Zubek vs. Burnell - A Spiritual Reflection

Roe v. Wade (January 22, 1973) was the landmark decision by the United States Supreme Court on the issue of abortion. The Court ruled 7–2 that a “right to privacy” under the Due Process Clause of the 14th Amendment extended to a woman’s decision to have an abortion, however, that this right must be balanced against the state’s two legitimate interests in regulating abortions: protecting women’s health and protecting the potentiality of human life (emphasis mine).


Zubik v. Burwell was a recent case before the United States Supreme Court which considered whether religious institutions other than churches should be exempt from the contraceptive mandate, a regulation adopted by the US Department of Health and Human Services (HHS) under the Affordable Care Act (ACA) that requires non-church employers to cover certain contraceptives for their female employees. Churches were already exempt under those regulations. On May 16, 2016, the Supreme Court vacated the Court of Appeals ruling in Zubik v. Burwell and the six cases it had consolidated under that title and returned them to their respective courts of appeals for reconsideration.


Zubik vs. Burwell is a complex mix of seven cases, argued in four Courts of Appeals and involving 37 petitioners. It is critical to realize that these challenges to the HHS mandate involve much more than just contraception but go to the heart of “Freedom of Religion” and religious liberty. Thus, as Catholics, we need to pay attention - and get involved.

In a 2016 article, Father Frank Pavone wrote that the HHS mandate “brought together a diverse group of opponents.” This coalition included Catholic priests (example, “Priests for Life), religious communities (example, ‘The Little Sisters of the Poor”), Catholic Charities in Washington, D.C., Pittsburgh and Erie.


This is not just a Catholic issue. Other petitioners include Baptist and non-denominational universities in Texas and Oklahoma, a Presbyterian college in Pennsylvania as well as numerous religious high schools. It includes Reaching Souls International, a non-denominational Christian group who assists African children orphaned by civil war, HIV/AIDS, and malaria. Reaching Souls bases its work on a biblical definition of “religion that is pure and undefiled before God” – that is “to visit orphans and widows in their affliction.”

There’s AWESOME (Assistance With Education,Shelter, Organization, Money Management and Employment), a program run by the Prince of Peace Center in Farrell, PA that helps people achieve independence. Southern Nazarene University boasts a winning NCAA Division 2 basketball team, 2,000 students majoring in everything from business to theology and committed to the inviolable belief in the sanctity of life.


Friend-of-the-court briefs filed afford an even better understanding of how seriously religious liberty is threatened by the HHS mandate. Briefs were filed by World Vision; Union of Orthodox Jewish Congregations of America; National Jewish Coalition on Law and Public Affairs; Church of Jesus Christ of Latter Day Saints; International Society for Krishna Consciousness; Orthodox Church in America; American Islamic Conference and Lutheran Church, Missouri Synod.


Arguments and conclusions on three key points of the cases are important:


  • Does the HHS mandate pose a substantial burden on religion?
  • Does the government have a compelling interest to pursue this mandate?
  • Does the government, to pursue that interest, utilize the least restrictive means necessary to accomplish its goals?


The Supreme Court has called the lower courts, from which the original judgments came, to review these cases again. Whether there will be a unified outcome or more division among the courts is an open question. Each of the four court cases have unique circumstances.

Guidance and questions have been provided through the deliberations of the Supreme Court with additional information provided in the briefings the Supreme Court requested from petitioners and from the government. The heart of the matter is the distinction between “freedom of worship” and not necessarily “freedom of religion.” Some have alleged that the current administration has tried to to sow confusion between the two with the idea is that “Freedom of Worship” keeps us in the church building. In effect, it says that religious voices have no place in public discourse or the free exchange of ideas in the public square. Full transparency: Some prominent Catholics have said that this is “conspiracy theory” (See Father Thomas Reese, S.J.’s article on “Freedom of Worship vs. Freedom of Religion”). Other prominent Catholics have said just the opposite - that this is exactly what the administration, and others, are doing (See Archbishop Chaput’s article on threats to religious freedom).


Whatever you believe, such a diverse group indicates that something about the HHS mandate seems ominous, so much so that the plaintiffs represented “a wide array of religious beliefs, all united by the proposition that the government should not be instructing us in our faiths.”


We do not believe a federal bureaucrat should be telling us what is - and what is not - allowed by our churches’ teachings. Now we need four Courts of Appeal to agree, or all of this ends up back at the Supreme Court - a court whose future ideological makeup is dependent on this year’s presidential/congressional election results.

In the meantime, if I might offer some unsolicited advice: Write a letter. Send an e-mail. Pick up a phone and make a call. Make your Catholic voice heard in the public square.

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