WASHINGTON — In a striking reversal with unpredictable political consequences, President Barack Obama’s most powerful ally in his fight with the U.S. bishops over the contraception mandate has reversed herself.
In a five-page letter to the U.S. Department of Health and Human Services, dated June 15, Sister Carol Keehan, the president and CEO of the Catholic Health Association (CHA), registered her opposition to the federal law requiring co-pay-free contraception, abortion drugs and sterilization for all private employer health plans.
“The more we learn, the more it appears that the ... approaches for both insured and self-insured plans would be unduly cumbersome and would be unlikely to adequately meet the religious-liberty concerns of all of our members and other Church ministries,” stated the letter, which was signed by Sister Carol and two other CHA board members.
“t is imperative for the administration to abandon the narrow definition of ‘religious employer’ and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health-care organizations and other ministries of the Church.”
The Obama administration had no immediate comment, but a Washington Post article on the late-breaking story underscored the significance of Sister Carol’s unexpected reversal:
“As the largest private health-care provider in the nation, overseeing a network of hundreds of hospitals and medical facilities, the CHA is a critical player in health-care issues. Many accused Keehan of showing the White House more deference than she did the hierarchy.”
The Becket Fund for Religious Liberty, a public interest group representing a number of plaintiffs challenging the federal law, welcomed Sister Carol’s policy reversal.
“We at the Becket Fund had no doubt that once people examined the administration's faux 'accommodation,’ they would quickly realize it had no plans to lift the burden on conscience caused by its illegal and unconstitutional mandate. We therefore welcome recent statements made by organizations like the Catholic Health Association that the accommodation is unworkable, impractical and woefully inadequate to safeguard religious freedom,” Kyle Duncan, general counsel of The Becket Fund for Religious Liberty, told the Register.
“The Becket Fund will continue to fight the mandate in court, along with many other organizations. As of today, 23 separate lawsuits have been filed on behalf of 56 individual plaintiffs, representing hospitals, universities, businesses, schools and individuals, all speaking with one voice to affirm the freedom of religion guaranteed by the Constitution,” said Duncan.
The Becket Fund represents the Eternal Word Television Network in its legal challenge against the mandate. The Register is a service of EWTN.
Sister Carol’s action comes just days before the launch of the U.S. bishops’ Fortnight for Freedom, a two-week period of prayer and activities affirming the importance of securing the “first freedom” for future generations of Americans.
By the end of June, the Supreme Court is also expected to hand down its decision on the new health bill, which gives HHS the authority to mandate the controversial provisions in the federal rule. Constitutional scholars say it is unlikely that the high court will overturn the entire health bill.
The CHA letter asked HHS administrators to “find a way to provide and pay for these services directly without requiring any direct or indirect involvement of ‘religious employers,’ as broadly defined.”
Otherwise, the letter advised, the federal government should act to include any objecting entity within a broader exemption if it “shares common religious bonds and convictions with a church.”
After the Obama administration approved the mandate on Jan. 20, Sister Carol, a member of the Daughters of Charity of St. Vincent de Paul, expressed strong reservations about its narrow religious exemption.
But when Obama proposed an “accommodation” on Feb. 10, passing on costs for co-pay-free contraception, abortion drugs and sterilization to insurance companies, she expressed satisfaction with the new plan. Her stance was widely cited by Democrats and commentators supporting the president to validate his policy.
At the time, media reports suggested that Sister Carol had received special treatment from the White House. A Feb. 10 New York Times story stated that the president’s “accommodation” was designed specifically to address Sister Carol’s concerns, not those of the bishops.
“The fight was for Sister Carol Keehan — head of an influential Catholic hospital group, who had supported President Obama’s health-care law — and Catholic allies of the White House seen as the religious left,” reported the Times.
But Richard Doerflinger, the chief lobbyist for the bishops’ conference on pro-life issues, told the Register back then that the U.S. Conference of Catholic Bishops' lawyers quickly determined that nothing of substance had changed.
“The only thing that has force of law is that same final rule. It’s still in place. The rest is something that might happen,” said Doerflinger at the time. The administration told the USCCB, he said, that “some time in the coming months we will issue new rulemaking for organizations that are not exempt from the mandate.”
Thus, the bishops opposed the "accommodation," expressing "serious moral concerns” in a statement that noted the large number of Catholic institutions that self-insured and thus would be directly responsible for covering the services. But bishops also noted that insurance companies were likely to pass on the costs of providing co-pay-free services to employers.
The USCCB maintained that position after the administration spelled out its proposal for passing on costs for the services in an “Advanced Notice of Proposed Rulemaking (ANPRM)” issued on March 21.
