Prominent RCs Write To Sebelius on Conscience Protections

National Catholic Reporter
Distinctly Catholic

26 August, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

At noon today, a group of prominent Catholics released a letter to Health & Human Services Secretary Kathleen Sebelius recommending that she amend the proposed rule on mandated health care coverage to provide for more expansive conscience protections for religious organizations. The letter is signed by some of the same academics who penned a letter to Speaker of the House John Boehner in advance of his commencement address at Catholic University in May, calling on him to support policies that reflect Catholic social teaching. The main organizer of both letters is Professor Stephen Schneck, Director of CUA’s Institute for Policy Research & Catholic Studies.

In addition to academics such as Schneck, Georgetown’s Rev. Thomas Reese, S.J., Lisa Sowle Cahill of Boston College, Margaret Steinfels of Fordham and Duquesne University law professor Nicholas Cafardi, the letter is signed by former Congresswoman Kathy Dahlkemper, one of the pro-life Democrats unseated in last year’s midterm elections as well as Kristen Day, executive director of Democrats for Life, and Sr. Simone Campbell of the social justice group NETWORK. These are the kinds of Catholics that the Obama administration has reached out to in the past, especially during the battle over health care reform, and so the impact of their call for more expansive conscience protections is likely to be heard in the White House. Indeed, the full list reads like a “Who’s Who” of prominent Catholics whose politics tilt to the left.

The letter will be delivered to Secretary Sebelius formally and will be submitted under the guidelines governing public comment on the new rule, which was announced August 1 with a 60-day comment period. The full text of the letter follows.

Dear Secretary Sebelius,

We are an ad hoc group of Catholic leaders and professors, many of whom were associated with the letter addressing Speaker Boehner’s legislative commitment to the poor ahead of his commencement address at The Catholic University of America in May. We write to you, however, to advocate enlarging conscience protections in the mandated insurance programs of the Affordable Care Act.

The Institute of Medicine’s recent determination that insurance mandated by the Affordable Care Act must extend contraception coverage in all plans—to include even post-fertilization drugs and sterilization—raised conscience protection concerns for a number of religious organizations. In response to those concerns, Health and Human Services (HHS) has proposed interim final rules that do provide limited exemptions to religious organizations. However, those exemptions as currently proposed would not extend to many important religious organizations.

The current language limits conscience protection to organizations that 1) have the inculcation of religious values as their purpose; 2) primarily employ those that share their religious tenets; 3) primarily serve persons who share their religious tenets; and 4) are a non-profit organizations. This language is too restrictive.

Catholic charities and Catholic hospitals do not fit the rule’s definition of religious organization. Catholic schools, colleges, and universities also might not fit the current definition. In light of the First Amendment’s protection of religious practice and of the 1964 Civil Rights Act’s forbidding of discrimination for religious belief and insistence on accommodation of religion in the workplace, we propose expanding the definition of religious organization in the final rule to extend conscience protection to religious charities, religious hospitals, and religious schools in regards to mandated health insurance coverage.

Title 26 of the United States Code offers appropriate guidance for defining religious organizations. The HHS interim rule references Title 26 for such consideration. Accordingly, we propose defining a religious organization as one meeting the following criteria:

If it 1) is non-profit religious, educational, or charitable organization; 2) if it engages its religious, charitable, or educational activities for bona fide religious purposes or reasons; and if 3) it holds itself out to the public as a religious organization.

Courts have applied a similar set of criteria in various contexts and have found that organizations should be exempt as “religious” because their charitable or educational activities were deeply religiously motivated, even though those activities did not primarily involve explicit proselytizing or teaching of religion and were not limited to members of the faith community in question. See, e.g., Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2011) (en banc) (“religious organization” exempt under Title VII; evangelical Protestant humanitarian relief agency); LeBoon v. Lancaster Jewish Community Center Assn., 503 F.2d 217 (3d Cir. 2007) (same Title VII exemption for Jewish-oriented community organization); University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002) (ecumenically oriented Catholic college protected from NLRB jurisdiction over faculty); Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383 (1st Cir. 1985) (Breyer, J.) (Catholic college; NLRB jurisdiction over faculty). As the court stated in Great Falls, 278 F.3d at 1346, limiting “exemption to religious institutions with hard-nosed proselytizing, that limit their enrollment to members of their religion, . . . is an unnecessarily stunted view of the law, and perhaps even itself a violation of the most basic command of the Establishment Clause-not to prefer some religions (and thereby some approaches to indoctrinating religion) to others.”

