A new federal regulation that
would require employer insurance plans to provide contraceptives that
some consider abortifacient and voluntary sterilization among cost-free
preventive care measures such as inoculations and Pap smears is being
greeted with varying levels of dismay in Catholic dioceses across the
country.
The regulation provides a narrow religious exemption for an employer
that "(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 specific sections of the Internal Revenue Code.
This definition is "a direct infringement on our ability to do
ministry," said George Wesolek, communications director for the
Archdiocese of San Francisco. "It's part of a larger issue," he said.
"The room for religious liberty is getting narrower and narrower" in the
United States.
The Health and Human Services Department regulation, announced Aug. 1,
has a 60-day comment period ending Sept. 30, and could go into effect in
August 2012. It is part of the Patient Protection and Affordable Care
Act, and Wesolek said it "could have been avoided by a unified effort by
the Catholic Church when the health care bill was being considered."
James F. Sweeney, legal counsel to the Diocese of Sacramento, was among
the Californians who unsuccessfully fought a similar state law through
the California courts and tried to take it to the U.S. Supreme Court,
which declined to hear the case.
He called the exemption "a complete sham" because it omits the reality
of the church at work in the world. He said "there was a time when
government attempted to protect religious exercise" but this regulation
is instead "tolerating (religion) in the least significant ways
possible."
He said a lot of dioceses in states that instituted mandated coverages
contrary to Catholic teaching were able to establish self-insurance
plans which came under federal regulation and so were exempt from the
state laws. Others, such as the Diocese of Burlington, Vt., were able to
avoid state mandates by using insurance companies based in states
without mandates.
According to Richard Doerflinger, associate director of the U.S.
bishops' Secretariat for Pro-Life Activities, 28 states have some kind
of mandated coverage for contraceptives, but none is as sweeping as the
HHS regulation. Nineteen of those states have some kind of religious
exemption, most of which simply state an employer may be exempt "for
religious reasons."
California and New York, both states that fought the mandate to their
highest state courts and were declined hearing by the Supreme Court,
have exemption descriptions similar to the new regulation, which
Doerflinger said is "quite unprecedented in federal law." He said the
new federal regulation takes away the option of self-insurance: "Your
last refuge is gone."
The U.S. Conference of Catholic Bishops is preparing to submit a formal
comment on the proposed religious exemption, and most state Catholic
conferences are deferring to the national office for that purpose.
Doerflinger said even the narrow exemption is offered only to employers,
not to individuals or to insurance companies that have conscience
problems with participating in a plan that goes against Catholic
teaching. In addition to covering birth control pills and voluntary
sterilization, the regulation specifically covers "emergency
contraception" such as the drug ella, which operates in a way analogous
to the abortion drug RU-486 and is considered abortifacient by Catholic
teaching though not by federal law.
Deacon Patrick Brannigan, executive director of the New Jersey Catholic
Conference, said his conference sees the regulation as "an unprecedented
threat against religious individuals and institutions." For one thing,
he said, the regulation says the agency "may" establish a religious
exemption -- it doesn't read "shall."
More importantly, by saying that an exempt organization must be one that
serves primarily those who share its beliefs, it ignores the fact that
"while we hope that people see Christ in all that we do," Catholic
agencies offer services to people "without asking who they are."
Sister Patricia Codey, a Sister of Charity of St. Elizabeth who is
president of the Catholic HealthCare Partnership of New Jersey, agreed.
"Catholic hospitals across the country provide care to all those who
come to their doors, especially the poor. We don't refuse treatment to
anyone."
Dennis Poust, director of communications for the New York State Catholic
Conference, said the narrowness of the proposed exemption "goes against
everything our religion stands for."
Some dioceses have responded or intend to respond in different ways for
their diocesan central offices and schools, which they believe are
covered by state exemptions, and for such separately incorporated
entities as Catholic hospitals and Catholic Charities.
In some cases the latter are complying with state mandates, under
protest. Some offer employees a choice of insurance plans, with or
without coverage for contraception and other services which go against
church teaching.
Sister Jennifer Votraw, a Sister of St. Joseph who is director of
communications for the Diocese of Ogdensburg, N.Y., said, "We'll abide
by the law, but are complying under protest. We feel our consciences are
being violated and not respected."
Chuck Thibaudeau, director of human resources for the Archdiocese of
Atlanta, takes an opposite tack; he said he's been advised that the
5,000 employees of the church there are exempt from the state mandate
although it is not one of the states that spells out a formal exemption.
He said he expects the church to be exempt from the federal regulation
as well.
"They've used the word 'primarily,'" he said, and although employees may
not necessarily be Catholic, they share the major tenets of the
Catholic Church and serve people who also do.