Archive for the ‘Health Care Reform’ Category

The Little Sisters of the Poor and the HHS Mandate

Monday, January 13th, 2014

[Last week, I was invited to participate in an online debate at U.S. News and World Report, about the lawsuit brought by the Little Sisters of the Poor against the HHS Mandate.  Here is what I contributed.]

The Little Sisters of the Poor have dedicated their lives to giving witness to their Catholic faith by providing nursing home care for elderly needy people.   They do beautiful work, and are extraordinarily dedicated. You would think our society would cherish this mission and help it succeed.

Instead, the Administration is forcing the Sisters into a terrible “Sophie’s choice” — violate their faith, or be forced out of business.  The issue is the “HHS Mandate” — the requirement that all employer health insurance policies include contraceptives (including “emergency contraception”, which can cause early abortions) and sterilization.  Catholics, and many others, object to this because those services directly contradict our belief in the sanctity of human life and sexuality.

The Administration has created a narrow exemption for churches, but not for religious non-profit organizations like the Sisters’ nursing homes.  The best the Administration offers is an “accommodation”.  But to qualify, the Sisters have to file a “permission slip” directing their insurance company  to provide the offensive coverage.

This is what the Sisters, and other religious organizations, can’t accept.  Filing that “permission slip” means they would be directly cooperating in something forbidden by their faith.  The government doesn’t have the right to force anyone to do that.

Would anyone think it is acceptable for the government to force the Sisters to sign a form that gives explicit permission for someone to come into their nursing homes to euthanize their patients?  Of course not  — it would be an unthinkable violation of their religious freedom.  And remember, the Sisters are not imposing their beliefs on anyone — their employees, who freely chose to work for them, will still be free to obtain those services elsewhere.   Only the Sisters are being forced to violate their beliefs.

This is not an abstract legal controversy — the real-world stakes are very high.  For standing up for their faith, the Sisters are facing fines of $100 per day per employee as of January 1.  They employ hundreds of people at their thirty nursing homes.  So do the math — they are looking at fines of over $50 million per year, which would put them out of business.

The real victims of that would be the poor elderly people the Sisters serve, who would lose such wonderful care.  That would defeat the good intentions of the Affordable Care Act — ensuring health care for all, especially the most vulnerable.  That’s surely not in the public interest.

Yet the Administration won’t even agree to delay the fines so the Sisters can argue their case on appeal — even though they’re now letting businesses drop health insurance for their employees completely, with no fine at all.   This isn’t public policy, it’s a coercive ideology that considers contraception, sterilization and abortion to be “sacred ground”, and that will brook no dissent from people of faith.

All of society is enriched when religious groups serve needy people.  Only ideology is served by the Administration’s intolerance against the Little Sisters of the Poor.

The HHS Mandate — Where We Stand, In Plain Language

Wednesday, January 8th, 2014

The HHS Mandate continues to make news, so I thought it would be worthwhile to give a quick, plain-language overview of where things stand, and what’s at stake.

What is the “HHS Mandate”?

The “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”.   The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations.

The mandate went into effect as of January 1.  As of that day, religious non-profits were faced with a terrible dilemma — sacrifice their religious beliefs and obey, or face the consequences of non-compliance.

What’s at stake if organizations don’t comply?

If an employer’s health insurance plan does not provide the coverage required by the HHS Mandate, they are subject to a fine of $100 per day per employee.  An employer with 100 employees would be fined $10,000 every day, or $3.6 million per year.

There are thousands of religious non-profits in this situation.   Take one small case — the Little Sisters of the Poor (whose case is much in the news these days), who employ hundreds of people at their thirty nursing homes.  They could face fines of over $50 million per year for non-compliance.  Obviously, that would put them and their nursing homes out of business.

When you look at the even bigger picture, the numbers become staggering.  Catholic Charities reports that their affiliated agencies have over 70,000 employees nationwide.  If all of those agencies were non-compliant, they would risk a total of over $2.5 billion in fines every year.

Isn’t there an exemption for religious employers?

There are many exemptions from the entire ACA.  For example, members of religions that oppose insurance benefit programs (e.g., the Amish) do not have to comply with any part of the law.  Over the past few months, the Administration has granted new exemptions, waivers, and delays, due to the mess associated with the new health exchange websites, and all the other chaos involved in implementing such a complicated new law.  So there are lots of people who don’t have to comply with all or part of the ACA.

