After an initial analysis of the finalized HHS mandate, the U.S.
bishops are warning that despite changes, the regulation still threatens
the Church’s ability “to carry out the mission and ministry of Jesus
Christ.”
“Although the Conference has not completed its analysis of the final
rule, some basic elements of the final rule have already come into
focus,” said Cardinal Timothy M. Dolan of New York, president of the
U.S. Conference of Catholic Bishops.
In a July 3 statement, he explained that so far, the conference “has not
discovered any new change that eliminates the need to continue
defending our rights in Congress and the courts.”
The statement came in response to the release of the final rules
regulating the federal HHS mandate, which requires employers to offer
health insurance plans that cover contraception, sterilization and some
drugs that can cause early abortions.
Issued under the Affordable Care Act, the mandate has become the subject
of lawsuits from more than 200 plaintiffs who claim that it forces them
to violate their deeply-held religious convictions.
Amid protests around the nation, the Obama administration has engaged in
a multi-step process to modify the mandate in order to allow for
religious freedom. The release of the final rule on June 28 completed
that process.
The final rule allows some religious employers to have a full exemption
from the mandate.
To qualify, they must meet criteria laid out in
February, which align with Internal Revenue Code, Section
6033(a)(3)(A)(i) or (iii), which “refers to churches, their integrated
auxiliaries, and conventions or associations of churches, as well as to
the exclusively religious activities of any religious order.”
The administration has stated that this will cover primarily “churches,
other houses of worship, and their affiliated organizations.”
Faith-based groups that are not affiliated with a specific house of
worship, such as many religious hospitals, schools and charities, are
not covered by the exemption. To address these groups, the
administration is offering an “accommodation” instead.
The finalized accommodation will require insurance issuers to “provide
payments for contraceptive services” directly to women working for
religious employers who object to providing them.
If a religious
employer is self-insured, a third-party administrator will act in the
place of an insurer to arrange the provision of employee's
contraceptives.
Earlier proposals for the accommodation had suggested that the
objectionable services would be covered under a separate insurance plan.
The change to direct payments ensures that insurance providers will
bear the burden for funding the contraceptives.
Cardinal Dolan observed that this change “seems intended to strengthen
the claim that objectionable items will not ultimately be paid for by
the employer's premium dollars,” but said that it remains “unclear
whether the proposal succeeds in identifying a source of funds that is
genuinely separate from the objecting employer, and if so, whether it is
workable to draw from that separate source.”
The finalized mandate requires that the insurance issuer “must ensure
that it does not use any premiums” from objecting organizations to fund
the contraception and related products.
The Obama administration has
maintained that such products are “cost neutral” and can be paid for by
insurance companies with no reimbursement because of the decreased
pregnancy and birth costs and the other “health benefits” that
contraception brings.
However, in a 2012 nationwide survey, pharmacy directors rejected the
notion that contraceptives could be issued at no cost to insurance
companies.
Another major concern raised by Cardinal Dolan is the administration’s
attempt to create different categories of religious freedom,
distinguishing among those employers that receive a full exemption,
those that receive only an accommodation and those that are running
for-profit businesses and receive no protection at all.
The administration has claimed that religious freedom does not extend to
decisions made about the governance of for-profit companies.
However,
Cardinal Dolan explained that the bishops “are concerned as pastors with
the freedom of the Church as a whole – not just for the full range of
its institutional forms, but also for the faithful in their daily lives –
to carry out the mission and ministry of Jesus Christ.”
Another possible area of concern is the unwilling facilitation of
contraception under the accommodation, as the “objectionable items will
still be paid for by virtue of the fact that an employee belongs to the
Catholic employer's plan,” he said.
Out of three possibilities proposed for self-insured groups, the
cardinal added, the final mandate utilizes the one that the bishops had
identified as “the most objectionable,” as it “treats the employer's
very act of objecting to coverage of sterilization, contraception, and
abortifacients as the legal authorization for a third-party
administrator to secure the objectionable coverage.”
Noting that many of the bishops’ original critiques remain unaddressed
in the final mandate, Cardinal Dolan affirmed that the U.S. bishops will
“continue to examine” the changes in the 110-page document and will
have more to say on the mandate after determining whether it will
undermine “the effective proclamation” of Church teaching by religious
groups.