Secretary Sebelius, the language of Title 26 more fully reflects the intentions of the First Amendment and the Civil Rights Act as they pertain to matters of religious conscience. In regard to the mandated insurance coverage of the Affordable Care Act, the language of Title 26 would extend conscience protections to religious organizations on the front lines of the Catholic Church’s ancient mission to the poor and the sick.

Equality legislation used to defend conscientious objection to abortion

 (United Kingdom: 2011)

  • John Smeaton* | The two nurses . . .were employed at a hospital for ordinary nursing duties. They were then allocated to work once a week at an abortion clinic in the hospital. The abortion process did not involve surgical abortion but the increasingly common process of “early medical abortion” . . .When they became aware that they were participating in abortion they told their management that they did not want to continue but were then told that they had no choice in the matter. . . Full Text

New birth control requirements are a loss for conscience

Desert News
9 August, 2011

Hannah C. Smith

Last week, the U.S. Department of Health and Human Services issued new federal regulations that run roughshod over the moral conscience of many Americans.

Promulgated under the health care reform act commonly referred to as “Obamacare,” the new regulations would require an employer to have a health plan that covers sterilization and contraception — which could include drugs that cause abortion — as part of a larger set of “preventative services” for women. These practices are morally repugnant to many Americans — for some, because it directly contradicts their faith. For example, the doctrine of the Catholic Church, which includes roughly a quarter of Americans, explicitly prohibits such practices.

HHS, apparently recognizing the regulations’ tension with religious belief, did include an exemption from the new regulations for a “religious employer.” But close examination reveals that the exemption may actually cover very few religious employers. So the rule may force out of existence those social service and educational organizations that are the core manifestations of the Catholic doctrine to serve the poor and needy among us. . . . [read more]

Obama Plays Catch 22 with Religious Groups


Catholic League for Religious and Civil Rights

Catholic League president Bill Donohue addresses the dilemma that the Obama administration has created for religious employers:

Yesterday, the Obama administration mandated that all health insurance plans cover contraceptives and sterilization for women, though it made an exception for religious employers. But did it? Not really. To wit: a religious employer is defined, in part, as one that primarily employs, and serves, persons who share its religious tenets.

Cardinal Daniel DiNardo said this means that “our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics.” He’s right: Catholic schools, hospitals and social service agencies have a long and distinguished record of serving everyone, regardless of religious affiliation; most even employ non-Catholics. However, there are matters, like foster care programs, where same-religion requisites make sense.

The situation is even more pernicious than it looks. Consider that three years ago, then presidential candidate Barack Obama said he opposes allowing faith-based programs to hire only their own people. Since becoming president, he has authorized his administration to consider this issue on a case-by-case basis, and just recently many of his allies lobbied him to gut the religious liberty provision in hiring altogether.

In other words, the Obama administration is playing Catch-22 with religious employers. If they are too religious, Catholic social service agencies risk losing federal funds, but if Catholic hospitals are not sufficiently religious, they cannot be exempt from carrying health insurance policies that transgress their religious tenets.

The Obama administration knows exactly what it is doing, and what it is doing is burning religious institutions at both ends. This is a pretty sick game. But it is one where there is plenty of time left on the clock.

The Catholic League is the nation’s largest Catholic civil rights organization. Founded in 1973 by the late Father Virgil C. Blum, S.J., the Catholic League defends the right of Catholics – lay and clergy alike – to participate in American public life without defamation or discrimination.

