JUMPING THE GUN?
WASHINGTON — The Catholic Health Association signaled July 8 that it would accept the White House’s "accommodation" for religious employers that opposed the federal contraception mandate on moral grounds but were not exempt from compliance with the law.
Taking a step with unpredictable consequences for ongoing efforts to secure legal and legislative remedies to the Health and Human Services’ mandate, CHA expressed satisfaction with the outcome of its negotiations with the White House.
"HHS has now established an accommodation that will allow our ministries to continue offering health-insurance plans for their employees as they have always done," read the opening statement accompanying the trade group’s "memorandum," which explains how the final rules would work.
"We are pleased that our members now have an accommodation that will not require them to contract, provide, pay or refer for contraceptive coverage."
However, CHA’s president and CEO, Daughter of Charity Sister Carol Keehan, issued the statement before the U.S. bishops had completed their own review of the 110-page final "accommodation." Further, her decision stirred up concern that CHA’s stance would be used to attack arguments by religious plaintiffs in HHS mandate lawsuits.
The previous week, Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops, noted in a preliminary assessment that the final rule failed to resolve at least two key concerns.
"A first concern with the definition of ‘religious employer,’ and the third concern with faithful business owners and other individuals, still have not been addressed at all," stated Cardinal Dolan.
"The second area of concern — the ‘accommodation’ for religious charities, schools, hospitals and other ministries of service — appears mostly the same, except for three relatively small changes that will require more time and analysis to evaluate."
CHA’s statement suggested that the law had resolved concerns about how church-affiliated institutions could coexist with the law without cooperating in the provision of immoral services. And CHA implied that it had reached this judgment "in dialogue with the leadership of the bishops’ conference."
But the USCCB appeared to challenge that account.
"The U.S. bishops are still studying the HHS final ruling. The USCCB did not contribute to the CHA analysis or the statement itself," Sister Mary Ann Walsh, a USCCB spokeswoman, told the Register in a July 9 email message.
Significantly, the CHA statement also noted the broader political and legal issues that have transformed the church-state dispute over the HHS mandate into a full-blown culture war, with more than 60 legal challenges to the law filed across the country.
"We also recognize that this resolution has not been what some organizations, including the bishops’ conference, asked for on behalf of a wider group. Our contribution to the process has been to work for the protection of religious organizations, especially our members," read the statement.
"We recognize the broader issues will continue to be debated and litigated by others."
The statement appeared to reflect Sister Carol’s hope that CHA’s action would not be used by partisan groups or the administration’s attorneys to attack the merits of legal challenges to the HHS mandate.
Asked to explain why CHA issued its response before the U.S. bishops had completed their own review of the final rule, Sister Carol declined to comment.
It is too soon to evaluate whether CHA’s action will influence the outcome of the legal challenges, but Mark Rienzi of the Becket Fund for Religious Liberty and Matt Bowman of the Alliance Defending Freedom, two groups representing many plaintiffs in lawsuits seeking a broader religious exemption for private employers, told the Register that CHA’s announcement would likely have no impact. Douglas Laycock, an expert on religious-freedom issues at the University of Virginia’s law school, who is not representing any plaintiffs in HHS cases, agreed with their assessment.
"If some institutions find the accommodation acceptable and others do not, that is irrelevant, in terms of legal doctrine. Not all Catholics believe the same thing, and the legal issue is whether the particular Catholic institution before the court is substantially burdened," Laycock told the Register.
But he noted that CHA’s stance could have an indirect impact on court cases.
"Public opinion is influenced by it, and sometimes judges are influenced by it," said Laycock. "If a judge is inclined to think that the burden here is modest and attenuated, he may be reinforced in that view by the fact that some institutions find it acceptable."
"The Supreme Court cases are clear that this fact should not influence a judge, but judges are human, and some of them will be influenced by it, even so," he added.
CHA’s decision to adopt an independent position on a contentious policy issue was a replay of two previous actions taken by the trade group, which has often been presented in media accounts as a Catholic organization with teaching authority equivalent to the U.S. bishops.
National Public Radio’s July 10 story on CHA’s acceptance of the final rule, for example, placed CHA and the USCCB on a level playing field, describing both as "two prominent Catholic groups."
Sister Carol backed the passage of the Affordable Care Act in 2010, even after the USCCB withdrew its support because of concerns about whether the law would be used to subsidize abortions.
In 2012, she initially endorsed President Barack Obama’s Feb. 10 "accommodation" for the HHS contraception mandate, a move that provoked a damaging public split between her organization and the USCCB.
The White House and its allies quickly seized on Sister Carol’s 2012 endorsement of the accommodation to assert that the bishops’ concerns were groundless.
CHA’s July 8 statement noted two lingering objections to the accommodation that it said had been addressed in the final rule.
"CHA had two principal concerns. The first was the four-part definition of what constituted a ‘religious employer.’ That concern has been eliminated."
As CHA notes in its "overview" of the final rule, the definition of an "exempted" religious employer, one that is not required to comply with the mandate, excludes most church-affiliated institutes — a key sticking point for the bishops.
The second concern was "establishing a federal precedent that mandated our members would have to include in their health plans services they had well-established moral objections to." It provided a memorandum outlining how the rules would work and why they would be acceptable to CHA members.
The CHA overview notes that there are two separate rules for religious institutions that qualify for the accommodation and either use a third-party insurer or self-insure. The process is complex, with the objective of removing or sharply reducing the religious employer’s facilitation of immoral services.
For groups that use a third-party insurer, among other issues, "the insurer is required to segregate premium payments made by eligible organizations and to pay for contraceptive services from other funds."
But Cardinal Dolan’s preliminary assessment indicated that the U.S. bishops will likely judge that the final accommodation is inadequate, in terms of actually preventing facilitation of immoral services by religious employers.
And the U.S. bishops have fought to expand the religious exemption to cover not only church-affiliated institutions, but also for-profit businesses that oppose the provision of co-pay-free contraception, abortion-inducing drugs and sterilization in employee health plans.
The lawsuits filed by religious nonprofits are moving slowly through the courts, and religious employers were given an extended "safe harbor" deadline to January 2014 to address the issue.
But many lawsuits filed by for-profit employers have already secured preliminary injunctions to protect them from massive financial penalties until the cases are decided. Hobby Lobby, a craft-store chain, just won a temporary restraining order from the 10th Circuit Court of Appeals, which ruled that the case was likely to succeed on its merits.
CHA’s statement alluded to the legal challenges but did not express solidarity with for-profits that sought a reprieve from the courts.
Read the statement, "Our contribution to the process has been to work for the protection of religious organizations, especially our members."