WASHINGTON —When talks between the White House and the U.S. bishops stalled this spring, Church leaders focused on an array of legal and legislative remedies designed to repeal a coercive federal contraception mandate that forced Catholic institutions to violate moral doctrine.
Now, the U.S. Conference of Catholic Bishops will be evaluating a new proposal that is designed to "repeal" financial penalties that could be imposed on religious employers who fail to comply with the contraception mandate, but is not crafted with the intent of rescinding the mandate itself. Authored by two Republican lawmakers, Reps. Jim Sensenbrenner, R-Wis., and Diane Black, R-Tenn., the proposed Religious Freedom Tax Repeal Act is likely to stir debate about whether its limited goal is worthy of support, or far too modest.
The contraception mandate requires private employers to provide co-pay-free contraception, sterilization and abortion drugs, and is authorized under the Patient Protection and Affordable Care Act. On Jan. 20, Kathleen Sebelius, secretary for the U.S. Department of Health and Human Services, approved the mandate, igniting a campaign by the bishops and other religious leaders to overturn the threat to their religious freedom.
But the First Amendment crusade has had no discernible impact on President Obama's resolve to weather the controversy. In a July 9 televised interview in New Orleans, he signaled his resistance to any policy change.
The president asserted that "big Catholic hospitals or universities who employ a lot of non-Catholics and who receive a lot of federal money, that for them to be in a position to say to a woman who works there you can't get that from your insurance company even though the institution isn't paying for it, that that crosses the line where that woman, she suddenly is gonna have to bear the burden and the cost of that. And that's not fair."
Sensenbrenner's proposed bill would “exempt employers from any excise tax and certain suits and penalties in the case of a failure of a group health plan to provide coverage to which an employer objects on the basis of religious belief or moral conviction.”
The legislation “does not eliminate any of the current preventive services included in the Essential Health Benefits Package,” read a statement released by Sensenbrenner’s and Black’s offices. Instead, the bill is designed to prohibit “the federal government from enforcing the penalties of non-compliance with the HHS mandate under ERISA [Employer Retirement Income Security Act], the PHSA [Public Health Service Act] and the IRC [Internal Revenue Code] for not complying based on religious beliefs and moral convictions.”
The two Republican lawmakers, both Protestants concerned with establishing a united front against an unprecedented threat to the First Amendment, unveiled their bill today at a press conference attended by a number of leading GOP House members, including Rep. Jeff Fortenberry, R-Neb., who introduced, in 2011, the Respect for Rights of Conscience Act, now stalled in Congress.
“With the HHS mandate, the administration has set up an impossible choice for many religious-affiliated institutions: Either violate the law and pay a tax, or violate your conscience. This means some of the most respected parochial schools, hospitals, soup kitchens and universities across our country will have to choose between violating their faith to keep their doors open or paying a potentially devastating tax,” said Black in a statement released today.
The U.S. Conference of Catholic Bishops had only just received the bill and could not comment on it at press time. The Becket Fund for Religious Liberty also said it would study its language before making a statement. The Becket Fund, a public interest group, represents the Eternal Word Television Network in its legal challenge to the HHS mandate; the Register is a service of EWTN.
Gerard Bradley, a constitutional scholar at the University of Notre Dame, did have time to review the bill's language and expressed concern about the narrow scope of the legislation, however well-intentioned.
“The Religious Freedom Tax Repeal Act would protect not only religious employers (like Notre Dame) from having to pay ruinous penalties and taxes for witnessing to the truth. It would protect employers in industry and commerce who would stand by the truth as well,” acknowledged Bradley.
”Nonetheless, I think that this bill is a step which it would be better not to take,” he added.
“The mandate itself remains intact as legally binding upon religious and commercial employers alike, notwithstanding their conscientious objections. To achieve its aims, this ‘repeal’ act would have to be amended each time the administration promulgated some new, additional sanction for non-compliance.”
Bradley argued that “passing this law or any one like it would inevitably relieve the political pressure upon Congress to do the right thing, which is to rescind the HHS mandate altogether. And that pressure needs to be applied hard — and relentlessly.”
But Sensenbrenner defended the “narrow” focus of his bill as the "best shot" available, at least until after the election.
“I want to keep the debate on the narrow issue of taxes and penalties imposed for non-compliance. This is the best shot I see available right now," Sensenbrenner told the Register.
“We might be able to force the Obama administration to reach a compromise” if “the people in the pews react against the imposition of the tax,” he said.
Paul Danello, an expert on health-care law and a canon lawyer, echoed Bradley’s concern about the bill’s modest scope.
“Rep. Sensenbrenner's bill only just manages, in St. Paul's phrase, to snatch Catholic dioceses and institutions 'from the lion's jaws. Yet how surreal its highly technical language of 'taxes' and 'insurance coverage' and 'moral objection' sounds when one is dealing with the impending murder of innocents and the heavy foot of government firmly planted on the neck of the Church,” Danello said.
“It will be quite revealing to see the reaction of Obama, Pelosi and Sebelius to this very modest legislative accommodation to the First Amendment.”
As approved by Secretary Sebelius, the HHS mandate includes a narrow religious exemption that shields houses of worship, but not Catholic universities, hospitals and social agencies. They must comply with the requirement or possibly face huge financial penalties, as well as lawsuits from employees who want co-pay-free services that violate religious or moral beliefs.
A “Congressional Research Report” released in February 2012 suggested that employers and insurers who refuse to comply with the federal law could incur annual financial penalties totaling as much as $36,500 per employee.
“It seems possible that enforcement mechanisms found in Employer Retirement Income Security Act (ERISA), the Public Health Service Act (PHSA), and the Internal Revenue Code (IRC) could be applied to these non-compliant health plans,” read the congressional research memo. The report also suggested that employees could challenge non-compliance in court:
“If a group health plan or health-insurance issuer failed to provide contraceptive services pursuant to guidelines authorized by ACA, it seems possible ... that a plan participant could be able to bring a claim for that benefit.”
Many objecting religious institutions may qualify for a one-year extension before they must comply with the HHS mandate. But employee lawsuits could be filed as soon as the objecting employer's health plan begins a new year. Rep.Sensenbrenner told the Register that his bill provided no protection against employee lawsuits because he feared that measure would be blocked in the Senate. The Senate, he charged, has consistently defended the interests of trial lawyers amid repeated efforts at tort reform.
In February, the Obama administration reportedly sought to tamp down concern about the mandate’s coercive power against objecting religious groups by proposing an “accommodation” that passed on the responsibility for co-pay-free coverage from religious employers to their insurance carriers, but the majority of Catholic institutions are self-insured and thus would remain responsible for providing the coverage.
In any case, the bishops’ conference has also noted that the proposed “accommodation” is not the law, and the controversial mandate has not been formally altered since it was approved on Jan. 20.
Last month, Sister Carol Keehan, the president and CEO of the Catholic Health Association, reversed her support for the accommodation, issuing a public statement that said it was unworkable for her membership.
On June 9, Catholic Charities in the Chicago Archdiocese joined 23 Catholic plaintiffs that had already filed legal challenges to the HHS mandate in court.
Recently, on the campaign trail, President Obama has recalled the inspiring work of Catholic community groups in Chicago, where he worked as a community organizer.
Catholic Charities in Chicago employs about 2,700 full- and part-time employees, a workforce bolstered by an army of volunteers. If the government moves to impose fines on objecting religious institutions, Catholic Charities could be required to pay massive annual penalties.
Joan Frawley Desmond is the Register’s senior editor.