Every bishop in the country, representing all 180 dioceses, has publicly denounced the federal government’s contraceptive mandate, and the bishops have jointly called for it to be rescinded. But even if the Health and Human Services requirement for contraceptive coverage in health plans disappeared tomorrow, many of those same bishops would still have a problem in their own back yards.

Not only are state-level mandates in place, but many insurance companies are unwilling to offer plans without contraceptive coverage, particularly for smaller institutions. The result is that Catholic institutions that want to eliminate contraceptive coverage in their health plans have found it increasingly difficult to do so.

President Obama asserted that an equivalent of the federal mandate is already in place in 28 states. However,  the federal mandate is modeled after the strictest among them and closes off recourse previously found in federal law. The vast majority of those 28 states have religious exemptions broader than the federal mandate. Because state mandates only require insurance providers to include contraceptive coverage, conscientious objectors could previously self-insure, which placed them under the jurisdiction of federal regulations. Those guidelines — outlined in the Employee Retirement Income Security Act (ERISA), a federal law that sets minimum standards for pension and health plans — do not require contraception coverage

But self-insuring can be a risky venture, again particularly for smaller institutions, and other nuances of state laws can force Catholic groups to comply with the law before finding another option. Such is the case with the Thomas More College of Liberal Arts in Merrimack, N.H.

Catholic Identity

William Fahey, president of Thomas More College, reported that, before his tenure, the college accommodated state law. Upon his arrival, the small college investigated other legal options and discovered that self-insurance offered the best solution.

With self-insurance, the college would no longer be required to provide contraception, though costs would be somewhat higher. Since the school only has 14 full-time employees, it will be joining a block of self-insured Catholic organizations.

Unfortunately, the remedy may be temporary, given the federal mandate, which faith-based groups must comply with by Aug. 1, 2013.

“It will be no later than the end of April, even if that means we have a year. Right now, that’s all it would mean,” Fahey said.

Patrick Reilly — president of the Cardinal Newman Society, a Virginia-based group that seeks to strengthen the identity of Catholic colleges — said that it was incumbent on every Catholic organization to not allow its Catholic mission to be compromised. He also recognized the practical obstacles that exist, especially for Catholic institutions of higher learning.

The society brought to light the fact that Boston College, a Jesuit institution in Newton, Mass., provides contraception through both its employee and student health plans. Reilly said that self-insurance only avoids state regulation for employee plans, so there is no way around the contraception mandate for student plans. Though the college is not necessarily required to cover students by law, the NCAA requires schools to provide plans for athletes.

In the federal law, student plans are also required to offer contraception, but there is no penalty for non-compliance. However, Reilly is concerned about possible indirect consequences for non-compliance, such as ineligibility for federally backed financial aid or the loss of accreditation , making it difficult for alumni to pursue graduate studies at another university. Ultimately, it could cause faithful Catholic colleges to shutter, Reilly said.

“This whole question of the HHS mandate for us has been as much a question of Catholic identity as religious liberty,” he said. “The left has been clubbing the Church over the fact that there is a real lack of compliance with Catholic teaching in the Church. On the one hand, that’s no argument for violating the rights of faithfully Catholic institutions, but it does embarrass the Church.”

Reilly argued that the public is less sympathetic to Catholic conscience in part because Catholic legislators and institutions willfully violate Church teaching.

“They endanger the rest of the Church by causing the public to turn a deaf ear to our concerns,” he said. “No Catholic institution should be engaged in this willingly. Period.”

Robust ‘Culture of Death’

Fahey insisted that the problem is much deeper and “grimmer” than the current debate about the federal mandate implies. Not only are there local government problems, but insurance companies are pushing mandates as much as the state.

Some insurance companies, he charged, “have made a simple calculation. They would rather be financing birth control than financing birth.”

“Even if President Obama said, ‘Oops, mistake. We’re just going to drop this one,’ the reality on the ground is that we have a pretty robust culture of death that is using the state but doesn’t necessarily need the state to achieve its ends,” he added.

He contended that the state should protect, rather than threaten, the conscience rights of those opposed to contraception.

“Every individual has the right not to be coerced into a plan that provides those things that violate his conscience,” he said. “This has made it clear that protection is actually needed here.”

Many of the faithful support protection for Catholic institutions as well as Catholic health insurers, Catholic employers and individual Catholics currently required to pay for policies that include coverage for morally objectionable services.

Michael O’Dea, founder and executive director of Christus Medicus Foundation in Southfield, Mich., said that, for years, his organization has advocated legislation that would protect conscience rights in the health-care arena.
The foundation has backed a federal bill — the Respect for Right of Conscience Act, H.R. 1179, introduced by Rep. Jeffrey Fortenberry, R-Neb., and Sen. Roy Blunt, R-Mo. The Senate voted against the bill March 1. O’Dea said the legislation would allow insurance purchasers and individuals to negotiate a health plan that is consistent with their moral and religious convictions.

Christus Medicus also supports a nationwide Catholic health-care plan that would allow all Catholic groups to remain in conformity with Church teaching.

O’Dea said he hopes the current debate highlights issues that have been a problem for years. “This is a gift from the Holy Spirit,” he said, “because it has awakened the sleeping giant.”

Register correspondent Christine M. Williams writes from Quincy, Massachusetts.