As for the HHS Mandate itself, the Administration did give a very narrow exemption from the HHS Mandate for churches.  There is an “accommodation” for some religious non-profit organizations (e.g., Catholic Charities, Catholic hospitals).  There is no exemption for for-profit companies.

But there’s an important catch involved in the “accommodation” for religious non-profits.  They can only qualify if  they file a form that directs their insurance company  to provide coverage for contraception and sterilization.  This is not “just a form”.  Instead, it’s a “permission slip” — it is the key document that triggers insurance coverage for the offensive services.

So, regardless of the Administration’s claim that they have “accommodated” religious non-profits, the reality is that faith-based organizations have to become directly involved in immoral behavior — or risk the ruinous fines outlined above.

What’s going on in court?

There are dozens of lawsuits across the country challenging the HHS Mandate, on the basis of religious liberty.  The cases rely on the Free Exercise Clause of the First Amendment to the U.S. Constitution, and a federal law called the “Religious Freedom Restoration Act”.  These cases are all working their way through the federal courts.

A number of for-profit businesses have brought lawsuits against the HHS Mandate on the basis of their religious beliefs.  The Supreme Court has agreed to decide cases brought by two businesses (Hobby Lobby and Conestoga Wood).  There are a number of thorny legal issues involved in these cases, including whether corporations have religious liberty rights at all.  The issues will be hotly contested, and many people will file briefs on the case, including the US Bishops, who will support the companies’ position.  The Court will decide the cases by June.

Many other cases have been brought by religious organizations, including the Archdiocese.   Twenty of these cases have been decided so far, and nineteen have resulted in victories — the courts have held that the “permission slip” form is a violation of their religious liberties.   The Government is appealing their losses, and the Supreme Court will have the final word.   But no decision is expected for at least a year.

One case that has been in the news was brought by the Little Sisters of the Poor.  They lost in the lower court, but Supreme Court Justice Sotomayor has issued a “stay” — an order that puts the lower court’s decision on hold, so that the Sisters could appeal.  The government has opposed the “stay”, and a decision by the full Supreme Court will determine whether the Sisters will face tens of millions of dollars in fines while they appeal.  But no matter what the Court rules on the “stay”, the Sisters will still have to go back and fight out their case in the lower courts on the merits.

So what can we do?

Of course, the most important thing is to pray for the conversion of heart of the President and his Administration, and for the success of the lawsuits against the mandate.  There are lots of prayer resources at the U.S. Bishops’ website.

We can also take action.  Please contact your Congressional representatives and urge them to support authentic conscience protection, and a full repeal of the mandate.  The quickest way to do that is through the National Committee for a Human Life Amendment’s Action Center.

The Administration’s Ideological Obsession

Thursday, January 2nd, 2014

How can you diagnose when somebody is suffering from ideological obsession?

Consider the case of the Affordable Care Act.  This law was supposed to provide for universal health insurance for all Americans.  Yet the law is filled with exemptions, and the Administration has granted even more exceptions and exemptions as the implementation date for the law approached on New Year’s Day.

Here are just a few of the exemptions that were incorporated in the law itself:  people who can’t afford coverage, even with a subsidy; people with income levels too low to require filing a federal tax return; members of certain Indian tribes; people who can claim a hardship; people who will have a short gap in their coverage;  members of certain religious groups that conscientiously oppose insurance benefit programs (e.g., the Amish); members of a “health care sharing ministry”; people in prison; and people who are not lawfully in the United States.

In the last few months, with all the mess associated with the new health exchange websites, and all the other chaos associated with the law, the Administration has granted new exemptions:  people whose plans were cancelled can get a plan that is not compliant with the ACA; people who weren’t able to comply because of difficulties in signing up for a new plan won’t be penalized; and large businesses with over 50 employees will not be fined for failing to provide any health insurance.

Now, many of these exemptions make perfect sense, and reflect a healthy degree of flexibility in the implementation of a very complex law.

So, what does this have to do with ideology?  Well, despite all those other exemptions, waivers and extensions, one group has not been able to obtain an exemption, despite repeatedly asking for it, petitioning for it, and finally suing for it — religious organizations that have a moral objection to facilitating contraception, sterilization, and abortion, as would be required under the so-called HHS Mandate.

