Almost a year has passed since the Supreme Court instructed President Obama’s Justice Depart-ment to work with the plaintiffs in reaching reconciliation on the Health and Human Services mandate. Recently, the Justice Department under President Trump asked the Fifth Circuit Court of Appeals for another 60 days to reach a settlement.
Trump officials say the delay is necessary because many staff positions have not yet been filled, and the issues involved are “complex.” But that hasn’t stopped the Justice Department from settling other lawsuits. Moreover, this business about the mandate being “complex” is a dodge: either the mandate is an affront to religious liberty or it is not.
The Obama administration angered Catholics when they learned that it was targeting such groups as the Little Sisters of the Poor. Initially, the Obama team tried to force the Little Sisters to pay for abortion-inducing drugs in their healthcare plan. Under pressure, the lawyers scaled back their demands, but they still sought to compromise the nuns by making them complicit in approving the mandate.
The most pernicious aspect of this issue is rarely discussed. Just how did the Obama administration manage to put the arm on the Little Sisters in the first place? By adopting the thinking of the ACLU.
It was the ACLU’s lawyers in California who first broached the idea that a Catholic institution is not legitimately Catholic if it staffs and serves a large body of people who are not Catholic. The Obama administration, under the tutelage of HHS Secretary Kathleen Sebelius—a rabid defender of partial-birth abortion—tailored the language of the mandate to meet that test. Therefore, because the Little Sisters do not discriminate against non-Catholics in tending to their needs, they are not considered Catholic!
In sharp contrast to his predecessor, Trump has shown himself to be religion-friendly. He needs to recognize, however, that the HHS mandate is a non-negotiable issue: If he wants to keep the support of Catholics, the HHS mandate must go.