U.S. Bishops Say Latest HHS 'Accommodation' Falls Short

Cardinal Dolan endorses conscience rights for all objecting employers and says legal challenges to the mandate will continue.

(photo: CNA)

Editor's note:  This article has been updated from its original headline, which stated "U.S. Bishops Reject the Latest HHS 'Accommodation.'" Cardinal Timothy Dolan clarified on his Facebook page on Feb. 8 that the bishops have not "rejected" the Obama administration's Feb. 1 proposal, but they will continue to work to find "acceptable solutions" that respect the "consciences of all."

WASHINGTON — The U.S. Conference of Catholic Bishops are not satisfied with the Obama administration’s Feb. 1 proposed “accommodation” to the federal contraception mandate and have affirmed the Church’s “united” effort to secure broad religious exemptions and conscience rights for all objecting employers through legal action.

In a Feb. 7 statement, Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops, said the latest proposed rulemaking failed to address the Church leaders’ long-standing objections to the federal rule, approved Jan. 20, 2012.

Cardinal Dolan’s statement also outlined the conference’s concerns about a complex proposed modification that required further study but did not appear to offer a reprieve for religious employers.

Cardinal Dolan said the conference would formally respond to the administration’s request for comments on the proposed rulemaking, but clearly signaled that the latest development would not affect the legal challenges to the mandate filed by many Church organizations.

“Thus, we welcome and will take seriously the administration’s invitation to submit our concerns through formal comments, and we will do so in the hope that an acceptable solution can be found that respects the consciences of all,” read Cardinal Dolan’s statement, released by the USCCB.

“At the same time, we will continue to stand united with brother bishops, religious institutions and individual citizens who seek redress in the courts for as long as this is necessary.”


The Latest Proposal

Cardinal Dolan’s statement came a week after the Obama administration issued its latest proposed modification to the federal contraception mandate.

On Feb. 1, Health and Human Services Secretary Kathleen Sebelius announced proposed changes to the controversial federal rule and characterized the new plan as a good-faith effort to balance both the rights of women and objecting religious employers.

“Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns,” stated Sebelius.

The proposal offered a belated response to the U.S. bishops’ formal critique of President Obama’s Feb. 10, 2012, “accommodation” to the mandate. The bishops have consistently opposed the mandate’s narrow religious exemption, which excluded Church-affiliated hospitals, universities and social agencies. But Church leaders also sought to secure conscience rights of for-profit employers who could not comply with the mandate on moral grounds.

Over the past year, various proposals have been floated by the administration, and the bishops have continued to press for a broad exemption.

For example, the administration proposed that health insurers, rather than religious nonprofits, would pay for mandated co-pay-free benefits.

But the USCCB has countered that many religious employers are self-insured. Without a broad religious exemption, the bishops feared that Church institutions would still be compelled to underwrite — directly or indirectly — “free” contraception, abortion-inducing drugs and surgical sterilization.

HHS’ Feb. 1 proposed rulemaking did not significantly expand the religious exemption. Indeed, HHS acknowledged, “This proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.”

Rather, the focus was on an “accommodation” for religious nonprofits that were not exempted, and HHS outlined a complex mechanism for addressing the religious-liberty concerns of institutions that are self-insured, as well as nonprofits that use a third party for employee health insurance.

The new HHS proposal called for religious nonprofit institutions to provide health plans without the coverage, while employees would automatically be enrolled in a stand-alone policy created solely to provide the co-pay-free services. The government said there would be no additional charge for that provision.

 A more complicated plan was unveiled for religious institutions that self-insure. HHS would direct other insurance carriers to cover the cost of co-pay-free benefits, and they would be reimbursed by the government through rebates for fees they paid to participate in state health exchanges, mandated under the Affordable Care Act.

The latest HHS proposal had already sparked immediate criticism from the Becket Fund for Religious Liberty, a public interest group that represents a number of plaintiffs challenging the HHS mandate, including EWTN. The Register is a service of EWTN.

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, said he was “extremely disappointed” with the latest HHS proposal and vowed that the legal challenges would continue.


Cardinal Dolan’s Response

Cardinal Dolan, in his Feb. 7 statement, echoed that disappointment, while continuing to pledge support for “acceptable solutions” to the impasse.

