For more than a year, a serious legal showdown has been looming between religious nonprofit organizations and the Obama administration. The provocation for this showdown was a mandate from the Department of Health and Human Services requiring all companies and organizations to provide contraceptives, sterilizations and abortion-inducing drugs at no cost to their employees.
The mandate exempted a very narrow class of religious organizations using a fourfold test: those that were dedicated to “inculcating” religious beliefs, those that hired and served primarily those who shared those beliefs, and those that also were included in a particular class of nonprofits according to IRS regulations.
For Catholic and many other religious organizations, the threat posed by this mandate is extreme. Not only does it force such organizations to violate Church teachings in providing such services, but it imposed steep fines to coerce compliance. Organizations that either primarily hired or served members of different or no faiths — including hospitals, schools, Catholic Charities or nonprofit organizations like Our Sunday Visitor or EWTN — would be excluded, despite the fact that they had never paid for such services before.
The reaction to this mandate, which has provoked dozens of lawsuits, forced a promise from President Barack Obama that a further clarification would be forthcoming. One year later, on Feb. 1, HHS proposed an amended set of rules.
After analysis of the proposed amendments, many are concluding that this proposal does not address many of the concerns with the original mandate and creates some new ones. While we applaud the fact that the first three requirements of the fourfold test have been dropped, the government has replaced these with a very technical and very narrow definition of what is considered an exempt religious organization (those that do not file 990 forms). In intent both the original mandate and the amended rules reflect an effort on the part of the government to define a religious organization narrowly as a house of worship or a very specific kind of Church-controlled organization.
It has also created an elaborate, if still somewhat vague, structure for forcing insurance companies and third-party administrators (who handle the insurance claims of self-insured organizations such as Our Sunday Visitor) to provide or procure coverage for contraceptives, sterilization and abortion-inducing drugs for the employees, their children or students of objecting religious organizations.
The bottom line, however, is that instead of recognizing that this is a coercive and unnecessary overreach by the government to force Catholic organizations to violate their consciences or go out of business, the government appears to have doubled down. The proposed amendments look less like a sincere effort to accommodate the religious beliefs of a significant portion of Americans, and more like an effort by the administration to batten down its legal hatches and improve its legal position by ever more narrowly defining those organizations who will be exempted from the mandate.
What we may have been presented with, in other words, is a strategic maneuver to win an eventual court case rather than a sincere effort to meet the conscience concerns of religious organizations.
If so, this would be a historic opportunity lost. President Obama has an opportunity at the start of the second term of his administration to drop this offensive assault on religious freedom that threatens a wide variety of Catholic organizations. He has an opportunity for a do-over that would remove a dangerous legal precedent. He has an opportunity to reset relations with Catholic leaders as he engages in several critical issues of mutual concern such as immigration reform, budget cuts and means of restricting gun violence.
In a Feb. 7 statement pointing out the flaws of the proposed amendments, Cardinal Timothy Dolan of New York, president of the U.S. Conference of Catholic Bishops, reaffirmed the desire of the Church to work with the administration: “Throughout the past year, we have been assured by the administration that we will not have to refer, pay for or negotiate for the mandated coverage. We remain eager for the administration to fulfill that pledge and to find acceptable solutions — we will affirm any genuine progress that is made, and we will redouble our efforts to overcome obstacles or setbacks.”
At the same time, he reiterated that the U.S. Conference of Catholic Bishops “continue to stand united with brother bishops, religious institutions and individual citizens who seek redress in the courts for as long as necessary.”
With Cardinal Dolan, our hope continues to be that the opportunity to back away from this Church-state confrontation will not be lost. We recognize that the administration has asked for further input on these proposed amendments, and we continue to hope that a negotiated solution will be found that respects the consciences of all. But if it looks like those who started this fight are determined to see it through to the end, then religious organizations and Church leaders must be just as resolute going forward.