PHILADELPHIA — A growing number of Catholic plaintiffs who run for-profit companies have filed legal challenges to the federal contraception mandate, which took effect Aug. 1.
Whenever their company’s next health plan kicks in, non-exempt lay business owners must prove that their workers have access to co-pay-free contraception, sterilization and abortion drugs, or they’ll incur heavy fines.
Enter the National Catholic Bioethics Center’s newly published “Options for Non-Exempt Employers Under the PPACA [Patient Protection and Affordable Care Act].” The Pennsylvania-based research center routinely provides high-level guidance on a host of institutional and public-policy issues for the U.S. bishops and Church-affiliated organizations.
“We have had a number of employers and employees call us on the NCBC consultation line, asking for the moral options for addressing the mandate,” reported Marie Hilliard, director for bioethics and public policy at the center. “In response, we believed it was important to set out this limited analysis for non-faith-based employers.”
The NCBC’s website has posted authoritative guidelines for lay Catholic business owners who need to make some tough calls.
In a concise, three-page document, the center’s multidisciplinary team of ethicists, led by moral theologian John Haas, summarizes the moral options available for employers and identifies the morally licit choices. As stated in the document, this analysis does not apply to “non-exempt religious employers whose obligations are governed by canon law, such as Catholic charities and Catholic hospitals.”
The guidelines emphatically reject the option of embracing the contraception mandate as a morally illicit choice. Then readers are walked through two other alternatives: “Provide morally non-objectionable coverage” or “drop all coverage.”
The authors also address a forth option of “last resort,” defined as “temporary compliance with the mandate, coupled with active opposition by all reasonable and legal means available.”
Their judgment? “Dropping all coverage appears to be the most morally sound approach.”
That said, the authors acknowledge that this choice requires a further review of possible financial penalties and stewardship concerns.
“[B]eginning in January 2014, an employer with more than 50 full-time equivalent employees could incur a penalty of approximately $2,000 per employee per year beyond the first 30 full-time employees not offered a health plan, as well as incur the potential legal actions taken by employees and the federal government.”
Business owners must also weigh how a withdrawal of coverage will likely affect their employees.
“The principles of stewardship and justice require employers to care for their employees; by virtue of the way in which health insurance is generally provided in the United States, this care typically includes health-insurance coverage,” the guidelines note.
“A sudden change in this approach could leave many employees and their families uninsured or underinsured, with little time to adjust and find affordable, quality alternatives.”
Meanwhile, employers who seek to offer plans that exclude morally objectionable services will soon face “exorbitant penalties of $100 per day per employee, as well as the potential legal actions taken by employees and by the federal government.”
Employers could refuse to pay these fines “as a form of legitimate civil disobedience against the unjust governmental mandate,” but that decision comes with “hefty legal risks that could equally threaten the livelihoods of all involved.”

Types of Cooperation
So where does that leave a conscientious Catholic employer? The document’s authors acknowledge that some business owners will have to reconsider that “last resort.”
“The ethicists of the National Catholic Bioethics Center believe that temporary compliance with the mandate, coupled with active opposition by all reasonable and legal means available, is a morally tolerable option only as a last resort, provided that this compliance ends once the insurance exchanges are available to employees in 2014,” the guidelines state.
Active opposition could include filing a legal challenge. A Colorado federal court recently approved a temporary injunction in a legal challenge to the contraception mandate brought by Hercules Industries, a business owned by a Catholic family.
“Temporary compliance under active protest avoids the concern of abandoning employees before the exchanges are set up without permanently submitting to the unjust mandate,” the guidelines state.
“Given the lack of just alternatives, it could constitute licit mediate material cooperation in an immoral action that would take place by virtue of the coerced insurance coverage.”
There’s a clear divide between embracing the mandate and choosing to incorporate it as a temporary “last resort.”
The judgment underscores a “basic distinction … between formal cooperation, in which ‘one does … intend the sin whose external commission one is aiding,’ and material cooperation, in which ‘one … does not intend the sin whose external commission one is aiding.’”
