot—we will not--comply with this unjust law.” Do you think we’re looking at a situation where Catholic institutions and Catholic individuals and those who share the Catholic moral view on these particular things are going to be engaging in civil disobedience against this law?

Rienzi: If there’s no protection from the courts, I think it is possible. I do not—from what I’ve heard from the bishops, I do not expect them at the end of this to say: Oh, okay, I’ll pay for the abortion pills. I don’t think they will. I think they will say: Do what you have to do, but I’m not paying for those pills.

Jeffrey: Well they can’t, can they? I mean, they say they can’t. And you know, you look at Humanae Vitae, how could they?

Rienzi: I agree. I don’t think consistent with Humanae Vitae, the bishops could give out these pills.

Jeffrey: Now, in the Civil Rights Movement in the 1960s, we saw people like Martin Luther King thrown in jail. He was thrown in jail in Birmingham for marching without a permit. But people were thrown in jail all across the south for civil disobedience against segregation laws which discriminated against equal protection of the law for African Americans. Are there legal precedents and ways of dealing with this that arose out of the Civil Rights Movement that you think will apply to Catholics and Catholic bishops if they’re forced into a position of engaging in civil disobedience against this law?

Rienzi: I’m not sure if I would say that there are legal precedents from that. I think it would be a little bit different. I don’t see the administration going and grabbing Cardinal Dolan by the scruff of his collar and dragging him to jail. I think the administration’s approach would be: You don’t want to buy it, fine. We’ll fine you into oblivion. I think that’s really going to be the issue—is they are going to levy huge fines and then you’re going to have the issue of: is the federal government really going to fine the Catholic church out of existence over this?

Jeffrey: So, unless the legislature can repeal—or unless there’s a government in Washington that’s ready to repeal the law and capable of repealing the law, you think that’s what’s going to happen, that they’re going to fine the Catholic Church?

Rienzi: No, because I think the court cases are all going to come out the exact right way, which is the president is not allowed to threaten religious groups like this. If the court cases go the wrong way, then I expect the bishops to refuse.

Jeffrey: You have tremendous confidence in federal judges.

Rienzi: I do. Well, on this one it is really clear. And again--

Jeffrey: But if not, we’re in a situation where the federal government is literally capable of fining Catholic institutions into bankruptcy?

Rienzi: Absolutely, that is the power that Sebelius and President Obama have asserted here, is that they can fine you. Notre Dame would face ten million dollars in fines each year.

Jeffrey: Ten million dollars?

Rienzi: Each year.

Jeffrey: And the schools that you’re representing, they would face fines of that type?

Rienzi: Not quite that size, because they’re smaller schools, but hundreds of thousands of dollars.

Jeffrey: So, if you don’t win in court, or these court cases are protracted, we’re looking at a situation where the Obama administration—or if there’s a president in power that’s ready to enforce this—they’re saying to the Catholics: You must pay for abortions, you must pay for sterilizations, you must act against the teaching of this church, or we’ll try to fine you into nonexistence.

Rienzi: Exactly. And what will that result in? Well, it’ll push the Catholics out of the public square, right? You won’t run a hospital, you won’t run a school, you won’t run a soup kitchen, you’ll have to just go back to your cloister and be Catholic over there, but you won’t be able to be Catholic in the public square.

Jeffrey: Will the civil disobedience extend to not paying the financial penalty?

Rienzi: It could, and to be honest I have no idea what their plan is or what they would do, but sure it could.

Jeffrey: Do you think that Kathleen Sebelius and President Obama have thought out the endgame of this? Do you believe that they think the Catholics are going to blink and back down and decide: Oh, what the heck, we’ll just violate the teachings of our faith. Or do you think they’re actually ready to use this kind of government power to force Catholics to act against the teaching of their faith?

Rienzi: I think they have asserted that they have the power and they’ve had several chances to modify it, and the one thing that’s clear from Sebelius’s press release saying we’ll give you a year to adapt, from the president’s press conference about his alleged accommodation that doesn’t really fix anything--the one thing they’re not willing to back away from is the idea that they the government has the power to force these churches to do this. So do I think they could do it? I’m used to taking people at their word.