For these groups, there is no flexibility at all.  There is instead an adamant insistence that they will have to cooperate, regardless of their deeply-held religious beliefs.  The Amish get out of the law entirely, but when it comes to Catholic dioceses, schools and charities agencies, the government offers nothing except artificial and unsatisfactory “accommodations”.

Consider the absurdity of the government’s position.  As pointed out by Archbishop Kurtz, the president of the U.S. Bishops, under the Administration’s current policies, large businesses will be able to completely eliminate any health insurance for their employees, with no fine at all, but religious organizations that refuse to cooperate with moral evil will be subject to crippling fines of $100 per day per employee.  The government won’t even grant temporary respite while legal challenges are working their way through the courts.  They can’t even bring themselves to give a break to the Little Sisters of the Poor, who spend their entire lives caring for needy elderly people.

Why is this?  It’s not that hard to understand.  The current Administration is entirely beholden to an ideology of sexual liberationism that considers contraception, sterilization and abortion to be “sacred ground”.  They consider this ideology to be so central to life that they will brook no opposition, and will do whatever it takes to bring to heel anyone who opposes them.

That is an ideological obsession.  It is dangerous to the souls of those who suffer from it, and it is dangerous to any society in which they wield power.

An Important Victory for Religious Freedom

Monday, December 16th, 2013

An important victory was won today for religious freedom.  In a well-reasoned decision, Judge Brian Cogan of the United States District Court for the Eastern District of New York, issued a permanent injunction barring the enforcement of the HHS Mandate against Catholic agencies in the Archdiocese.

This is not the final stroke of victory against this iniquitous and repressive mandate, as we might hope.  But as Winston Churchill once said, “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.”

The key element in Judge Cogan’s finding was his specific rejection of the Administration’s minimalistic approach to religious liberty.  The Administration continues to operate on the view that religion is a private matter. It apparently believes that any time a person or organization steps into the public square in any way, they leave their religious freedom behind, and can be compelled to conform their every action to secularist rules of behavior and thought.

Judge Cogan rejected that view.  He rightly found that the HHS Mandate improperly requires church agencies to perform acts that are directly contrary to our Catholic faith — by forcing them to affirmatively endorse and facilitate access to abortion, contraception and sterilization, under penalty of ruinous fines.  The essential quote from the decision:

[The plaintiffs] have demonstrated that the mandate, despite accommodation, compels them to perform acts that are contrary to their religion… there can be no doubt that the coercive pressure here is substantial…  and the Government has failed to show that the Mandate is the least restrictive means of advancing a compelling governmental interest.

This is a very important point, and one that should be axiomatic to anyone who believes in ordered liberty.  If religious freedom means anything, it means that the government can’t force people to do things that they believe God has forbidden.  For people of faith, there is a hierarchy of authority, and it is unjust for the government to try to arrogate to itself the ultimate authority over people’s consciences.  Coercion on matters of conscience are a gross violation of human rights.

Pope Francis has made this point forcefully in Evangelii Gaudium, saying

“A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism.”  (255)

This fundamental principle underlies Judge Cogan’s well-reasoned decision.  At some point, one hopes that the Administration will awaken, and recall that there are necessary limits on state power, if a nation, and its people, are to be truly free.

Any Chance for Reasonableness?

Tuesday, October 1st, 2013

There’s even more furor and confusion than usual in Washington, as the House, Senate and White House struggle over the passage of budget bills, raising the national debt limit, funding for the implementation of the Affordable Care Act, and government shut-downs.  But something important is being overlooked — the continuing threats to the conscience rights of individuals and institutions in the Affordable Care Act and the regulations that are implementing it (including the HHS contraception/abortifacient mandate).

In a normal, functioning governmental system, important public policy measures are introduced as individual bills, public input is obtained through hearings, and the measure is openly debated by legislators.  Since we no longer appear to have such a system of government, important policy issues are tacked onto spending bills, and our government leaders rely on confrontational strategies and parliamentary gamesmanship to bend others to their will.

Lost in all of this is that crucial constitutional and natural rights are being threatened, and legislative action is needed to provide necessary protection for those rights.

One such proposal is to delay the implementation of the HHS mandate.  The Administration has already granted numerous waivers, delays, exemptions, and grace periods for various provisions of the Affordable Care Act.  What we would like to see is for Congress to vote to delay the implementation of the HHS mandate for one full year, which would give the Supreme Court time to decide some of the cases challenging the mandate.  In essence, all we are asking is that Congress put the controversy on hold, out of respect for the seriousness  of the constitutional rights at stake.

