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Bishops to Obama: Rescind Your Unjust Mandate

‘Accommodation’ Prompts Continued Opposition

BY Joan Frawley Desmond

Register Senior Editor

February 26-March 10, 2012 Issue | Posted 2/20/12 at 1:01 PM

 

WASHINGTON — Hundreds of Catholic bishops and academics, scores of religious leaders across the denominational spectrum, legal firms and a dozen state attorneys general are involved in a showdown that promises to make President Obama’s election campaign anything but smooth sailing.

Opponents of the so-called “contraceptive mandate” under the Patient Protection and Affordable Care Act are not backing down after Obama announced an “accommodation” Feb. 10 intended to assuage fears of religious-freedom violations.

On Feb. 16, Don Clemmer, a spokesman for the U.S. Conference of Catholic Bishops, told the Register, “There are no grounds to the rumors that the bishops have decided against legal action. The bishops are exploring every option for challenging this mandate.”

Hours after Obama’s announcement, the bishops’ conference issued a firm response to his proposed “accommodation,” stating that rescission of the mandate is the “only complete solution.” The president “has decided to retain HHS’ nationwide mandate of insurance coverage of sterilization and contraception, including some abortifacients,” the statement noted. “We cannot fail to reiterate this.”

“We note that today’s proposal continues to involve needless government intrusion in the internal governance of religious institutions and to threaten government coercion of religious people and groups to violate their most deeply held convictions. In a nation dedicated to religious liberty as its first and founding principle, we should not be limited to negotiating within these parameters. The only complete solution to this religious-liberty problem is for HHS to rescind the mandate of these objectionable services,” said the USCCB statement.

“We will, therefore, continue — with no less vigor, no less sense of urgency — our efforts to correct this problem through the other two branches of government. For example, we renew our call on Congress to pass, and the administration to sign, the Respect for Rights of Conscience Act. And we renew our call to the Catholic faithful, and to all our fellow Americans, to join together in this effort to protect religious liberty and freedom of conscience for all.”

Early the next week, on Feb. 13, the bishops’ conference issued a six-point explanation of why it is rejecting Obama’s olive branch.

“The rule that created the uproar has not changed at all, but was finalized as is,” the new statement read. “Friday evening, after a day of touting meaningful changes in the mandate, HHS issued a regulation finalizing the rule, first issued in August 2011, ‘without change.’ So religious employers dedicated to serving people of other faiths are still not exempt as ‘religious employers.’ Indeed, the rule describes them as ‘non-exempt.’”


Questions Remain

Marking Obama’s Feb. 10 announcement, the administration noted several changes in its modified rule. “Religious organizations will not be required to subsidize the cost of contraception,” the White House asserted.

Further, “contraception coverage will be offered to women by their employers’ insurance companies directly, with no role for religious employers who oppose contraception.” 

“Insurance companies will be required to provide contraception coverage to these women free of charge,” the statement continued.

But the White House statement left many details of the new plan unanswered — perhaps until after the 2012 presidential election.

The bishops, in their Feb. 13 statement, which was posted on the conference blog, noted that the rule “leaves open the possibility that even exempt ‘religious employers’ will be forced to cover sterilization.”

The USCCB statement also recognized that funds from contraceptives ultimately must come from premiums paid for by both the employer and employee. An additional concern is that the new rule does not exempt individuals who pay premiums that will help subsidize products and practices they recognize as immoral.

Michael Warsaw, the president and CEO of EWTN and publisher of the Register, expressed his dismay that the proposed modification did little to address his objections to the HHS contraception mandate. EWTN filed suit against the federal government Feb. 9, seeking to block the federal rule and challenge its constitutionality.

In a statement released Feb. 10, Warsaw stressed that it was not clear whether the proposed modification would “actually apply to EWTN or actually give any relief to the network and other similar organizations. Like EWTN, many religious institutions self-insure their health-care plans, meaning that we will still be forced to pay for these services in violation of our religious beliefs,” he concluded.

Many religious orders run or sponsor apostolates employing laypeople, and thus their insurance programs would be subject to the mandate. One such order is the Dominican Sisters of Mary, Mother of the Eucharist, whose superior, Mother Mary Assumpta Long, said in a statement, “These institutions will still have to pay the insurance company that is mandated to provide these services for free to any employee who wants these services.”

“It is insulting for President Obama and his administration to suggest the so-called compromise ‘should be net-cost neutral,’” Mother Assumpta said. “It is simply impossible to ensure that the insurance companies will not pass on those costs to the organizations and individuals who conscientiously object to their insurance policies covering abortion-inducing drugs, sterilization and artificial contraception.”