Thus, “[w]hile both types of cooperation are sinful in principle, certain forms of material cooperation may be licit under temporary extenuating circumstances, so long as the cooperator manifests resolute opposition to the evil and takes all reasonable action to limit and ultimately eliminate that cooperation.”
While Catholic business owners will likely seek additional guidance before making their choices, if only for the short term, John Hunt, executive director of Legatus, an organization composed of Catholic business leaders, welcomed the document as an essential guide for his members.
Legatus includes about 2,100 Catholic CEOs, but Hunt suggested that many thousands of Catholic business owners are eager for expert counsel as they move into uncharted territory. Indeed, since the bishops first expressed alarm regarding the mandate, said Hunt, some Legatus members have discovered that their own employee health plans included illicit services.
“A substantial minority of our members have unwittingly provided those services in their policies. Therefore, they would not have standing in a court of law. How can you oppose the mandate when you have been offering these services?”
The religious-freedom battle has already led Church leaders like Cardinal Timothy Dolan of New York, the president of the U.S. Conference of Catholic Bishops, to acknowledge past failures to uphold teaching on contraception. Now, lay business leaders face a similar period of moral reflection and correction.
Msgr. Stuart Swetland, the Flynn Professor of Christian Ethics at Mount St. Mary’s University in Maryland, predicted that the debate over the federal law will force Catholic business owners to grapple with the countercultural demands of their faith.
“We still have time to change this unjust law: legislatively, executively and juridically. Business people should be prudently involved in using the power of their vote … because we still have a chance to change this law,” said Msgr. Swetland.
He suggested that the defense of conscience provides an important counterweight to aggressive secular forces that seek to sideline religious witness and undermine moral absolutes that protect human dignity.
“This is a time when Catholics have a particular role to play in American history: to call the nation back to its true self,” said Msgr. Swetland.
“The Declaration of Independence states that there are ‘self-evident truths.’ But, today, we are seeing the consequences of the ‘tyranny of moral relativism.’”

Morality in Business
The guidelines underscore the responsibility of all believers to “resist unjust laws,” citing a passage from Pope John Paul II’s encyclical Evangelium Vitae (The Gospel of Life): “There is no obligation in conscience to obey such laws; instead, there is a grave and clear obligation to oppose them by conscientious objection.”
Recently, the Chick-fil-A controversy has broadened the religious-freedom debate fueled by the contraception mandate, highlighting the conscience rights of business owners, as well as the free exercise of religious institutions.
Hercules Industries, the plaintiff that won a temporary injunction against the mandate, has rejected the Obama administration’s assertion that religious values do not belong in the workplace.
Hercules’ vice president, Andy Newland, told a radio talk-show host: “We realized we had a choice nobody should really have to face: That’s the choice to do business according to our faith, which we think is really important, or pay onerous crippling fines. And nobody, we believe, should be forced to make that decision.”
Archbishop William Lori of Baltimore, the chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, has strongly defended the conscience rights of lay business owners.
“At a time when people recognize that the United States’ financial crisis was caused in part by corporations that operated without regard to moral values, does it really help the country to say that corporations must operate without deeply held beliefs and values?” the archbishop asked in an Aug. 2 Washington Post op-ed.
“If an employer’s dealings with its employees and customers may not follow a Christian ethic,” he added, “what ethic, if any, must it operate by?”
Matt Bowman, legal counsel for Alliance Defending Freedom, the public interest group that represented Hercules Industries, told the Register that additional business owners have made inquiries about filing legal challenges.
Bowman also speculated that the Obama administration would seek to delay rulings until after the election. For now, he welcomes the guidelines provided by the National Catholic Bioethics Center because they help bolster his case.
“The guidelines illustrate the point that the government is forcing people of faith to choose between abandoning their faith and paying heavy government fines.”
Paul Danello, a veteran health-care lawyer and canon lawyer, who has served on the board of the National Catholic Bioethics Center, applauds the publication of the guidelines.
“The NCBC’s guidelines, while doubtlessly representing a ‘hard saying’ to many, including some Catholics, represent a superlative service in faith and truth to the Church in their unequivocal clarity and irreproachable moral theology.”
“The NCBC,” said Danello, “should be commended for its integrity and courage in this dangerous, difficult and highly politicized area.”