“Throughout the past year, we have been assured by the administration that we will not have to refer, pay for or negotiate for the mandated coverage,” read the cardinal’s statement.

“We remain eager for the administration to fulfill that pledge … and we will redouble our efforts to overcome obstacles or setbacks.”

Cardinal Dolan highlighted the bishops’ primary concerns, following the latest HHS proposal, and his statement offered no hint of support for the administration’s complex plan for creating a stand-alone insurance benefit.

Cardinal Dolan said that, while the new proposal was presented as a solution to the narrow religious exemption, in reality, “the administration’s proposal maintains its inaccurate distinction among religious ministries.

“It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education and Catholic charities. HHS offers what it calls an ‘accommodation,’ rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches.”

Cardinal Dolan noted additional concerns prompted by the latest plan: “It appears that the government would require all employees in our ‘accommodated’ ministries to have the illicit coverage — they may not opt out, nor even opt out for their children — under a separate policy.”

Further, “because of gaps in the proposed regulations, it is still unclear how directly these separate policies would be funded by objecting ministries and what precise role those ministries would have in arranging for these separate policies.

“Thus, there remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities.”

While offering a pointed critique of the proposal’s adherence to a narrow religious exemption, Cardinal Dolan stressed that the bishops also objected to the administration’s refusal to recognize the conscience rights of for-profit businesses.

“In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath,” read the cardinal’s statement. “We cannot now abandon them to be forced to violate their morally well-informed consciences.”


More Study Required

During a Feb. 7 interview, Archbishop William Lori of Baltimore, the chairman of the USCCB's Ad Hoc Committee for Religious Liberty, noted that that the bishops’ conference would continue to evaluate the proposed modification.

“The latest accommodation is complex, and there are many unanswered questions. While there are elements that show improvement, other issues have stayed the same, and other parts have gotten worse. It is a very complex situation that will require further study,” Archbishop Lori told the Register.

The new proposal adopts the Internal Revenue Service’s definition of a religious employer, a shift that now exempts Catholic dioceses and parish schools, but not social agencies like Catholic Charities.

Archbishop Lori repeated Cardinal Dolan’s concern about another issue that has not yet received much public scrutiny: the promotion of the mandated services for use by adolescent girls. According to HHS rules, private employers must offer co-pay-free contraception, abortion-inducing drugs and surgical sterilization, and health-care professions must promote the use of these “preventive services.”

“It is pretty clear that if one is an employee of an accommodated entity, you cannot opt out of receiving coverage for the prescribed services,” said Archbishop Lori, “and that includes your adolescent children.” The mandate “reaches into the workplace and the family.”

Meanwhile, he said, Church leaders would continue to study the complex proposal to shift responsibility for complying with the mandate from religious employers to a third-party insurer, who would direct the provision of services.

Douglas Laycock, a top constitutional scholar at the University of Virginia School of Law, confirmed that the administration’s proposal would take additional study before Church leaders and their allies could offer any clear-cut response.

“We have to learn how this new mechanism works,” said Laycock. “Is the mechanism sufficiently transparent or reliable so bishops will not think [Church-affiliated institutions] are bearing the costs?”

Laycock would not predict the outcome of legal challenges to the HHS mandate filed by religious nonprofits. But he suggested that for-profit businesses were unlikely to secure a reprieve from the courts, just as they had failed to do so in First Amendment cases dealing with same-sex “marriage.”


Unresolved Problems

Cardinal Dolan has promised to spell out the USCCB’s concerns about the new proposed rules for the mandate in more detail, but after a year of fitful negotiations, those who share the bishops’ commitment to religious liberty see little cause for optimism.

“The substance of the reservations which the bishops express reveals that the problems with the Obama administration’s earlier proposals — which the bishops justifiably criticized in very strong terms — remain almost completely intact,” noted Gerard Bradley, a professor at the University of Notre Dame Law School.

“The bishops now say that they look forward to working with the administration to resolve the serious issues remaining,” Bradley said. “But this latest proposal makes clear that the administration does not intend to meet the bishops even half way.”

Joan Frawley Desmond is the Register’s senior editor.