With dozens of lawsuits pending, President Barack Obama’s administration has proposed new rules that it says will accommodate religious non-profit organizations with moral objections to providing contraceptives and abortifacients in their employee health insurance plans.
As of Feb. 5, the U.S. Conference of Catholic Bishops was taking a cautious approach by withholding comment until analyzing the regulations in depth. “We welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later,” said Cardinal Timothy M. Dolan, archbishop of New York and USCCB president.
The Catholic Health Association of the United States also said it was studying the administration’s proposal in light of its members’ concerns.
Meanwhile, Catholic commentators on the left and right have alternately praised and attacked the proposed modifications to the U.S. Department of Health and Human Services’ mandate that employees have access to all government-approved forms of birth control, including the morning-after pill and sterilization.
“HHS and the administration have gone out of their way to resolve the concerns of religious institutions that object to using contraceptives in their insurance programs. ... They have also found creative ways to provide contraceptives to the employees of religious colleges and hospitals without the involvement of these institutions,” said Jesuit Father Thomas J. Reese, senior fellow at the Woodstock Theological Center at Georgetown University.
However, law firms challenging the HHS mandate in federal courts — such as the Becket Fund for Religious Liberty and Alliance Defending Freedom — quickly came out against the proposed rules for not covering the conscience rights of private employers. Kyle Duncan, general counsel for the Becket Fund, said the rules were “convoluted” and “did nothing” to protect the religious freedom of millions of Americans.
“HHS waited nearly a year and then gave us a proposed rule that still burdens religious liberty,” Duncan said.
On Feb. 1, HHS Secretary Kathleen Sebelius said the administration was taking “the next step” in providing women with “preventive care” at no cost, while respecting religious concerns.
Under the proposal, religious nonprofits are allowed to maintain health insurance plans that do not cover contraception, sterilization or abortion-inducing drugs. Their employees would be enrolled in separate individual policies — at no cost to the employer — that would only cover contraceptives.
The employer would not have to “contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds,” according to the government.
Self-insuring nonprofit entities, including dioceses, universities and some nonprofit organizations, obtaining the exemption would notify the company that manages their health benefits, known as the third-party administrator, which would in turn arrange for separate individual health policies from an issuer providing contraceptive coverage. The third-party administrator would be reimbursed through fees the government collects from insurers who sell policies on the insurance exchanges established by the 2010 Affordable Care Act.
Organizations eligible for the proposed exemption would need to be organized as a nonprofit entity and hold itself out as a religious organization with opposition to providing contraceptive services on account of religious objection. During a Feb. 1 teleconference, Chiquita Brooks-Lasure, director of policy and regulation in the HHS Center for Consumer Information and Insurance Oversight, included churches, universities, hospitals and charities in that exemption.
The definition of religious employer would also be expanded to reflect the established understanding of the Internal Revenue Service, which applies to churches, other houses of worship and their affiliated organizations. Previously, the HHS mandate would have only exempted churches and houses of worship that hired and ministered to people of their own religious background.
Expanding the definition
The expanded definition of religious employers “makes eminently good sense,” said Dr. William Donohue, president of the Catholic League for Religious and Civil Rights. Donohue said the proposed HHS rules appeared “to go a long way toward rectifying the most problematic provisions” of the mandate.
“Essentially, the rules provide insularity for Catholic institutions: they will not be directly involved in providing health insurance coverage for contraception, sterilization and abortion-inducing drugs,” Donohue said.
While adding that the proposal needed to be further examined, Donohue said the expanded exemption and the adoption of the IRS definition of a religious institution was “a sign of goodwill by the Obama administration toward the Catholic community.”
Not everyone agrees, though. The Catholic Association, a nonprofit that speaks out on public affairs, said Feb. 1 that the proposed rules “change nothing” and that was it just “another accounting gimmick.”
The Catholic Association said, “Catholic institutions and other faith-based organizations, including hospitals and universities and private employers, still do not get their First Amendment rights back and are still being forced to either violate their faith or pay crippling government fines for practicing their faith.”
O. Carter Snead, a University of Notre Dame law professor who teaches bioethics, told the Milwaukee Journal Sentinel that he could still imagine concerns being raised by religious institutions “that they’re still facilitating access to these services that are contrary to their beliefs.”
American Life League Executive Director Paul Rondeau said the Obama administration “fails to recognize the constitutionally protected freedom of conscience for all Americans — not just religious organizations as defined by the IRS — are guaranteed in their personal lives and in the workplace.”
The proposed rule, which has not been finalized and is open to public comment through April 8, does not apply to private, for-profit employers with religious objections to paying for contraceptives, abortifacients and sterilization.
Several private companies have filed suit in the federal court system. A few — such as Hercules Industries — have been granted injunctions to shield them from the mandate while their cases are pending. Other private employers — such as Hobby Lobby — have been denied injunctions and now risk substantial fines.
Alliance Defending Freedom, a group of Christian attorneys litigating a handful of the 44 HHS lawsuits, said the proposed rule does not apply to virtually all nonchurch religious nonprofits, such as food pantries, shelters, crisis pregnancy shelters, relief organizations and publishing houses.
“The administration’s narrow gesture does nothing to protect many faith-based employers or religious families from the unconstitutional abortion-pill mandate,” said Matt Bowman, senior legal counsel for Alliance Defending Freedom.
Several of the religious nonprofits lawsuits are in a holding pattern. The Obama administration previously granted a “safe harbor” that exempts religious nonprofits from the mandate until August 2013. The administration has also sought to dismiss those lawsuits for being filed prematurely, though a federal judge in December reinstated the lawsuits of Belmont Abbey and Wheaton College, and pressed the administration to issue amended rules.
Legal observers expect the issue to reach the Supreme Court. The private employers argue the HHS mandate violates their rights under the 1993 Religious Freedom Restoration Act, which prohibits federal laws from placing a “substantial burden” on their ability to exercise their religious beliefs. The government argues that a law is necessary if it addresses a compelling public interest — in this case, contraception — in the least restrictive manner possible.
Brian Fraga writes from Massachusetts.