A new mandate announced Aug. 1 by the U.S. Department of Health and Human Services that requires private health plans to cover contraception and sterilization could place many Catholic institutions — including hospitals, social service agencies and colleges and universities — in a difficult position.
The mandate, which takes effect next August, requires new or significantly altered health insurance plans to cover all “Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity” without charging a co-payment, co-insurance or deductible. Among the drugs covered is the emergency contraceptive ella, which can work as an abortifacient.
The Catholic Church considers both artificial contraception and sterilization intrinsically evil.
The HHS mandate follows recommendations from the Institute of Medicine regarding which women’s preventive health services should be covered under the new Patient Protection and Affordable Care Act, signed into law last March by President Barack Obama.
An amendment allowing religious employers to opt out of covering contraceptive services is so narrowly worded that “the vast majority of Catholic institutions would not qualify,” Richard Doerflinger, associate director of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities, told Our Sunday Visitor.
To qualify as a “religious employer” exempt from covering contraception, an institution must meet four criteria: that it “(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization” under certain sections of the Internal Revenue Code. HHS is accepting comments on its definition of a religious employer through the end of September.
“The religious exemption is unprecedented in federal law,” said Michael Moses, associate general counsel for the U.S. Conference of Catholic Bishops. “It’s the narrowest religious exemption we’ve ever seen in federal law.”
The wording is ambiguous, he said — it is not clear, for example, what exactly “primarily” means — but the criteria would seem not to cover Catholic hospitals and social service agencies, which serve those in need regardless of their religion.
The irony, Doerflinger said, is that “the only way in which you’re ‘religious’ enough to be exempt is if you actually reject core Christian teachings like the willingness to serve those of different faiths,” which is emphasized in Jesus’ parable of the Good Samaritan.
“We are called to serve people because of their need, not because of their religion,” he added.
“There may be a few institutions or organizations out there that hire only their own and serve only their own, but I’ve never heard of one,” Deirdre McQuade, assistant director for policy and communications for the U.S. bishops’ pro-life secretariat, told OSV. “So really it’s an exemption that doesn’t exempt anybody.”
That leaves many Catholic institutions with a stark choice: Either compromise their religious principles, or stop offering health insurance to their employees and face tax penalties under the health reform law.
The mandate could, in effect, create “a ‘second class’ of religious institutions,” said Eric Rassbach, national litigation director for The Becket Fund for Religious Liberty, a nonprofit law firm that defends free expressions of faith.
“Let’s say that you have a secular university — they’re able to say, ‘We, like every other employer in the country, provide health care benefits for our employees.’ And the Catholic college has to say, ‘Well, unfortunately, we’re not allowed by the government to provide health insurance, so you’re just going to have to go and fend for yourself if you come and work here.’”
That discrepancy in benefits would put Catholic colleges “at a severe disadvantage in hiring faculty and employees,” said Patrick Reilly, president of the Cardinal Newman Society, a nonprofit organization that aims to renew and strengthen Catholic identity in Catholic higher education.
Combined with the tax penalties, the potential challenges in attracting employees could put Catholic institutions in a pinch.
“We have been hearing from college leaders at faithful Catholic colleges who have said that they will simply opt out of insurance and try to keep their doors open,” Reilly told OSV.
If the contraceptive mandate goes into effect as it stands, said Doerflinger, “there aren’t any acceptable choices” for Catholic employers. Even if they stop offering health insurance, their employees will be left to purchase their own plans, which will also have to cover contraception and sterilization, since the mandate does not include an individual conscience exemption.
“So it could come to be a damned-if-you-do-damned-if-you-don’t situation,” McQuade said.
Carving up the Church
Reilly told OSV that he also fears the mandate could serve to drive “wayward Catholic institutions further away from the Church” if they go ahead and provide contraception and sterilization coverage to their employees.
The mandate “seems to carve up the Church,” said Moses, dividing the parts that preach the Gospel and administer sacraments from those that serve the wider community.
John Brehany, executive director of the Catholic Medical Association, agreed.
“This is going to have the effect, if it stands, of further alienating all of these institutions from the Church, because under federal law, they will not be considered religious employers,” Brehany told OSV. “I guess they won’t be considered religious institutions anymore.”
While praising other elements of the new HHS guidelines, Daughter of Charity Sister Carol Keehan, president and CEO of the Catholic Health Association of the United States, also expressed concern about the contraceptive mandate and the religious exemption and their potential impact on Catholic hospitals in an Aug. 2 statement.
“As it stands, the language is not broad enough to protect our Catholic health providers,” she wrote. “Catholic hospitals are a significant part of this nation’s health care, especially in the care of the most vulnerable. It is critical that we be allowed to serve our nation without compromising our conscience.”
Kevin Birnbaum writes from Washington state.