The House has already passed a continuing budget resolution that included that provision, but the Senate has rejected it.  We hope that a more conciliatory, reasonable approach will prevail, and that this common-sense measure would be accepted.

We also hope that genuine conscience protection legislation would be considered by Congress.  For example, the USCCB is advocating with Congress to include the Health Care Conscience Rights Act (which would provide broad protection for religious liberty among health care workers and institutions).   The bishops have also been pressing for legislation to address the specific conscience problems presented by the HHS mandate.

The situation in Washington is extremely frustrating, and it is difficult to see a solution to the partisan gridlock.  All we are asking is for some breakthrough of reasonableness, so that precious liberties aren’t lost in the process.

That shouldn’t be too much to ask.

Mandate Fact #3 — Dragging Words Out of Our Mouths

Tuesday, April 3rd, 2012

One of the most common claims that we’ve heard is that the HHS mandate actually won’t be a big deal in practice, and that the Church is either “crying wolf” or being hyper-sensitive.  The argument is that the Administration’s “accommodation” means that the responsibility for paying for the offensive services has been shifted from the employer to the insurer, so religious employers and individuals have nothing to worry about.

This is not at all accurate, and fails to account for how the mandate will work in practice.

The reality is that the mandate will drag words out of our mouths that we would never freely choose to utter, and force us to do things that we would never freely do.  It will coerce direct and repeated conduct and speech by Church employees — acting on the authority of and in the name of the diocese and the bishop.

Consider how an employer selects and administers a health insurance program for their employees.  Contracts for health insurance coverage must be negotiated and signed by a diocesan official, usually a high ranking official like the director of Human Resources, the Chief Financial Officer, or the Chancellor.  These contracts are then packaged into a plan booklet, which is issued by the Human Resources office in the name of the diocese, and usually accompanied by a letter to employees from a high ranking official — or even the bishop himself.  Details about the plan are usually incorporated into the official personnel manual of the diocese, which is issued by the Human Resources department and often promulgated by the bishop himself or a high ranking official designated by him.

Officials in the Human Resources department, and every individual department and institution, will process applications for insurance coverage, and will routinely discuss the details of the plan with current and prospective employees.  In the case of any self-insured diocese, there is a further layer of involvement between the diocese and the services, since diocesan officials or their agents will have to issue checks drawn on diocesan funds, to pay for the services.

At each of these instances, a diocesan official would be taking formal and specific knowledge of the details of the health insurance plan.  They will also be required to do things — taking a action or making a statement — that specifically endorse the insurance policy as a formal act of the diocese, and thus of the bishop himself.

This strikes directly at the heart of individual and institutional freedom of conscience.  Throughout American history, we have shown by exempting people from laws that would violate their religious beliefs — for example, think of Jehovah Witnesses and the Pledge of Allegiance, or Quakers with the military draft.  Our laws contain hundreds of such exemptions.  They represent, in many ways, the best part of the American character.

This regulation, on the other hand, represents the worst part of modern America — the exercise of raw political power to deny the rights of an entire class of people, and to benefit a favored class of political supporters, all in the service of an anti-life ideology.

We must resist.

Mandate Fact #2 — Big Brother is Coming to Visit our Churches

Wednesday, March 28th, 2012

This is the second in a series of posts about the HHS Mandate that all health insurance policies cover contraceptives (including drugs that cause early abortions) and sterilizations.  There are so many misconceptions about what this mandate will involve, that I thought it would be helpful to lay out the facts.

Supporters of the mandate like to say that the various “compromises” and “accommodations” proposed by the Administration will ensure that individuals and religious institutions will be left alone and won’t have to do anything that violates their rights.

This fails to appreciate how the mandate will work in the real world.  This mandate will inevitably lead to intrusive and offensive government investigations into religious organizations.

In order to qualify for the religious employer exemption, every religious organization will have to file with HHS a certification that they satisfy all the criteria.  Since our parishes and schools are each separate employers, every single parish and every single school will have to file such a statement.