The order is based in Ann Arbor, Mich. Michigan’s attorney general, Bill Schuette, says he is filing a brief in support of the EWTN lawsuit, the Detroit Free Press reported.

Also, more than a dozen state attorneys general have signed a joint letter by Nebraska Attorney General Jon Bruning threatening legal action against the administration over the mandate.

“The administration’s new proposal still tramples on religious freedom by requiring support of activity that violates the conscience and beliefs of millions of Americans,” said Bruning, a Republican who is running for an open U.S. Senate seat from Nebraska.


False ‘Compromise’

The Becket Fund for Religious Liberty, a public interest group that is representing (pro bono) EWTN and two other plaintiffs that have filed suits challenging the constitutionality of the contraception mandate, also rejected the proposed “accommodation.”

“This is a false ‘compromise’ designed to protect the president’s re-election chances, not to protect the right of conscience,” said Hannah Smith, senior legal counsel for the Becket Fund. “Hundreds, if not thousands, of religious institutions are still left out in the cold and will be forced to violate their religious convictions.”

Judging from the White House statement, she said, some church-affiliated employers may be able to opt out of the federal rule.

But an analysis issued by the Becket Fund found that the White House “accommodation” statement does not stipulate “which religious organizations are permitted to claim the new exemption and whether it will extend to for-profit organizations, individuals or nondenominational organizations.”

The Becket Fund also pointed out that “money is fungible, and many religious organizations may still object to being forced to pay money to an insurance company which will turn around and provide contraception to its employees for free.”

Hannah Smith predicted that “the details of this supposed ‘compromise’ will likely not be announced until after the election.” Thus, the “accommodation” could provide the president with political cover without securing the First Amendment rights of religious employers.

EWTN’s Warsaw echoed that concern. He noted “that the proposed rules for non-exempted religious organizations will still not be finalized until later in the coming year. This leaves EWTN and other such organizations very uncertain about what the future may hold with regard to this mandate.” 

The White House’s statement is unlikely to alter GOP efforts on Capitol Hill, where Speaker John Boehner, R-Ohio, is spearheading an effort to develop legislation designed to repeal the contraception mandate.

Obama’s plan, touted as a concession to freedom of religion and conscience, was immediately denounced by pro-life Rep. Chris Smith, R-N.J. “The so-called new policy is the discredited old policy, dressed up to look like something else,” said Smith. “It remains a serious violation of religious freedom. Only the most naive or gullible would accept this as a change in policy.”

“The White House ‘Fact Sheet’ is riddled with doublespeak and contradiction,” Smith contended. “It states, for example, that religious employers ‘will not’ have to pay for abortion pills, sterilization and contraception, but their ‘insurance companies’ will. Who pays for the insurance policy? The religious employer.”

That harsh assessment was echoed in a statement signed by more than 300 high-profile academics from a spectrum of religious communities, including John Garvey, president of The Catholic University of America, and professors Robert George of Princeton, Mary Ann Glendon of Harvard, Michael McConnell of Stanford, Thomas Farr of Georgetown, and O. Carter Snead, Richard Garnett and Gerard Bradley of Notre Dame, who said the White House had failed to effectively address the First Amendment concerns of religious institutions.

“This so-called ‘accommodation’ changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy. … The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health-insurance contract that provides abortion-inducing drugs, contraception and sterilization,” read the statement. “This is a grave violation of religious freedom and cannot stand.” 

Joan Frawley Desmond writes from Chevy Chase, Maryland.


What Did Sister Carol Keehan Know, and When Did She Know It?

WASHINGTON — President Obama’s Feb. 10 announcement of an “accommodation” to religious groups opposed to providing contraceptives and sterilization in their health plans prompted an expression of gratitude from Sister Carol Keehan. The Daughter of Charity is president and CEO of the Catholic Health Association and was a key supporter in getting Obama’s signature health-care legislation passed in 2010.

But while Sister Carol welcomed Obama’s “compromise” on contraception coverage, the U.S. Conference of Catholic Bishops formally rejected it as essentially meaningless.

In the wake of the announcement, amid a blur of news headlines and talking heads that offered conflicting judgments, the faithful struggled to determine what, if anything, had changed regarding the administration’s policy.

And the contrasting responses from the Catholic Health Association leader and the bishops’ conference have left Catholics and the general public confused about who speaks for the Church on a matter of grave institutional concern and whether the Obama administration exploited a lack of clarity about that matter.

The dueling positions have fueled questions about the basis of Sister Carol’s endorsement: USCCB officials and health-care experts have since confirmed that the government has not issued any binding regulations that legally override the controversial contraception mandate finalized by the Department of Health and Human Services on Jan. 20.

