A quick response to Prof. Cafardi

Over at America, Prof. Nicholas Cafardi, whose work is probably familiar to many MOJ readers, has a post that is critical of the decision by Catholic institutions' to file lawsuits challenging the preventive-services mandate.

Prof. Cafardi writes, "what these lawsuits come down to is an attempt to impose the church's teachings on their employees, Catholic and non-Catholic, who do not themselves choose to follow those teachings. That’s not religious liberty, though; that’s religious control."

With all due respect, this charge misses the mark. These lawsuits do not, in any way, limit the ability of employees to purchase or use contraceptives, nor do they, in any way, limit the ability of Congress or the Administration to employ another way -- besides making objecting religious employers bear the cost -- of subsidizing contraceptives for women who work at such institutions. The imposition here is coming not from the plaintiffs, but from the Administration.

Prof. Cafardi also writes: "HHS has already, at the direction of President Obama, backtracked significantly, with new regulations that clearly exempt some of the organizations who have filed these lawsuits, like Catholic universities and social service agencies. Besides that, the regulations they object to don't even go into effect until next year. There was still time for more negotiations. So why are they suing now?" But, the President has not backtracked at all; the original mandate is in effect, is operative now, and the possible changes to that mandate remain unclear and, in any event, not yet operative.

As for the "why now?", question, Fr. John Jenkins's statement explained clearly why, with regret, he thought the case needed to proceed. It is entirely reasonable for these institutions -- who are subject to costly obligations *now* to prepare to comply with the current mandate -- to try to resolve the question of these obligations' legality now, rather than waiting to see if the regulatory landscape changes in some way, down the road.  And, in any event, even the floated changes do nothing about the troublingly narrow religious-employer exemption contained in the current mandate.