Catholic Health Association Response to Women’s Preventive Services Regulations


Catholic Health Association of the United States

WASHINGTON, D.C. — The following statement is being released by Sr. Carol Keehan, DC, president and chief executive office of the Catholic Health Association of the United States (CHA):

The Catholic Health Association is both pleased and concerned by the U.S. Department of Health & Human Services’ (HHS) recent actions on preventive services for women.

We are delighted that health insurance coverage must include critical screening services without any cost-sharing. What to some may seem like small amounts as co-pays for mammograms, pap smears, etc., has proven to be an effective barrier to care for women who have low incomes.

Our hope is that eliminating this barrier will result in earlier diagnosis at a treatable stage of many diseases such as cancer and diabetes. We applaud this aspect of the recommendations of the Institute of Medicine and their affirmation by the Health Resources and Services Administration.

However, CHA is very concerned about the inadequacy of the conscience protections with respect to the coverage of contraception. As it stands, the language is not broad enough to protect our Catholic health providers. Catholic hospitals are a significant part of this nation’s health care, especially in the care of the most vulnerable. It is critical that we be allowed to serve our nation without compromising our conscience.

HHS is accepting comments on its definition of religious employer and has invited alternative definitions. We will be submitting written comments to HHS and will continue our dialogue with government officials on the essential need for adequate conscience protections.

We appreciate that the Administration does not intend to include abortifacient drugs as covered contraception. Our comments will address our concerns about the mechanism of action of certain FDA-approved contraceptive drugs.

The Catholic Health Association of the United States (CHA), founded in 1915, supports the Catholic health ministry’s commitment to improve the health status of communities and create quality and compassionate health care that works for everyone. The Catholic health ministry is the nation’s largest group of not-for-profit health systems and facilities that, along with their sponsoring organizations, employ more than 750,000 women and men who deliver services combining advanced technology with the Catholic caring tradition.

Conscience Regs Are Totally Inadequate

National Catholic Reporter
Distinctly Catholic

2 August 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

. . .to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

The Department of Health and Human Services released it new rule regarding mandated coverage, with no co-pays, for women’s health insurance policies. As a part of that rule, HHS included conscience protections for religious institutions, or at least HHS claimed to be doing so. In fact, the new rule is totally inadequate and the best that can be said about it is that it is provisional. HHS explicitly invited comment for sixty days before the rule is finalized.

Here is the key language governing the exemption for religious organizations:

“a religious employer is one 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 non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.”

The rule notes that this language tracks with the language in 28 states that allow such exemptions on religious grounds. It states:

The definition set forth here is intended to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.

This is presented as an effort to “reasonably balance” interests. But, there is no balance. There is a First Amendment guarantee that Congress make no law restricting the free exercise of religion. Last time I checked, there is no First Amendment right to an insurance policy that covers contraception.

Of course, the First Amendment also prevents religious establishment, and some women’s advocates see the new rule as an unacceptable interference by religion. Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center, denied the very idea that the Affordable Care Act gave the administration the authority to include a religious exemption. “We don’t think there’s any authority in the law to have a conscience clause,” Waxman said. “It’s unfortunate that the administration is considering this proposal to allow some employers to deny this coverage to women.” Again, the authority to provide a religious exemption may, or may not, be in the ACA but it is certainly in the First Amendment. President Obama, who once taught Constitutional Law, surely knows this.

“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities in a press release from the USCCB.

The problem is with the conjunction “and.” If that conjunction were switched to “or” the new rule would be fine. The four items listed as defining a “religious employer” include “primarily employs person who share its religious tenets.” But, Catholic schools and hospitals employ lots of non-Catholics. The language also requires a religious employer be one that “primarily serves persons who share its religious tenets” but, again, Catholic hospitals and schools take care of all people. Under this rule, we would have to kick out poor Protestant kids from our schools, and refuse to treat Jews in our hospitals. Is that what the administration intends? As Sister Mary Ann Walsh said in a blog post at the USCCB media blog, “HHS’s reg conveniently ignores the underlying principle of Catholic charitable actions: we help people because we are Catholic, not because our clients are. There’s no need to show your baptismal certificate in the hospital emergency room, the parish food pantry, or the diocesan drug rehab program. Or any place else the church offers help, either.”