Jeffrey: They want to push it past the election but you believe they will enforce it in the end?

Rienzi: I think so. They have pushed very hard to put it on the front burner and to assert this right. And I think until the courts tell them they can’t, they’re going to act like they can.

Jeffrey: Now, in Congress, just before Christmas they passed the continuing resolution that funds the government through September 30 of this year. They had an opportunity if they had wanted to, to put language in there that would’ve forbidden spending any money to implement this regulation. They did in fact put provisions in the bill to forbid the implementation of other regulations. They did not do it for this one. I asked a question of the Speaker of the House John Boehner through his spokesman, Michael Steele, whether or not the Speaker of the House would consider forbidding funding of the implementation of this in the new spending bills coming up on September 30, and their answer was it would be on the table. Do you think that’s a viable option and that Congress ought to consider forbidding the administration from spending money to implement this regulation as of the end of this fiscal year?

Rienzi: Yeah, I do. We have a system of checks and balances for a reason and the power of the purse originates in the House of Representatives, and the House of Representatives can say: We will not give you any funding bills. I mean, it’s going to be a question of who blinks again. But they can say: We will not pass a funding bill that includes funding for this.  And they’ve got the constitutional power to do it and the question will be do they have the steel and the nerve to stand firm on that and refuse. But I think over an issue of principle like this, I would hope that they would.

Jeffrey: If House Speaker John Boehner were to do that, lead the House of Representatives in passing a funding bill for fiscal 2013 for the department of HHS that forbid them from spending money to implement this regulation, then would it not be a choice of Harry Reid and Senate Democrats and the president of the United States whether they would shut down the government of the United States in order to maintain the power to force Catholics to act against their faith?

Rienzi: I think that’s exactly what it would set up—is it would say to the president and Harry Reid: Is your desire to be able to force religious objectors to do this so strong that you will otherwise refuse to fund the government and shut it down over it. And we’ll see.

Jeffrey: Do you think they’d be willing to do that—to shut down the government in order to force John Boehner to give them the money to force the Catholic Church to act against the teachings of their faith?

Rienzi: I think they’d be willing to do it because I think they’d be confident that they can spin the story as it’s the Republicans shutting down the government and not them. And whether that really happens will be up to how closely Americans pay attention to the news.

Jeffrey: You believe in that kind of crisis--will pay attention to the news – do you believe in that kind of crisis, the liberal media would actually explain what was going on?

Rienzi: No.

Jeffrey: You think they would not tell people?

Rienzi: Well, they might explain it, but I think—Do I think Boehner’s story would win over Obama’s story? I would like to think it would and I would say people should give it the best shot they can to get it out and talk over the media. But I would assume the media would be more likely selling President Obama’s story.

Jeffrey: In the liberal media, they would?

Rienzi: Yes.

Jeffrey: So, other forms of media would have to get this story out?

Rienzi: Of course, absolutely.

Jeffrey: At this point it would probably be the biggest story in the country?

Rienzi: I think so. I think it would be—it would obviously be a big deal. And look this issue, this fight over whether the government can force religious objectors to violate their conscience has become a huge issue. This is not something that is now under the radar. This is very much on people’s radar screens. And I think the president made a mistake in the sense of he thinks birth control is really popular. Well, birth control is really popular, but that doesn’t forcing unwilling people to give it out is popular.

Jeffrey: Right, they want to talk about whether this is a question of whether women can access contraceptives which really isn’t the issue.

Rienzi: It’s really not the issue.

Jeffrey: It’s a classic fallacy of mistaking the question. The question here is whether they can force someone else to pay for it in violation of their religious beliefs.

Rienzi: That’s exactly right. It’s not only not the issue, it’s really laughably transparent for anyone to say there’s an access problem in this country. The federal government gives out these drugs to millions of people every day for free. They know how to give it out if they want. If they think there’s an access problem, they can give it out. But I’ve heard the president nine times say: Oh, 98 percent of women in America use it. There’s no access problem if 98 percent of the people have it. And that statistic is not right.