More Robust Language
Sister Carol’s backing of the "accommodation" raised the bar for the bishops as they continued their campaign to maintain pressure on the administration to withdraw the entire mandate or broaden the religious exemption and offer strong individual conscience protections.
When then-Bishop William Lori of Bridgeport, Conn., chairman of the bishops' Ad Hoc Committee for Religious Freedom, who is now the archbishop of Baltimore, testified in several House hearings on the issue, Democratic legislators noted that the CHA backed the accommodation. The perceived divisions within the Church led the mandate’s supporters to raise questions about the credibility of the bishops’ position.
In the months following the accommodation, however, visitors to the CHA website were greeted with an announcement that offered few assurances, and the CHA told members it was seeking clarification of the proposed accommodation, which had not been formally incorporated into the federal rule and thus had no binding force.
As legal challenges against the mandate were filed by a growing number of plaintiffs throughout the country, the Obama administration, in turn, filed papers in court promising to resolve the issue and requesting that the cases be dismissed.
Over the past four months, religious leaders have consistently expressed strong concern that the religious exemption in the mandate’s language is too narrow and only shields houses of worship, not church-affiliated social-service agencies, universities and hospitals.
In Atlanta, during the bishops' meeting last week, Archbishop Lori and other speakers stressed the larger framework for this emerging threat to the free exercise of Catholic institutions. They said the effort to limit the exemption to houses of worship reflected a broader push by secular forces to redefine religious freedom to exclude public expressions of faith, such as Catholic health-care services.
In CHA’s letter to the Department of Health and Human Services, Sister Carol asked the federal agency to adopt a more robust definition of protected religious entities that would shield church-affiliated institutions. “An organization is associated with a church if it shares common religious bonds and convictions with the church,” read her proposed language.
This language, she said, “would align the policy under the women’s preventive-care regulation with existing federal law on conscience protection. The exemption in the final rule is narrower than any conscience clause ever enacted in federal law and reflects an unacceptable change in federal policy regarding religious beliefs.”
Adoption of this language, the letter asserted, “could help address the serious constitutional questions created by the department's current approach, in which the government essentially parses a bona fide religious organization into secular and religious components solely to impose burdens on the secular portion.”
While the leaders of a number of objecting religious institutions have highlighted the increasingly common effort to reserve constitutional protections solely for religious worship, Sister Carol now joins the chorus of high-profile Catholics opposing this trend in constitutional scholarship and judicial rulings.
“To make this distinction is to create a false dichotomy between the Catholic Church and the ministries through which the Church lives out the teachings of Jesus Christ. Catholic health-care providers are participants in the healing ministry of Jesus Christ,” read the letter.
“Our mission and our ethical standards in health care are rooted in and inseparable from the Catholic Church and its teachings about the dignity of the human person and the sanctity of human life from conception to natural death.”
The CHA letter was clearly focused on resolving its membership's problems with the mandate and did not attempt to provide solutions for individual employers that object to the federal rule on moral or religious grounds but are not formally affiliated with a church. Last week, at the bishops' meeting in Atlanta, Archbishop Lori made it clear that Catholic leaders were fighting to defend the free exercise of Catholic institutions, but also other objecting religious entities and individual employers.
“The right to religious freedom requires that all people of faith, not just organizations that are structurally bonded to a church, be exempt from ObamaCare's violations of conscience,” stated Matt Bowman, legal counsel for the Alliance Defense Fund, a public interest group, outlining concerns about Sister Carol's proposed language.
Sister Carol was not scheduling followup interviews, and the CHA letter did not explain precisely why she delayed her decision to reverse course more than four months after the bishops ruled the accommodation “unacceptable.”
Some groups opposing the mandate expressed skepticism about whether she might still seek to bolster the administration's agenda. Three years earlier, the CHA leader played a critical role in the bruising fight to pass the health bill — over the objections of the U.S. bishops — and received a pen from President Obama when he signed the bill.
But Sister Carol’s letter hinted at one possible explanation for the delay: She and top hospital administrators had spent the intervening months struggling to figure out how they could make the president’s "accommodation" work, and they failed to do so.
Meanwhile, Kathleen Sebelius, the secretary of Health and Human Services, who approved the federal rule in January, acknowledged during a hearing of the House Education and Workforce Committee this April that she did not seek a full constitutional review of the mandate.
Sebelius had initially promised an accommodation that “strikes an appropriate balance between respecting religious freedom and increasing access to important preventive services.” But under questioning from a skeptical legislator about how she squared First Amendment concerns with the controversial measure, she admitted that she had not sought a legal memo clarifying the issues at stake and said she was untutored in the “nuances of the constitutional balancing tests.”
Joan Frawley Desmond is the Register's senior editor.