WASHINGTON — Kathleen Sebelius, the secretary of the Department of Health and Human Services, confirmed today that church-affiliated hospitals, agencies and universities will be required to provide contraception and sterilization in the health insurance they provide employees.
However, nonprofit religious institutions will receive an additional year to accommodate this controversial regulation covered under the new health bill, with an extended deadline of August 2013.
In a blow to the U.S. bishops and Catholic institutions that had lobbied for a broader exemption for church-affiliated organizations, the HHS secretary released a statement Jan. 20 approving the final rule for mandated preventive services for women. Houses of worship are exempted from the rule.
“I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services,” Sebelius said. “The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health-care providers.”
The secretary’s judgment was broadly contested by a range of Catholic leaders and religious-freedom advocates.
“In effect, the president is saying we have a year to figure out how to violate our consciences,” said Cardinal-designate Timothy Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops in a statement.
The cardinal-designate continued, “To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable. It is as much an attack on access to health care as on religious freedom. Historically this represents a challenge and a compromise of our religious liberty.”
Thomas Farr, director of the Religious Freedom Project at the Berkley Center for Religion, Peace and World Affairs, also challenged the position of the HHS secretary.
“What we are seeing here is precisely what the First Amendment was intended to prohibit: state action targeted against the religious consciences of particular religious communities, and intended to attack their conceptions of justice, equality and the common good. It is tyranny, pure and simple. The stakes go beyond the questions of contraception and abortion to the very meaning of American democracy,” he added.
Richard Garnett, a leading constitutional scholar at the University of Notre Dame, characterized the HHS ruling as “cynical,” “regrettable” and “insulting to many faith-based organizations and institutions that supported the new health-care law.”
“Combined with the extreme position the administration took before the Supreme Court in the recent Hosanna-Tabor case — a position that all nine justices rejected — this decision reveals the administration’s troubling inability to appreciate the importance of our ‘first freedom’ and a disappointing disregard for the religious consciences of individuals and for the integrity of religious institutions’ social-welfare and educational work,” said Garnett.
Bishop William Lori of Bridgeport, Conn., chairman of the USCCB Ad Hoc Committee on Religious liberty, said the conference had received “very little notice” before the final rule was issued. “There was a notification this morning and the rule came out around noon,” said Bishop Lori.
He said it was too early to confirm how the U.S. bishops and church-affiliated institutions might respond.
“I don’t think anything is off the table. We will look at our options, from public statements to other kinds of redress in our legal system,” he said, noting that the extended deadline provided valuable time for deliberations.
“One of the first things to do is to work together with all our Catholic institutions because no one got a pass — not our dioceses, health care institutions or universities. We want to work together as a Church, and continue building a coalition with as many ecumenical partners as we can.”
The USCCB and the Catholic Health Association (CHA), a trade organization, were early advocates of the Obama administration’s effort to expand coverage to uninsured Americans. The bishops’ conference withdrew its support for the final bill, amid concerns about abortion services and funding and conscience rights for health-care providers.
Sister Carol Keehan, CHA’s president and CEO, insisted that the administration could be trusted to protect conscience rights. However, the CHA has sought a more robust exemption for the HHS contraception mandate, and a statement today expressed disappointment with the final rule.
Additional Year to Comply
Sebelius’ statement issued today provided a recap of the mounting controversy over the agency’s interim final rule, deemed unacceptable by Catholic institutions because it would require their private health-insurance plans to provide contraception, including abortifacients and surgical sterilizations in violation of Catholic teaching
“In August 2011, the Department of Health and Human Services issued an interim final rule that will require most health-insurance plans to cover preventive services for women, including recommended contraceptive services without charging a co-pay, co-insurance or a deductible,” Sebelius said.
“Today the department is announcing that the final rule on preventive health services will ensure that women with health-insurance coverage will have access to the full range of the Institute of Medicine’s recommended preventive services, including all FDA-approved forms of contraception.”
The statement defended the final rule as scientifically sound and “consistent with the laws in a majority of states that already require contraception coverage in health plans and includes the exemption in the interim final rule allowing certain religious organizations not to provide contraception coverage.”
Kick the Can
The Becket Fund for Religious Liberty has challenged the constitutionality of the contraception mandate in court, filing two lawsuits on behalf of Belmont Abbey College in North Carolina and Colorado Christian University.
“This is a shameless attempt to kick the can down the road in an election year,” said Hannah Smith, senior legal counsel for the Becket Fund in a statement released today. “Religious colleges, universities and hospitals will never pay for abortion drugs in violation of their religious beliefs — this year or any other year.”
“The administration has seen the writing on the wall. They know that this mandate cannot survive constitutional scrutiny any more than their ‘extreme’ position in Hosanna-Tabor did. So the administration is trying to delay the inevitable judgment day,” added Smith.
Patrick Reilly, president of the Cardinal Newman Society, commented, “It is the greatest irony that, by worshipping the cult of ‘choice,’ the Obama administration has determined that religious organizations lack the freedom to act in fidelity to their beliefs. The White House has sold the First Amendment for a few pennies of political support from the ACLU and the abortion lobby.”
Since the interim final rule was issued in August 2011, Church leaders have campaigned to rescind the inclusion of contraception and sterilization in the array of “preventive services” for women covered under the new health bill. Catholics throughout the country were asked to send comments to HHS, and representatives from a variety of church-affiliated organizations met with the administration or sent letters to advance their position.
John Garvey, president of the Catholic University of America and a consultant to the USCCB Committee on Religious Liberty, said he had previously discussed the church’s concerns with administration officials and received a call from the White House earlier today about the impending announcement. He expressed dismay at the final rule, and said it revealed “a distressing lack of concern for matters of religious conscience or principal,” reflective of a series of actions taken by the executive branch over the past year.
Father Larry Snyder, president of Catholic Charities USA, expressed disappointment that the religious exemption had not been broadened to shield social agencies as well as rectories.
“Catholic Charities agencies are first and foremost Catholic institutions — a manifestation of the Gospel call for charity and justice for all people. As such, remaining faithful to Catholic teaching is not a matter of choice; rather, it is essential to our identity. With the existing restrictive definition in this mandate, the ministry of Jesus Christ himself would not be considered a religious entity.”
The controversy was addressed in a letter this fall by Cardinal-designate Dolan. He said that religious liberty was under threat by a variety of actions at the federal and state level. Last week, during the U.S. bishops’ ad limina visit in Rome, Pope Benedict XVI made a reference to the developing situation: “Many of you have pointed out that concerted efforts have been made to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices. Others have spoken to me of a worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience.”
Joan Frawley Desmond is the Register’s senior editor.