Jeffrey: In their statements about this, the Catholic bishops, in addition to insisting that this is about an individual right to the free exercise of religion, they’ve also made some very dramatic statements about what this means in terms of the history of the United States of America, in the founding principles of our country, and they literally said this is an “unprecedented attack” on freedom of religion.

Rienzi: Well it is unprecedented. It’s unprecedented both in terms of how they’ve done their religious objection where the president says I can sort of pick religious groups and the churches that look like I think churches should be will get one kind of treatment and everybody else gets another, that’s unprecedented. But it’s unprecedented also the government looking to private citizens and saying: You must buy people something that violates their religion, and if you don’t I’ll fine you into oblivion. There is no precedent for that. The government’s never asserted that power.

Jeffrey: And to say to individuals: You must buy it in your own insurance plan whether you like it or not.

Rienzi: Exactly. And that’s what really started with the founding, right? The founders thought that the checks and balances, the limits on Congress’ power would protect individual liberty and that’s really what the case in March in the Supreme Court is about—is do you hold Congress to the commerce power in order to protect individual liberty because if you don’t, what happens? Government tends to steamroll individual liberty.

Jeffrey: And to that point, back in 1968, in this encyclical letter Humanae Vitae by Pope Paul VI, he said he knew it was going to be unpopular. He said that he had to teach it because it was the natural law. He had no choice. The Church had no choice. This is the teaching of the Church. The Church believes this is true. This is inalterable.

But he made another point, which is this: “Finally, careful consideration should be given to the danger of this power passing into the hands of those public authorities who care little for the precepts of the moral law. Who will blame a government which in its attempt to resolve the problems affecting an entire country resorts to the same measures as are regarded as lawful by married people in the solution of a particular family difficulty? Who will prevent public authorities from favoring those contraceptive methods which they consider more effective? Should they regard this as necessary, they may even impose their use on everyone. It could well happen, therefore, that when people, either individually or in family or social life, experience the inherent difficulties of the divine law and are determined to avoid them, they may give into the hands of public authorities the power to intervene in the most personal and intimate responsibility of husband and wife.”

That’s the pope in 1968. Now, the pope is looking out across the entire world. Now, at that time we had communism was quite dominant, and in parts of the world it remains dominant. You have in China, a one child per couple policy that is enforced through coercive sterilization and abortion, according to President Obama’s own State Department. So in terms of what the pope was talking about in 1968 is taking place in China today.

Rienzi: For sure.

Jeffrey: Okay, given this contempt for the idea of individual religious liberty, and the apparent willingness of the Obama administration to force Catholics to act directly in contradiction to a settled teaching of their faith, do you think that there’s a danger that if they establish this as a precedent, that an American administration can order people to directly contradict the teachings of their faith, that this won’t be the last time it happens, that in fact there will be more severe and more dramatic incursions against the individual liberty of people to practice their faith?

Rienzi: I think it’s absolutely clear. And that’s why you see people not just Catholics, people from all religious faiths, coming out, people who may be fine with contraceptives, coming out, saying: Wait a second, government doesn’t have that power.

The next step on this slippery slope is the government forcing you to pay not just for chemical abortion and the early abortifacient drugs, but for surgical abortion. And there’s a bill pending in Washington state right now that would require every health plan offered by every employer to pay for abortions. If you’re willing to pay for your employees to have a baby, you have to be willing for them to pay to kill the baby. And that’s where we’re going, and we’re not going a long, long time from now, we’re going now.

Jeffrey: And fundamentally, there’s no difference in principle, if this principle is established?

Rienzi: There’s absolutely no difference in principle, and that’s why the religious liberty principle is so important, because that’s the stopping point that says: Look, people want to celebrate choice in this country. Go ahead, celebrate choice. But there is a far difference from saying I have the right to have an abortion to saying I have a right to grab an unwilling person and say you perform the abortion, or you pay for the abortion, or you be involved in the abortion. That person is supposed to have choice, too. And we need to protect every individual’s right, not just the people who exercise the rights that Democrats and liberals like.

Jeffrey: Mark Rienzi of the Becket Fund for Religious Liberty, thank you very much.

Rienzi: Thank you, Terry.

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