Subsequent media coverage and interviews suggest that while the White House cleared its talking points with Sister Carol in advance of the president’s public address, the USCCB had been excluded from the administration’s deliberations.

“Obama has made clear who is part of his ideological coalition and who is not. Discussions on the structure and restructuring of the contraceptive policy were conducted between the administration and pro-choice and feminist groups. The institutions targeted by the mandate — particularly those represented by the United States Conference of Catholic Bishops — were not in the room,” stated Michael Gerson in a column published in The Washington Post.

“The administration engaged in no substantive consultation with Catholic bishops, who were only called to receive pronouncements. Interest-group liberalism is alive and well in the Obama White House,” Gerson wrote.


Special Treatment?

However, media reports suggest that Sister Carol received special treatment from the White House. A Feb. 10 New York Times story reported that the president’s “accommodation” was designed specifically to address Sister Carol’s concerns, not those of the U.S. bishops.

“The fight was for Sister Carol Keehan — head of an influential Catholic hospital group, who had supported President Obama’s health-care law — and Catholic allies of the White House seen as the religious left,” reported the Times.

Richard Doerflinger, the U.S. bishops’ chief lobbyist on life issues, confirmed that the conference had not received the relevant documents regarding the reported “accommodation” until that Friday evening and that more information arrived on “Saturday, Feb. 11, at 5:27pm.”

After the close of the Friday workday, said Doerflinger, the conference was finally able to sift through all the documents — only to conclude that nothing of substance had changed since the HHS final rule was approved last month.

That same rule had been “finalized without change,” said Doerflinger, who stressed one single point: “The only thing that has force of law is that same final rule. It’s still in place. The rest is something that might happen.”

The administration informed the USCCB that “some time in the coming months we will issue new rulemaking for organizations that are not exempt from the mandate,” Doerflinger said.

“An organization that morally objects to these services is not exempt,” said Doerflinger. “It is not able to give its employees a plan without this contraception mandate.”

In striking contrast to the USCCB’s conclusion, Sister Carol greeted the president’s “accommodation” with enthusiasm. Her support was touted by the administration and cited in media coverage of the breaking story.

By Feb. 11, the White House blog had posted statements from Sister Carol, Catholic Charities USA and Planned Parenthood supporting Obama’s “accommodation.” However, the Catholic Charities USA statement, a modified version of that organization’s original and more enthusiastic response to the president’s move, could not be described as an endorsement.

Sister Carol, however, has not modified her response to the president’s overture. From the beginning, her endorsement asserted that religious-liberty concerns had been addressed.

But she did not specify how the president’s action had met the concerns of church-affiliated institutions, including the members of her association. Did Sister Carol receive additional binding assurances, or was she simply trusting the president to make good on his promise to a faithful ally?

A review of the CHA website suggests that its CEO and president does not, in fact, have all the facts. A Feb. 13 statement assures anxious members that the organization “will review the proposed new rules for the HHS mandate.”

“CHA looks forward to reviewing the specifics of the changes in the mandated benefits. Many members have called with questions about these since they were a concern as first published. On Friday, Feb. 10, 2012, we were notified that our organizations would not have to buy or refer employees for contraception and other services. We were also told that the self-insured plans would be accommodated in this. At this time, there are many unanswered questions about specifics. We now have the challenging work of reviewing the proposed rules, examining their impact and giving input before they are finalized,” read the statement.

It added, “Because many members have asked about specifics in the rules and also the process for applying for the one-year exception, we have included links to the rules and to the guidance on the safe harbor with this email. As more is known about this, we will be getting that information out to the membership as quickly as possible.”

Safe harbor is a reference to the one-year delay in enforcement offered by the administration. It has also been referred to as the “grace period.”

But if the CHA has not established the specifics of the “accommodation,” why did Sister Carol endorse it?

It is still not clear whether the board approved Sister Carol’s statement on Feb. 10, as Sister Carol and Bishop Vann did not respond to questions regarding this point.


Who Speaks for the Church?

The confusion and possible institutional damage generated by Sister Carol’s public endorsement have led some Catholic experts in the health-care field to demand an accounting.

“On the basis of what information and what authority did she issue this endorsement? It’s embarrassing from a policy standpoint,” noted Paul Danello, an expert on civil and canon law issues in Catholic health care, who has received calls from Catholic hospitals worried about the implications of the HHS final rule.

“If the CHA board hasn’t authorized this, if she has no mandate from the USCCB, and if there are no legally binding documents, she is operating without any legal, governance or regulatory basis. That is a hell of a situation for a Roman Catholic nun that heads the Catholic Health Association to be in.”

