WASHINGTON — After an initial analysis of the finalized HHS mandate, the U.S. bishops are warning that, despite changes, the regulation still threatens the Church’s ability “to carry out the mission and ministry of Jesus Christ.”
“Although the conference has not completed its analysis of the final rule, some basic elements of the final rule have already come into focus,” said Cardinal Timothy Dolan of New York, president of the U.S. Conference of Catholic Bishops.
In a July 3 statement, he explained that, so far, the conference “has not discovered any new change that eliminates the need to continue defending our rights in Congress and the courts.”
The statement came in response to the release of the final rules regulating the federal HHS mandate, which requires employers to offer health-insurance plans that cover contraception, sterilization and some drugs that can cause early abortions.
Issued under the Affordable Care Act, the mandate has become the subject of lawsuits from more than 200 plaintiffs, who claim that it forces them to violate their deeply held religious convictions.
Amid protests around the nation, the Obama administration has engaged in a multistep process to modify the mandate in order to allow for religious freedom. The release of the final rule on June 28 completed that process.
The final rule allows some religious employers to have a full exemption from the mandate. To qualify, they must meet criteria laid out in February, which align with Internal Revenue Code, Section 6033(a)(3)(A)(i) or (iii), which “refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”
The administration has stated that this will cover primarily “churches, other houses of worship and their affiliated organizations.”
Faith-based groups that are not affiliated with a specific house of worship, such as many religious hospitals, schools and charities, are not covered by the exemption. To address these groups, the administration is offering an “accommodation” instead.
The finalized accommodation will require insurance issuers to “provide payments for contraceptive services” directly to women working for religious employers who object to providing them. If a religious employer is self-insured, a third-party administrator will act in the place of an insurer to arrange the provision of employees' contraceptives.
Earlier proposals for the accommodation had suggested that the objectionable services would be covered under a separate insurance plan. The change to direct payments ensures that insurance providers will bear the burden for funding the contraceptives.
Cardinal Dolan observed that this change “seems intended to strengthen the claim that objectionable items will not ultimately be paid for by the employer's premium dollars,” but said that it remains “unclear whether the proposal succeeds in identifying a source of funds that is genuinely separate from the objecting employer, and if so, whether it is workable to draw from that separate source.”
The finalized mandate requires that the insurance issuer “must ensure that it does not use any premiums” from objecting organizations to fund the contraception and related products. The Obama administration has maintained that such products are “cost-neutral” and can be paid for by insurance companies with no reimbursement because of the decreased pregnancy and birth costs and the other “health benefits” that contraception brings.
However, in a 2012 nationwide survey, pharmacy directors rejected the notion that contraceptives could be issued at no cost to insurance companies.
Another major concern raised by Cardinal Dolan is the administration’s attempt to create different categories of religious freedom, distinguishing among those employers that receive a full exemption, those that receive only an accommodation and those that are running for-profit businesses and receive no protection at all.
The administration has claimed that religious freedom does not extend to decisions made about the governance of for-profit companies. However, Cardinal Dolan explained that the bishops “are concerned as pastors with the freedom of the Church as a whole – not just for the full range of its institutional forms, but also for the faithful in their daily lives – to carry out the mission and ministry of Jesus Christ.”
Another possible area of concern is the unwilling facilitation of contraception under the accommodation, as the “objectionable items will still be paid for by virtue of the fact that an employee belongs to the Catholic employer's plan,” he said.
Out of three possibilities proposed for self-insured groups, the cardinal added, the final mandate utilizes the one that the bishops had identified as “the most objectionable,” as it “treats the employer's very act of objecting to coverage of sterilization, contraception and abortifacients as the legal authorization for a third-party administrator to secure the objectionable coverage.”
Noting that many of the bishops’ original critiques remain unaddressed in the final mandate, Cardinal Dolan affirmed that the U.S. bishops will “continue to examine” the changes in the 110-page document and will have more to say on the mandate after determining whether it will undermine “the effective proclamation” of Church teaching by religious groups.