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.

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.

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.

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.

(The following is an open letter signed by several prominent intellectuals, in response to the Administration’s “compromise”.  It is an important and cogent summary of the significance of that proposal, so I offer it to you in its entirety.  It was originally posted here.)

Today the Obama administration has offered what it has styled as an “accommodation” for religious institutions in the dispute over the HHS mandate for coverage (without cost sharing) of abortion-inducing drugs, sterilization, and contraception. The administration will now require that all insurance plans cover (“cost free”) these same products and services.  Once a religiously-affiliated (or believing individual) employer purchases insurance (as it must, by law), the insurance company will then contact the insured employees to advise them that the terms of the policy include coverage for these objectionable things.

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust.  Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization.  This is a grave violation of religious freedom and cannot stand.  It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept as assault on their religious liberty if only it is covered up by a cheap accounting trick.

Finally, it bears noting that by sustaining the original narrow exemptions for churches, auxiliaries, and religious orders, the administration has effectively admitted that the new policy (like the old one) amounts to a grave infringement on religious liberty.  The administration still fails to understand that institutions that employ and serve others of different or no faith are still engaged in a religious mission and, as such, enjoy the protections of the First Amendment.

Signed:

John Garvey
President, The Catholic University of America

Mary Ann Glendon
Learned Hand Professor of Law, Harvard University

Robert P. George
McCormick Professor of Jurisprudence, Princeton University

O. Carter Snead
Professor of Law, University of Notre Dame

Yuval Levin
Hertog Fellow, Ethics and Public Policy Center