By filing that statement, every single one of our parishes, schools, and other agencies will be vulnerable to compliance investigation by HHS.   Think for a second about this staggering scenario.  Imagine an HHS employee who has the authority to grant or deny exemptions, and thus to levy onerous fines.  This official will have the authority to come into our buildings and demand that a pastor or principal produce proof of the religious mission of the parish or school.  He could demand that they document how they and their staffs spend their time, to see if they are really engaged in religious work.  He can demand records about the religious affiliation of their employees and staff, and on the students in the school or religious education program or youth sports program.  Nobody knows what criteria he will use to evaluate this information, or what standards the parish or school will have to meet.

It is difficult to conceive of a more intrusive and arbitrary government interference with the internal operations of a Church agency.  It’s like a scene from a Kafka novel.  Anyone who has ever had dealings with the IRS, the EPA, the Unemployment Office, or any other powerful, impersonal, unaccountable government agency, would recoil in horror.

This kind of intrusion is utterly inconsistent with authentic religious liberty, as upheld in the recent Supreme Court decision in the Hosanna Tabor case, which upheld the freedom of churches to govern their internal affairs, free from state interference.  In fact, the risk of this kind of entanglement between the government and religious institutions was a significant factor in that decision.

Is this really what we want — where the government will come directly into the internal affairs of our churches and pass judgment on whether we’re “religious” enough?  In America?

Thanks to the HHS Mandate, it’s not only conceivable, it’s inevitable.

Mandate Fact #1 — The Religious Employer Exception is Very Narrow

Monday, March 26th, 2012

The Church has been spending a great deal of energy trying to educate people about the HHS Mandate that all health insurance policies cover contraceptives (including drugs that cause early abortions) and sterilizations.  There are many misconceptions about the scope of the mandate.

I have now blogged on this subject several times, but now I’d like to explain some of the essential facts that people need to know about the impact of the mandate.

We frequently hear the argument that the Church is not justified in objecting to the mandate, because  the employer exemption — the main subject of the series of “compromises” and “accommodations” announced by the Administration — encompasses all churches and religious orders.

This is not accurate.  The extent of the religious exemption in the health care law (officially known as the “Affordable Care Act” or “ACA”) is so narrow that it will reach very few Church institutions.

We must recall that, in the Archdiocese and in many other dioceses, each individual parish, school, and institution is a separate legal corporation.  Under the law, they are considered the actual “employer” of their staff — not the diocese as a whole.  It is also important to recognize that the ACA imposes inter-related mandates on individuals, employers and insurers — but only employers are afforded any possibility of conscience protection.

In applying the actual exemption, we will have to do an institution-by-institution analysis.  Under the law, our parishes, schools, and other agencies would be exempt only if all four of the following criteria are met:

(a) its purpose is the inculcation of religious values,
(b) it primarily hires persons who share the organization’s religious tenets,
(c) it primarily serves person who share those tenets, and
(d) it is a nonprofit as described in sections of the IRS code relating to churches, their integrated auxiliaries, conventions or associations of churches, and the exclusively religious activities of a religious order.

It is likely that the exemption would cover most parish churches.  But note that it is only “likely” and “most”, since it is by no means certain that all Catholic parishes “primarily hire” Catholics.  Under federal, state and local laws that ban religious discrimination, only a few parish positions that would be considered ministerial (e.g., Director of Religious Education, music directors) can be reserved for Catholics, and all other non-ministerial positions (e.g., secretaries, maintenance men) must be open to non-Catholics.  In fact, for those positions, it is probably illegal even to ask about an applicant’s religious beliefs.  As a result, it is entirely conceivable that some parishes would fail to satisfy the “primarily hires Catholics” requirement of the exemption — an astonishing result.

I also wonder how many of our schools would be covered by the exemption.  Certainly, one of the primary purposes of our Catholic schools is to inculcate religious values, but what if HHS decides that it has to be the sole purpose, in order to qualify?  In addition, our schools are open to children of every faith, and many of them have a majority of non-Catholic students — which means they would fail the “primarily serves Catholics” requirement.  Again, this would be an amazing result — that the government would decide that a Catholic school is not enough of a religious institution to qualify for the exemption.

As for our social service agencies, and hospitals, there is no question that they fail each part of the test, and could not avail themselves of the exception — their purpose is not to teach religious values, and they neither serve nor employ primarily Catholics.  Once again, we have the absurd result in which agencies who absolutely consider themselves to be religious in nature and in mission, will be found by the government to be not sufficiently religious.

These basic facts are important for people to understand, if they are going to fully appreciate the extreme nature of the HHS mandate, and how it will violate our religious liberties.

More to follow.

