CHA to HHS: Drop definition of 'religious employer.' Seriously.

Today the Catholic Health Association released its comment (.pdf) on the Department of Health and Human Services proposal to accommodate religious employers' objections to the contraception mandate. From the beginning, CHA has objected to the structure of the mandate's exemption, which defines a religious employer as one that "primarily" serves and hires co-religionists, and whose purpose is the inculcation of its values. Still, when the Obama administration announced its intent to shift the responsibility of providing contraception coverage from religious employers to insurance companies, CHA praised the plan. Now, after studying the "advance notice of proposed rulemaking" (ANPRM), CHA says its initial concerns are "not relieved":

We continue to believe that it is imperative for the Administration to abandon the narrow definition of religious employer and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church.

Rather than stick with a narrow definition of religious employer without precedent in federal law, CHA recommends using Section 414 (e) of the U.S. Code to develop a new one. "Under those principles," the CHA argues, "an organization would be covered by the exemption if it 'shares common religious bonds and convictions with a church.'" CHA's letter includes draft language that would bring the definition in line with established law. What's more, as the CHA points out, changing the definition along those lines "could help address the serious constitutional questions created by the Departments current approach, in which the government essentially parses a bona fide religious organization into secular and religious components solely to impose burdens on the secular portion." HHS has never indicated how it planned to adjudicate employers' claims to a religious exemption. It's hard to imagine any method that wouldn't be a bureaucratic nightmare. Ditch the definition of religious employer and we'll never have to find out.Back to the CHA:

If the government continues to pursue the policy that all employees should have access to contraceptive services, then it should find a way to provide and pay for these services directly without requiring any direct or indirect involvement of religious employers, as broadly defined.

According to the ANPRM, the administration's goals include providing contraception coverage without cost sharing to employees of nonexempt employers with religious objections "in the simplest way possible." Have a look at the ANPRM. Anything about it strike you as simple? The argument could be made that there's nothing terribly complex about having insurers independently offer free contraception coverage to enrollees of nonexempt employers, but what about self-insured institutions? Most of the theories floated in the ANPRM are mind-boggling. What could be simpler than having the government offer contraception coverage to women whose employers have religious objections to providing it? And, as CHA notes, there's precedent for federally funded access to contraception in Medicaid family-planning waivers and in Title X. The ANPRM itself suggests providing contraception coverage through a multi-state policy offered on state insurance exchanges, scheduled to go live in 2014, in compliance with the Affordable Care Act.Last month, after Cardinal Donald Wuerl promised that "the problem goes away if that definition [of religious employer] is changed," I suggested that the Obama administration ask itself three questions: Is that definition worth the trouble it created? How does it serve the administration's policy goals? And is it the only way to achieve those goals? The Catholic Health Association believes the answer to the last question is no. Indeed, if the administration follows CHA's lead, then even more women would be covered -- because, under the proposed accommodation, women who work for fully exempt religious employers would not be eligible for free contraception.In four days, the comment period for the ANPRM ends. The administration would be wise to heed CHA's advice -- and to do so quickly. Backtracking, of course, has never been the most popular of political maneuvers. But, in this case, it might be the smartest. If HHS deep-sixes the disputed definition, what happens to the lawsuits? What happens to the Fortnight for Freedom? Does the president really want to answer questions about this during the debates? Allowing this controversy to simmer much longer could end up costing him key votes -- and health-care reform itself.

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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