Amid much Christian angst over Obama administration regulations requiring health insurance cover- age for sterilization and contraceptives - including some that cause abortion - two prominent Catholic organizations, the University of Notre Dame and the Catholic Health Association, have proposed a compromise.
It's a plan that could leave many religious organizations out in the cold.
A broad coalition has been fighting the narrow "religious exemption" provided in the federal insurance mandate issued last summer by Health and Human Services (HHS) Secretary Kathleen Sebelius. Among those are many religious organizations, including the U.S. Conference of Catholic Bishops, the National Association of Evangelicals, the Union of Orthodox Jewish Congregations and the Association of Christian Schools International.
The heart of the issue is that under the regulations, HHS has discretion to exempt churches and religious communities from the mandate but will do so only so long as they hire and serve "primarily" people of the same faith.
That language excludes conscience protection for many, if not most, religious charities, hospitals, colleges, schools and other organizations. Because the Catholic Church regards sterilization, contraception and abortion to be seriously immoral, the mandate is especially, though not exclusively, problematic for Catholic organizations.
With a strong interreligious alliance against the mandate, it is puzzling that Notre Dame and the Catholic Health Association (CHA) would propose to replace what many consider to be an unconstitutional mandate with language that, at best, is only marginally better for a select few.
But that is precisely what Notre Dame and CHA propose, threatening the rights of many religious organizations and insulting our Christian and Jewish brethren. By doing so, these prominent Catholic institutions undermine the interests of the Catholic Church and the defense of religious freedom.
Their recommendation, as outlined in comments each submitted to HHS, is to replace the narrow religious exemption with language derived from Internal Revenue Service Code Section 414(e), which exempts church-controlled and -associated pension plans from provisions of the Employee Retirement Income Security Act (ERISA). The 414(e) rule excludes from federal regulation any church, church-controlled entity or other organization that "shares common religious bonds and convictions with the church."
That might sound good, but the federal courts have concluded that "common religious bonds" means far more than agreement on principles of faith. In a 2001 precedent-setting case, the U.S. Court of Appeals for the 4th Circuit ruled that the Baptist Healthcare System did not qualify for a 414(e) exemption despite its clear religious mission. The court identified three key factors in determining whether an organization shares "common bonds and convictions with a church": 1) whether the religious institution plays any official role in the governance of the organization; 2) whether the organization receives assistance from the religious institution; and 3) whether a denominational requirement exists for any employee or patient/customer of the organization.
The third requirement is strikingly similar to the current HHS regulation, which exempts organizations from the health insurance mandate only if they hire and serve primarily people of the same faith. And the first two requirements fail to exempt many, if not most, legally independent charities and institutions.
That's a policy that Paul R. Corts, president of the Council for Christian Colleges and Universities, simply cannot accept. Many of his member colleges are nondenominational and fail to qualify for a 414(e) exemption.
"They are religious not because they are associated with a church or denomination, but rather because of their legitimate religious beliefs and practices that are openly held out to the public as such - the critical legal characteristics of a religious entity - and yet, would not be recognized as such," Mr. Corts said Monday in a statement to the Cardinal Newman Society.
Surprisingly, it is even uncertain whether Notre Dame and CHA's hospitals could withstand court scrutiny if they claimed a 414(e) exemption. The university and most Catholic hospitals have clear ties to Catholic religious orders, but they serve students and patients of any faith and have few if any religious criteria for employees. Notre Dame spokesman Dennis Brown told the Cardinal Newman Society that the university had not claimed the 414(e) exemption from ERISA and so could not know for certain whether it qualifies.
Why would CHA and Notre Dame propose a compromise that fails to protect many Catholic and other religious organizations? Perhaps they are simply working to protect their institutions. But the practical effect of their proposed compromise would be to slam the door on most religious organizations while providing political cover to the Obama administration.
Neither institution is a stranger to controversy when it comes to President Obama and his support for abortion rights. Notre Dame ignored the public pleas of 83 bishops when it honored the president at its commencement ceremony in 2009, and CHA's president, Sister Carol Keehan, was a key supporter of the Obama health care reform law while the Catholic bishops opposed it because of abortion concerns.
The answer to the problem of the HHS mandate is repeal or, at the very least, a broad and generous expansion of conscience protections for all Americans.
Patrick J. Reilly is president of the Cardinal Newman Society (cardinalnewmansociety.org).
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