New York Times (reluctantly) admits that 'some' courts are backing HHS mandate

As you GetReligionistas have repeatedly stressed in recent years, the battles over the Health and Human Services contraceptives mandate is not a simple story involving two levels of conflict, with churches and religious groups being granted an clear exemption and for-profit corporations over on the losing side of the religious-liberty equation.

As this battle has continued in the courts, things have only grown more complex -- both for the Obama White House and the journalists who cover it.

For starters, there was that whole Hobby Lobby ruling and the fine-tuning in the regulations that has taken place since then. Meanwhile, the really interesting legal wars have focused on doctrinally-defined schools, ministries and parachurch groups that are caught in the middle. This is where things get really complicated and, frankly, many journalists do not seem to understand what all of the fuss is about.

In news reports, journalists continue to describe a wave of court victories for the White House -- while having to admit that there are religious groups who don't see things that way. A new story in The New York Times offers a classic example of this struggle to frame the debate:

WASHINGTON -- Four federal appeals courts have upheld efforts by the Obama administration to guarantee access to free birth control for women, suggesting that the government may have found a way to circumvent religious organizations that refuse to provide coverage for some or all forms of contraception.
While pleased with the rulings, administration officials are not celebrating.
Another federal appeals court, based in Denver, is considering a challenge to the same federal policy by the Little Sisters of the Poor, an order of Roman Catholic nuns who operate homes for low-income older people. At a hearing in December, a three-judge panel asked tough questions of lawyers on both sides of that case.

What is this, journalistically speaking? Note that this victorious lede contains both the phrases "suggesting that" and "may have found a way." That dampens the celebration, just a bit, methinks.

Also note the interesting final clause in the lede, as in the statement that the "government may have found a way to circumvent religious organizations that refuse to provide coverage for some or all forms of contraception."

How might leaders of these religious organizations -- note, as opposed to houses of worship and denominations -- phrase that? They might say something like "refuse to provide coverage for some or all forms of contraception to employees or students, in violation of the doctrinal covenants they chose to sign when joining these voluntary associations." Or words to that effect.

As the Times team does note, the Little Sisters of the Poor are still out there, along with lots of doctrinally-defined colleges and universities, refusing to cooperate in the White House system in which religious leaders are forced to cooperate with government efforts to help employees (and in some cases students) violate of the teachings of the groups with which they have chosen to affiliate. Thus, the article notes:

Sister Constance Veit, a spokeswoman for the Little Sisters of the Poor, said: “We live our lives very far from the public eye. We are not political activists at all. But we fear that the mandate could set a precedent for greater government intrusion into our ministry.
“Our health plans have never included contraceptives, and we’ve never had any complaints,” Sister Constance said. “It has never been an issue for our staff.”

This Times story actually goes a rather good job of showing the complex nature of these debates, while -- time after time -- insisting that the debates are, essentially, over and that doctrinally-defined religious ministries in the middle of this fight are, well, just not GETTING IT. And the judges? Well, that is rather complex:

Adam C. Jed, a Justice Department lawyer, explained that when a nonprofit religious group refuses to provide contraceptive coverage, “the government then steps in and fills the gap.”
But that arrangement is abhorrent to some religious groups like the Little Sisters of the Poor, because the government can rely on information provided by the employer.
“The action of the religious employer is the trigger for contraceptive coverage,” said Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, who represents the nuns. “The government wants to use our plan and our plan’s information to provide this coverage.”
Some judges disagree.

Yes, note the word "some." In many ways, that one word is sign that some of the journalists in the world's most powerful newsroom recognize that the battles continue, even if those battles are -- in their eyes -- stupid and futile.

Now, a confession: I read that Times piece right after opening a new email press release from the Becket Fund staff.

Yes, this is public-relations material, not a news report. I know that. Still I thought GetReligion readers might enjoy reading how experts on the other side of this issue from the Times editors framed the same set of developments.

Washington, D.C. -- Today the Department of Health and Human Services announced that -- despite losing repeatedly at the U.S. Supreme Court -- it would continue trying to force religious nonprofits like the Little Sisters of the Poor to help distribute contraceptives, including the “week-after pill.”
Today’s announcement comes after multiple losses in contraceptive mandate cases at the Supreme Court, including last year’s Hobby Lobby decision and Court decisions regarding the Little Sisters of the Poor and Wheaton College. In fact, just last week the Supreme Court ordered the government not to enforce this rule against Catholic organizations from Pennsylvania, marking the government’s sixth loss in a row at the Supreme Court regarding the mandate. There are now four petitions before the Supreme Court asking the Court to finally resolve the issue by June 2016.
“The government keeps digging the hole deeper,” said Adèle Auxier Keim, Legal Counsel at the Becket Fund for Religious Liberty. “Just last week the Supreme Court ordered HHS not to enforce the exact rules they finalized today. But the government still won’t give up on its quest to force nuns and other religious employers to distribute contraceptives. Especially after the Supreme Court’s recent King v. Burwell decision allowed the government to expand its healthcare exchanges, there is no reason at all the government needs religious employers to help it distribute these products.”
The government proposed similar rules in August 2014, but many observers believed it might change position after repeated losses on the mandate issue at the Supreme Court. However, the government forged ahead and finalized rules requiring non-profit employers to help it distribute contraceptive drugs and devices.

Apples. Oranges. One report is a PR release. And the other from the Times is, well, what is it precisely?

The Times team has made progress in its attempts to admit that there is another side in these debates and, even, that it has "some" wins in courts. But is the legal war really over? What about the headline on this piece? Is it too simplistic?

Courts Support Obama’s Contraceptive Policy, but Challenges Remain

Shouldn't that be. "Some courts support Obama's Contraceptive Policy, some of the time"?

Please respect our Commenting Policy