During a recent appearance at Harvard University’s School of Public Health, U.S. Department of Health and Human Services Secretary Kathleen Sebelius signaled that the HHS mandate’s narrow religious “exemption” would soon be finalized.
“As of Aug. 1, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package,” Sebelius stated.
Her remarks came just one day after the government closed the “open comment period” it established to allow U.S. citizens and organizations to register their concerns regarding the HHS mandate, which mandates coverage of contraception, sterilization and abortifacient drugs.
The Obama administration has not formally confirmed its final rulemaking on the accommodation, which directs the insurance carriers of church-affiliated universities, hospitals and social agencies (or another third-party entity for self-insured religious employers) to accept full administrative and financial responsibility for implementing the mandated coverage.
On April 15, Archbishop William Lori of Baltimore, the chairman of the Ad Hoc Committee for Religious Liberty, spoke with Register senior editor Joan Frawley Desmond about why Church leaders are organizing the "2013 Fortnight for Freedom," June 21-July 4, his hopes for the legal challenges to the mandate and why Catholics can’t retreat from the battle for religious freedom.
After the White House invited “comments” on the latest iteration of its “accommodation” to the HHS contraception mandate, the U.S. bishops submitted a letter stating that it still offered no protection for Catholic “organizations that contribute most visibly to the common good through the provision of health, educational and social services.” Yet, during her April 8 visit to Harvard, Secretary Sebelius asserted that the proposed rule upheld “the religious beliefs of an employer” and that it would soon be signed into law.
Keep in mind that Secretary Sebelius made her remarks in an informal setting. It was not an official announcement, so the U.S. Conference of Catholic Bishops would not take that as the last word and thus cease its conversation with the administration. We are pressing our case very strongly.
The so-called “accommodation” removed the offending language that explicitly defined what a “church” is. But the problem remained because the new proposed rulemaking referred to a section of the Internal Revenue Service code that substantially narrows what a “church” is and does and also gives no relief to conscientious private employers.
Further, while the earlier version of the rule would have made it easier to exempt Catholic Charities’ operations, this new rule looks like it would make it more difficult to exempt those operations.
No one is sure who is really going to pay for these services. But it looks like conscientious employers and church organizations will end up paying for them indirectly — if not directly.
Also, employees and their families who don’t want this coverage will be forced to get it. The mandate includes contraception counseling for the teenage daughters of employees, so it is a much bigger intrusion than people realize.
The U.S. bishops are defending the free exercise of church-affiliated institutions, but also the conscience rights of for-profit employers who object to the mandate on moral grounds.
Plaintiffs in HHS legal challenges include business leaders who want to bear witness to Christian principles. We cannot be silent about the conscience rights of private employers and then say on Sunday, “Bear witness to your faith in the workplace.”
Once the administration does formally confirm the “accommodation,” how will that likely affect the 54 legal challenges to the mandate?
That is more a question for a lawyer than a bishop. Arguably, finalized rulemaking would affect the “ripeness” question [in cases where the judge has ruled that the lawsuit is premature because the regulations haven’t been signed into law or implemented]. Once the rule is finalized, we will know what the rule requires of us and what line of argumentation will hold up in court.
A group of state attorneys general also sent a “comment” to HHS, registering concern about how the accommodation’s narrow religious exemption will be applied when other morally problematic provisions are authorized under the Affordable Care Act.
We do believe that the slope is slippery. By administrative fiat, the list of preventive services could change at the federal level.
No one is saying that the list of “preventive services” is exhaustive. It could expand to include euthanasia and other kinds of reproductive services that are problematic.
In Washington state, legislation has been proposed to include elective abortion as a service covered by every health plan. There is a religious exemption in that proposed legislation, but it is a harbinger as we move forward.
We should be very concerned about the precedent this is setting, and it seems to me that the contraception mandate is the appropriate place to draw the line.
Some states have passed or debated religious-freedom legislation to address a variety of free-exercise issues.