 

Rallying for Religious Liberty

Friday, March 23rd, 2012

Today is the second anniversary of the passage of the health care reform bill, known as the Affordable Care Act. Today was also a day on which thousands of Americans, across our nation, gathered at rallies to defend religious liberty.

I was privileged to address the rally at Federal Hall in lower Manhattan, both to add a few words of my own, and to read a letter of support from Cardinal Dolan.

We stood in the shadow of the statue of George Washington, one of the great defenders of religious liberty. We gathered at the spot where the first Congress enacted the Bill of Rights. We were there to decry the threat to religious liberty posed by the Affordable Care Act.

In his encyclical, The Gospel of Life, Pope John Paul warned of the dangers of a totalitarian form of democracy — where laws are enacted that violate the fundamental moral law, and endanger authentic freedom and dignity.

The ACA takes a dangerous step in that direction. To understand this, we must look behind the details of mandates, “accommodations” and “compromises”. We must recognize that the ACA embodies a totalitarian mindset that is fundamentally incompatible with liberty.

This law reaches every American citizen, every American business, every religious organization. Its reach is unprecedented, and vast. All individuals and institutions in America will be brought into line with an state-approved anti-life ideology that views fertility as a threat, pregnancy as a disease, and children as a burden to be eliminated. Churches and religious organizations will be defined by the government, and vulnerable to penalties if they dissent or resist. Faith-based institutions will be subject to intrusive investigation by officials who will pass judgment on the nature and legitimacy of their religious purpose and the beliefs of their staffs and the people they serve. Religious people will be coerced into speech and actions that endorse and promote things they find morally reprehensible. Even members of religious communities, like the Sister of Life, will be forced to violate their sacred vows or face punitive fines.

The temptation is to tinker around the edges of this threat, make compromises, and protect narrow institutional interests. But all that does is delay the inevitable, and lull us back into denial.

Surely we have passed that point, and instead have reached what biographer Eric Metaxas has called a “Bonhoeffer moment”. Dietrich Bonhoeffer, the great German Lutheran theologian, worked mightily to resist the National Socialist ideology and the Nazi regime. At first, he tried to do so within the system, but eventually he realized that this was not possible, and that he had reached a time to stand firmly but lovingly in defense of religious liberty and the Church, even to the point of suffering.

By no means am I comparing our current government with the wicked Nazi regime. But evil laws come in many flavors and sizes. The laws of our nation that authorize the slaughter of the unborn are evil. The laws that permit the government to restrict the right to conscience of individuals and Churches are evil. It does not matter that they are enacted through the democratic process and have the veneer of legality. They offend against the laws of God and natural human rights.

We cannot let things go further down the path to totalitarian democracy. We must speak the truth with love, and resist by all lawful and peaceful means.

Where Do We Go From Here?

Monday, March 5th, 2012

There has been a great deal of action on the new federal mandate that all health insurance policies cover contraceptives (including drugs that cause early abortions) and sterilizations.  There is also a great deal of misinformation, political spin, and outright deception going around about what is actually at stake, and what has happened.  Here are a few key points to keep in mind:

The Web of Mandates in the Health Care Law

Remember the background for this situation — it comes from the health care reform law, which is a comprehensive regulation that impacts everyone in the United States.  That law imposes three levels of mandates:  (1) all individuals will be required to have a health insurance policy, or pay a fine to the government; (2) all employers (with a few exceptions for small businesses) will have to provide their employees with an insurance plan or pay a fine to the government; and (3) all insurance companies will have to cover a variety of things, including “preventive services”.  We must understand these legal requirements, if we’re going to understand the significance of this new mandate.

The Contraceptive/Abortion Mandate

Last summer, the Department of Health and Human Services, acting under the authority given to them by the health care reform law, announced regulations to define what had to be covered by health insurance policies under the rubric “preventive services”.  These regulations would require all employers and health insurance policies to cover contraceptives (including drugs that cause early abortions) and sterilizations.  There was an extremely narrow exemption for religious employers, but no exemption for religious individuals or insurance companies with objections.

There was considerable public furor in response, and thousands of people — including the U.S. Bishops and many other religious groups — filed comments with HHS, asking for the rejection of the regulation or the granting of a broader religious exemption.  Nevertheless, on January 20, 2012, HHS announced that they were going to implement those regulations without any modification whatsoever.

