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.
Most recently, the U.S. Conference of Catholic Bishops welcomed a strong conscience provision inserted in a House subcommittee appropriations bill, but the conference was less enthusiastic about another new proposal designed to “repeal” financial penalties that could be imposed on religious employers who fail to comply with the contraception mandate.
The ongoing deliberations underscore the difficulty of securing legislation that will meet the needs of institutions and individuals who object to the federal contraception mandate on religious or moral grounds.
Rep. Denny Rehberg, R-Mont., chairman of the House Appropriations Subcommittee on Labor, Health & Human Services and Education, introduced the beefed-up conscience language in an appropriations bill for 2013 that faces a full committee and full House vote and passage in the Senate, where the Blunt Amendment, a similar conscience-protection measure, was turned back in a close vote in March.
Richard Doerflinger, the chief lobbyist on life issues for the bishops’ conference, told the Register that the conference has “been working to find a way to get conscience protection enacted in law this year to counter the contraception mandate. A breakthrough occurred July 18, when the Respect for Rights of Conscience Act was inserted into the appropriation bill for the Department of Health and Human Services for this year.”
The HHS appropriations bill provides annual funding for the federal agency.
The House Labor/HHS Subcommittee “took a first, urgently needed step toward upholding rights of conscience and religious freedom in our health-care system” by including two key provisions in its appropriations bill for Fiscal Year 2013, said Cardinal Daniel DiNardo of Galveston-Houston, chairman of the USCCB Committee on Pro-Life Activities, in a July 18 statement.
“I think we have an excellent chance of keeping the conscience language in the House bill. The real challenge will be for the Senate to accept it,” Doerflinger said. “But the Senate cannot simply filibuster the appropriations bill if they want HHS funded for the upcoming year. One way or the other, there will be a vote.”
That prospect seemed better than the possibility that the Senate would take up the House’s latest bill to repeal Obamacare altogether. That measure passed July 11 244-185, with five Democrats joining with the Republican majority.
Another bill, introduced by Reps. Jim Sensenbrenner, R-Wis., and Diane Black, R-Tenn., the proposed Religious Freedom Tax Repeal Act, is designed to repeal “taxes” imposed on religious institutions that refuse to comply with the HHS contraception mandate.
“We have been studying it and find that it may not help our institutions as much as we thought. The Sensenbrenner bill leaves the mandate in place, but rescinds tax penalties for non-compliance,” Doerflinger said.
“But the Obama administration now says the way it will enforce this mandate with respect to religious employers is that they will not penalize them for non-compliance. When they try to put out a Catholic health plan, the government will have the insurance company or a third party insert the contraception coverage over the religious institutions’ objections,” he explained.
The mandate, authorized under the Patient Protection and Affordable Care Act, requires private employers to provide co-pay-free contraception, sterilization and abortion drugs. On Jan. 20, Kathleen Sebelius, secretary of 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.
The Sensenbrenner  bill is not crafted with the intent of rescinding the mandate and will likely stir debate about whether its limited goal is worthy of support or far too modest.
But the First Amendment crusade has had no discernible impact on Obama’s resolve to weather the controversy. In a July 9 TV 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 at a press conference July 10 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.
Gerard Bradley, a constitutional scholar at the University of Notre Dame, after reviewing the bill’s language, 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 said.
“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.
“Representative 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-service 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 the 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 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. 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 sought to tamp down concern about the mandate’s coercive power against objecting religious groups by proposing an “accommodation” that purportedly 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.