Danello says it’s past time for Church leaders to address Sister Carol’s public statements and actions with regard to the formal Church policy on a complex and critical issue.

“It’s the right hand fighting against the left hand,” he said. “Who is speaking for the Church here? The Church needs to get its house in order.”

— Joan Frawley Desmond


Bishops vs. HHS

WASHINGTON — Bishops around the country have sharply criticized President Obama’s “accommodation” to the controversial Health and Human Services mandate that requires employers’ health-insurance plans to cover contraception and sterilization.

Most, like Cardinal Roger Mahoney, archbishop emeritus of Los Angeles, focused on religious liberty.

Cardinal Mahony addressed Obama directly when he wrote on his blog Feb. 11: “Mr. President, you are trying to resolve the wrong problem. Your HHS new federal rule governing mandated health-care services is not just about women’s services and who pays for them. Rather, the real question is what protections and guarantees are afforded Americans and our various institutions by the Constitution. Your ill-placed focus should be frightening to all Americans.”

The retired archbishop of Los Angeles said Obama’s “accommodation” “actually makes the entire matter far worse.”

Meanwhile, Cardinal Donald Wuerl of Washington stated, “What is at stake here is a question of human freedom. The authors of the Bill of Rights enshrined freedom of religion as our nation’s first and founding principle. We should not be reduced to petitioning the government for rights that the Constitution already guarantees. The only complete solution to the problem that this mandate poses for religious liberty is for Congress to pass legislation to protect our freedom. The Respect for Rights of Conscience Act is one of several bills that have been introduced for this very purpose.”

Philadelphia Archbishop Charles Chaput stated that the rule remained “insulting” and “dangerous” to believers’ rights. In a Feb. 12 Philadelphia Inquirer column, he called the HHS mandate, with its limited exemption for religious organizations, “belligerent, unnecessary and deeply offensive to the content of Catholic belief.”

“Any such mandate would make it morally compromising for us to provide health-care benefits to the staffing of our public-service ministries,” Archbishop Chaput said.

Bishop Edward Slattery of Tulsa, Okla., said he is dismayed that Obama “does not understand the root issues which are involved here.” He listed three of these issues:

First, no one wants to know why the Catholic Church opposes artificial birth control, direct sterilization and abortifacients.

Second, the government ideology labels these methods “preventive care” and considers pregnancy a disease.

Third, “who ultimately pays for this immoral coverage has remained unanswered by the president,” Bishop Slattery observed.

He also stressed that the U.S. Constitution “does not merely guarantee the freedom of religion to institutions, but to every American.”

Archbishop Wilton Gregory of Atlanta, in a statement issued shortly after the White House’s announcement, underscored the issue of self-insurance. “The … mandate seems to require contraception coverage, including abortion-inducing drugs, to be offered to women by their employers’ insurance companies. The Archdiocese of Atlanta is self-insured, as are many Catholic institutions, so this is not a real solution,” said Archbishop Gregory.

Bishop David Zubik of Pittsburgh expressed a sense of comfort that religious liberty was coming into focus. “It’s a point of major concern,” he said. “We’ve been dealing with a mandate that requires us to go against our conscience — which we can’t ever do.”

“We really do have to be guaranteed our religious liberty,” he concluded. “We’re not going to be forced to do something against our consciences.”

Archbishop Joseph Naumann of Kansas City in Kansas said the proposed “accommodation” does not call for any caution flags to be lowered, especially in light of the limited release of what the modifications really entail.

“As the current crisis has made us painfully aware, the devil is in the details,” he noted. “I have particular concerns about the impact on religious institutions that are self-insured. I also have concern about what relief this modification provides to Catholic business owners who desire to provide high-quality health insurance to their employees without paying for morally objectionable procedures and/or pharmaceuticals. The past actions and promises of the president and his administration do not inspire confidence.”

Archbishop Thomas Wenski of Miami said he finds it gratifying that most Americans across political and religious lines appreciate that the debate is really about religious freedom, not contraception. “It is about the first freedom of our Bill of Rights: the freedom of religion and respect for the rights of conscience.” He said a legislative remedy to this “overreaching and unprecedented incursion of state power into the domain of religious freedom and the rights of conscience is still necessary.”

Bishop Daniel Jenky of Peoria, Ill., told Catholic News Agency Feb. 10 that Catholic politicians contribute to attacks like this against the faith, for they “not only do not live their faith, they collaborate in the assault against their faith.”

“Determined secularists see the Catholic Church as the largest institutional block to a completely secularized society, and not for the first, and probably not for the last, time, we’re under assault,” he said. “It is always difficult to predict the future, but the intensity of hatred against Catholic Christianity in elements of our culture is just astounding.”

— Joseph Pronechen