There is No “Compromise”

In response to the renewed public furor that followed the issuance of the final regulations, the President announced on February 10 that there would be a “compromise” to address the religious liberty objections of churches and other faith-based institutions.

But here’s the key thing to remember:  no details about this “compromise” have been announced.   The Administration has made clear that they are not open to any further concessions on religious liberty. The original regulations have become law — there is absolutely no substance whatsoever to the “compromise”, beyond promises of something at some undefined time in the future after the next election.  It’s all smoke and mirrors and political spin.

The net result is that there is virtually no way out of this mandate — it is very, very broad, and the “religious liberty” exemption is very, very narrow.  Very few employers — and no individuals or insurance companies — will be able to claim conscientious objector status.  There is no “compromise” in this regulation — nothing.

It’s Not About Banning Contraceptives — It’s About Religious Liberty

Sadly, access to contraceptives, at low or no cost, is virtually universal in the United States.  Nobody is calling for them to be outlawed, and nobody is giving employers the power to ban their employees from buying them.  That’s all media and political spin — it’s an outright lie.  This is not about contraceptives.  If people want to use them, that’s between them and God.

This is about government coercion against churches.  It’s about the fundamental human right to tell the government to “leave us alone” — don’t make us cooperate with practices that we find immoral.  As the U.S. Bishops’ Conference has said:

“Under the mandate, the government forces religious insurers to write policies that violate their beliefs; forces religious employers and schools to sponsor and subsidize coverage that violates their beliefs; and forces religious employees and students to purchase coverage that violates their beliefs.”

That’s contrary to the basic principles of American democracy, and that’s why we’re opposed to it.

What is Being Done to Fight This?

The U.S. Bishops have been very outspoken in opposition to the mandate, and in defense of our religious liberty.  Every bishop in the United States has condemned this mandate.  Leaders of many religious communities have condemned it.  Leaders of other faiths — Orthodox, Protestant, and Jewish — have joined in opposing it.

Just last week, an attempt was made in the U.S. Senate to add an amendment to a spending bill, to provide protection for religious individuals and institutions.  This particular tactic was chosen because the rules of the Senate require a super-majority of 60 votes before a bill can be brought to the floor for a vote — this is a legacy of the old days of filibustering.  But the rules permit an amendment to be approved by a simple majority — 51 votes. It was hoped that this amendment would pass both the House and the Senate, and that the President would not veto a large and important spending bill, just for the sake of this provision. Unfortunately, the Senate did not approve the amendment — it only got 48 votes, just shy of the number needed for passage.

This leaves the Church with several options at this point:

  • Continue pressing Congress for action — There are several bills before Congress that would correct the problems created by this mandate.  Bills like the Respect for Rights of Conscience Act and the Religious Freedom Restoration Act of 2012 deserve our support.  We must keep pressing  Congress with emails and letters in support of them (an easy way is to go here).  Unfortunately, our New York Senators and most of the Congressional representatives from the Archdiocese are unlikely to support our position.  But we must keep the pressure on.
  • Going to court to defend our rights — Several lawsuits have been filed already, attacking the mandate, and more will be filed.  The grounds for the cases include the First Amendment and the Religious Freedom Restoration Act.  The entire health care law is currently being reviewed by the Supreme Court, and a decision will be handed down later this year.
  • Educating ourselves and others — This is a very complicated issue, and many people are suffering from political fatigue at this point in the seemingly-perpetual Presidential campaign.  But there is so much dis-information out there that we must redouble our efforts to make sure that people understand what’s really going on here, and what’s at stake.  The U.S. Bishops’ website has many valuable and easy-to-understand resources that we can use in our parishes and communities.
  • Supporting our bishops and standing united with them — The supporters of the mandate are trying to drive a wedge between Catholics and our bishops, and are forming alliances with Catholics who either dissent from Church teaching on contraception and abortion, or who would rather stand with politicians than their shepherds.  Our bishops are being battered in the public square, and the level of anti-Catholic bigotry is simply astounding.  This is a time for all Catholics to rally behind the standard of Christ — and to stand shoulder-to-shoulder with our bishops.
  • This is just one stage of a long, ongoing battle to defend religious freedom in our nation.  This liberty is under continual attack from our own government.  Our Lord promised that the gates of hell would never prevail against the Church.  We must be fervent in our prayers, and steadfast and vigilant in our defense of the Church, and the rights of individuals to live according to their faith.