Lines Crossed: Separation of Church and State.

Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?

US House of Representatives
Committee on Oversight and Government Reform

16 February, 2012

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Oklahoma Christian University, which is located in Oklahoma City, is affiliated with the churches of Christ. As a university affiliated with this group of protestant churches, we believe strongly in our right to practice our faith without interference from the government. While we believe that "every person is to be in subjection to the governing authorities," we respectfully ask that you not force institutions like Oklahoma Christian University to choose between following their religious beliefs or violating federal law.

We oppose the Obama Administration's employer mandate requiring that all health insurance plans cover abortifacient drugs for four reasons:

1. Requiring our plan to cover abortion-inducing drugs will place the University and plan participants in the position of subsidizing the purchase of drugs that they believe causes the destruction of a human life;

2. The exemption from the requirement that plans cover contraceptives and abortifacients is far too narrow and violates the First Amendment;

3. There are reasonable alternatives to the employer mandate; and

4. The President's announcement does not present a workable solution. Coverage of Abortion-Inducing Drugs Is Objectionable to Many Employers and Plan Participants

We have no concerns about allowing our plan to cover contraception; rather, our concerns deal with the coverage of abortive agents. The government should not force institutions like Oklahoma Christian University to offer a health plan that covers abortifacients like Plan B and ella.

First, coverage of abortion-inducing drugs is objectionable to many employers and plan participants. Our views differ from those representing Catholic institutions here today. We have no concerns about allowing our plan to cover contraception; rather, our concerns deal with the coverage of abortive agents. The government should not force institutions like Oklahoma Christian University to offer a health plan that covers abortifacients like Plan B and ella.

Just as many pharmacists choose not to dispense abortion-causing drugs because to do so violates their core religious beliefs, we do not believe abortifacients should be covered in our University health plan. Requiring a religiously affiliated employer to fund abortifacients that are viewed by it and by many of its employees as the destruction of a human life violates our right to the free exercise of our religious beliefs.

While our views differ from those of our Catholic friends regarding what our plan should cover, our views are exactly the same on the issue of whether the government should be able to require individuals or institutions to violate their religious beliefs. The answer to that is a resounding no. This issue is not one about which only Catholic institutions feel strongly. Many protestant institutions share similar concerns.

The Exemption Is Too Narrow

Second, the exemption from the requirement that the plans cover contraceptives and abortifacients is too narrowly drafted. As drafted, the exemption seems to apply only to churches, synagogues and mosques. It is clear that it would not apply to religious institutions such as Oklahoma Christian University and hundreds of similarly situated religious colleges, universities, and other organizations.

The exemption requires that an organization have "the inculcation of religious values as its purpose." While universities like Oklahoma Christian certainly have inculcation of religious values as a very important and central purpose, we are an institution of higher education rather than a church. Our mission is to "transform lives for faith, scholarship and service." In our University, various academic disciplines are taught from a Christian worldview. This is one of the reasons I chose to work at a Christian university after a long career in the corporate world.

Every semester as our faculty members write their syllabi for classes, they think about important faith issues in every discipline. They ask questions like "how can this class help to build the students' faith?" and "what do the Scriptures say about topics we will cover in this class?" We teach our students not just to be proficient as engineers, historians or writers, but to approach their disciplines from a Christian worldview. We incorporate our faith in everything we do at Oklahoma Christian, from daily chapel to prayer before intramural athletic events to service activities around the world. We teach our students to follow their conscience and we cannot do less as an educational institution.

And how religious must we be to claim the exemption? Will the federal government examine whether faith-based universities are religious enough? Is it enough that we have Bible classes? What if we were to no longer have daily chapel?

Which government agency would be tasked with making the determination of whether a particular institution is religious enough to claim the exemption? The Department of Health and Human Services would be ill-equipped to make the necessary review and determination on this important topic, yet this is exactly what the draft regulations do.

The exemption also requires that the institution hire and primarily serve those who share its religious tenets. While Oklahoma Christian hires almost exclusively from the churches of Christ, I am aware that many strong faith-based institutions of higher education do not hire solely from their faith tradition. A majority of our students are drawn from the churches of Christ, but many of our students come from a variety of faith traditions or no religious background at all. The decisions that faith-based universities make on these issues of whom to hire and whom to serve reflect differing interpretations of the scripture, theological traditions and the missions of the schools.