Sister Carol Keehan, head of the Catholic Health Association, acknowledged that parts of the new rule are laudable. “There are many aspects of this new rule that are vital in protecting life,” Keehan told me yesterday. “Eliminating deductibles and co-pays for screening services is wonderful for protecting the health of all women but especially those who are poor.” But, Keehan also noted that the conscience exemptions need to be air-tight. “We have a comment period in which to study and recommend any changes necessary to assure the conscience protection language is adequate,” Keehan said. “Adequate conscience protection will be essential and we will study what has been released, dialogue and submit comments to assure we have adequate conscience protection.” She also praised the administration for removing abortifacients from the list of mandated coverage, although there is some debate about the effects of one of the FDA-approved drugs. The administration may not listen to me. They may not listen to the USCCB. But, they surely should listen to Sr. Carol without whom there would be no Affordable Care Act in the first place.

The White House should be aware that this is a really, really big issue for us Catholics. And, to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

This is also a test case for the White House Faith-Based Office which serves as a liaison to the religious community. They have much improved their outreach to Catholics this year, as I noted in an article last month. But, there remains an outstanding question: How much juice do they have within the administration? The Faith-Based Office knows how important this is to Catholics. Can they persuade others within the White House and HHS to act on that knowledge? To be clear. Keeping the rule as is would give me great pause in casting my ballot for Barack Obama next year, not because he failed to do right by my Church, but because anyone who fails to grasp the constitutional issue here probably should not be entrusted with the post of Chief Magistrate under that same Constitution.

Sixty days is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let’s hope the administration will listen.

USCCB: HHS Mandate for Contraceptive and Abortifacient Drugs Violates Conscience Rights


United States Conference of Catholic Bishops

WASHINGTON—The U.S. Conference of Catholic Bishops (USCCB) sharply criticized a new HHS “preventive services” mandate requiring private health plans to cover female surgical sterilization and all drugs and devices approved by the FDA as contraceptives, including drugs which can attack a developing unborn child before and after implantation in the mother’s womb.

“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities.

“For example, under the new rule our institutions would be free to act in accord with Catholic teaching on life and procreation only if they were to stop hiring and serving non-Catholics,” Cardinal DiNardo continued.“Could the federal government possibly intend to pressure Catholic institutions to cease providing health care, education and charitable services to the general public?Health care reform should expand access to basic health care for all, not undermine that goal.”

“The Administration’s failure to create a meaningful conscience exemption to the preventive services mandate underscores the need for Congress to approve the Respect for Rights of Conscience Act,” the Cardinal said.That bill (H.R. 1179), introduced by Reps. Jeff Fortenberry (R-NE) and Dan Boren (D-OK), would prevent mandates under the new health reform law from undermining rights of conscience.

Cardinal DiNardo added: “Catholics are not alone in conscientiously objecting to this mandate.The drugs that Americans would be forced to subsidize under the new rule include Ella, which was approved by the FDA as an ‘emergency contraceptive’ but can act like the abortion drug RU-486. It can abort an established pregnancy weeks after conception. The pro-life majority of Americans – Catholics and others – would be outraged to learn that their premiums must be used for this purpose.”

“HHS says the intent of its ‘preventive services’ mandate is to help ‘stop health problems before they start,’ said Cardinal DiNardo. “But pregnancy is not a disease, and children are not a ‘health problem’ – they are the next generation of Americans.”

“It’s now more vital than ever that Congress pass the Respect for Rights of Conscience Act to close the gaps in conscience protection in the new health care reform act, so employers and employees alike will have the freedom to choose health plans in accordance with their deeply held moral and religious beliefs.”

In a July 22 letter supporting the bill, Cardinal DiNardo wrote: “Those who sponsor, purchase and issue health plans should not be forced to violate their deeply held moral and religious convictions in order to take part in the health care system or provide for the needs of their families or their employees.To force such an unacceptable choice would be as much a threat to universal access to health care as it is to freedom of conscience.”

Cardinal DiNardo also addressed the Institute of Medicine’s recommendations on preventive services for women in a July 19 statement.