The best example is what happened in Kentucky. The legislation passed there is really robust and provides the kind of religious-freedom protection that we are looking for across the board. I understand that legislation was vetoed by the governor and the veto was overridden. My congratulations to Archbishop [Joseph] Kurtz and the Kentucky Catholic Conference. The law enacted by the state represents a model for the nation.
The political landscape varies across the country. And it’s not to be forgotten that a majority of Americans now think of themselves as “pro-life,” and that trend is likely to be first felt at the state level before it is felt at the federal level.
Last year, soon after the administration announced that the HHS mandate would be accompanied by a narrow exemption deemed “unacceptable” by the U.S. bishops, you helped to launch the first "Fortnight for Freedom." Why are you preparing for a second "Fortnight" event?
The "Fortnight" was conceived of as an opportunity for prayer and reflection around a broad range of religious-liberty issues. It is also a way of drawing together the Catholic community, as well as the interfaith and ecumenical community.
Last year, 80% of dioceses reported on activities they had undertaken during the "Fortnight," and some were very substantial.
At that time, we were dealing with the HHS mandate, and now we are on the cusp of having that mandate finalized — and we know where the secretary wants to go on it.
We also are awaiting the U.S. Supreme Court’s rulings [on the constitutionality of Proposition 8 and the Defense of Marriage Act] that could change the definition of marriage and have implications for religious freedom. There are religious-freedom issues at the state level.
Nationally, the "Fortnight" will begin on June 21, with a Mass at the Basilica of the National Shrine of the Assumption of the Blessed Virgin Mary, the nation’s first Catholic cathedral [in Baltimore], and end on July 4, with Mass at the Basilica of the National Shrine of the Immaculate Conception [in Washington].
Dioceses are being asked to organize their own Masses, rallies and study groups to encourage people to think and pray about religious liberty and to speak with their elected representatives.
The "Fortnight" will help us to keep the issue of religious freedom before us, much as we did with the pro-life movement. This year we have linked life, marriage and religious liberty because all three are joined at the hip in this country.
During a 2012 address at the University of Notre Dame, the apostolic nuncio to the U.S., Archbishop Carlo Maria Vigano, noted that, in the West today, threats to the religious freedom of Catholics arise because of hostility toward Church teaching, not hostility toward a specific ethnic group — as once experienced by immigrants like the Irish. Yet many U.S. Catholics do not understand this shift and thus question whether a credible threat exists.
Catholics who lived through the whole process of assimilation, when Catholics became more socially acceptable, might feel like we are retreating into a ghetto.
But what we are doing is reasserting our right to be ourselves in public and retain the legitimate freedom to engage the culture. We cannot evangelize if we cannot engage.
Pope Francis seems likely to challenge efforts to present the debate over issues like the HHS mandate or same-sex “marriage” as a choice between upholding Church teaching on moral issues or setting aside such doctrinal concerns to serve those in need.
The temptation will be for some to say the Pope wants to serve the poor, and, therefore, we should lay aside our concern on the HHS mandate and go along so that we can continue our social services.
But from what I have read, our Pope would regard that as a false choice. He believes firmly that we have to be ourselves in public, as we engage robustly in a Gospel-centered style of life and works of charity, private and corporate.
Building an understanding of the need to defend religious freedom is going to take time, patience and perseverance — just as the pro-life movement has taken time, patience, perseverance and prayer. Back then, there were people who said, “This will be hopeless, and the pro-life position will always remain a minority point of view.” They still say that today, asking, “Why should I go to the March for Life?" Yet it is the issue that won’t go away. And perhaps because of the persistence of pro-lifers, the U.S. Supreme Court will not make a sweeping decision about marriage, as they did with abortion.
We have to pray about this and build [a Catholic response], even when people tell us, “You are failing; you are making a mountain out of a molehill. You are shrill and extreme.” One must proceed with peace and patience and keep building day by day.
Joan Frawley Desmond is the Register’s senior editor.