The exemption's narrow wording causes concern because of the apparent requirement that the institution be organized for tax purposes as a "church, their integrated auxiliary, or conventions or associations of churches." There are many faith-based institutions that are not affiliated with a particular church. And churches of Christ, with which Oklahoma Christian University is affiliated, do not have any denominational structure. Each congregation is fully autonomous. It appears that Oklahoma Christian University would not fall within the narrow language of the exemption.

Finally, the exemption's language is too narrow because it appears to apply only to the group health plan offered by a religious institution to its employees. Universities typically offer a plan to students in addition to a plan for employees. The student plan is offered as a service for students who are no longer covered under their parents' health insurance plans.

The exemption, as now drafted, does not appear to exempt student plans offered at Christian universities like Oklahoma Christian. But students who choose to enroll at Oklahoma Christian also agree to abide by a student code of conduct that states that "all members of the university community are expected to avoid sexual relations outside of marriage." Any exemption for plans based on religious convictions must also address plans offered by institutions of higher education for their students. To draw an artificial distinction between the plan that an institution offers to its employees and one that it offers to its students would plan institutions in the morally and logically inconsistent position of offering something they find morally objectionable to the very group that they are educating and training.

Reasonable Alternatives Exist

Third, reasonable alternatives to the employer mandate exist. Nothing about the Administration's rule takes away womens' rights to obtain contraceptives and abortion-inducing drugs. This debate is not about whether women have the right to obtain these drugs. Rather, this debate is about whether those who believe that contraceptives or abortifacients violate their religious convictions must pay for them. There is a vast difference between the right to make a purchase for oneself and requiring someone else to pay for it.

Reasonable alternatives exist for those who do not share the religious concerns expressed here today. Women can choose to purchase abortion-causing drugs on their own, can work for employers that offer plans covering abortifacients, or can purchase additional private health insurance that provides such coverage. In many instances, this might be insurance through a spouse's employer.

Another alternative is to provide a credit to employees to purchase their own insurance. This would position the employee to purchase the insurance product that best fits the individual employee's wants and needs. To do this, individuals must be able to purchase their own insurance with pretax dollars, just as they can through their employers. And because many states require that contraceptives be included in plans, employees should be able to purchase plans across state lines, though that is not currently an option under the McCarran Ferguson Act.

Any of these options would avoid situations where those who have a religious objection to covering abortion-causing drugs are not forced to violate their religious convictions. Some have argued that it would, in fact, be less expensive for institutions to offer birth control and abortifacients than to exclude them. However, the exercise one's religious liberty does not depend on the price tag attached.

The President's Announcement Does Not Present a Workable Solution

Fourth, the President's announcement does not present a workable solution. The Administration has not yet proposed anything new. . . All the Administration has offered to do is to discuss the issue further.

Fourth, the President's announcement does not present a workable solution. The Administration has not yet proposed anything new. The summary of the final rules states: "These regulations finalize, without change, interim final regulations authorizing the exemption of group health plans and group health insurance coverage sponsored by certain religious employers. . . ." (emphasis added)

All the Administration has offered to do is to discuss the issue further. The Administration has said that insurance companies rather than the plan sponsors will offer the contraceptives and abortion-inducing drugs at no cost. This may provide palliative care for the conscience for a few, but it does not provide any assistance to those institutions with self-funded plans. The assurance of the Administration that it would work with religious organizations that sponsor self-funded plans in the coming days to reach a compromise is too little assurance on too great a matter. And this suggestion does nothing to alleviate the concerns of institutions sponsoring self-funded plans.

In making his announcement, the President said, "Let me repeat: These employers will not have to pay for or provide contraceptive services, but women who work at these institutions will have access to free contraceptive services just like other women." The President's announcement fails to recognize the realities of the insurance marketplace. The payment for the contraceptives must come from somewhere and it will not be from insurance companies' profit margins. Rather, plan sponsors and participants will end up footing the bill through higher overall rates. Whether paid directly or indirectly, the moral issue remains the same for plan sponsors and for many plan participants.

Forcing employers to cooperate in offering drugs or services that the employer believes are morally objectionable leaves the employer in the same moral quagmire as the original regulations.

Finally, the proposed approach cannot work without a plan sponsor's involvement. Even if the employer does not directly fund a portion of the contraceptive or abortifacient cost, the employer must still communicate with the insurance company regarding who is covered, applicable dates of coverage and the like. In other words, the employer's involvement in arranging coverage of objectionable drugs is inescapable, compromise or not. Forcing employers to cooperate in offering drugs or services that the employer believes are morally objectionable leaves the employer in the same moral quagmire as the original regulations.

We ask that the Administration and the Congress overturn these regulations because they infringe on religious liberty.