Is the Government ‘Defining Religion’?

The Bishops' Case Against the Mandate

The U.S. Conference of Catholic Bishops continues to oppose the Affordable Care Act because of its contraception mandate and the Department of Health and Human Services’ refusal to extend a blanket exemption to Catholic institutions such as hospitals and universities. The USCCB is not only worried about what the law might force these institutions to do, such as pay for contraceptive coverage. It is also worried what it might say about who they are. In a statement issued last year the USCCB Administrative Committee protested: “Government has no place defining religion and religious ministry.... HHS thus creates and enforces a new distinction—alien both to our Catholic tradition and to federal law—between our houses of worship and our great ministries of service to our neighbors, namely, the poor, the homeless, the sick, the students in our schools and universities, and others in need, of any faith community or none.”

I think the USCCB’s criticism is rooted in a mistaken assumption about how our law operates. The HHS regulations don’t define religion—they define exemptions to the mandate applicable to institutions that certify themselves as religious, while balancing competing concerns in light of the purposes of the particular law they are implementing.

What is the purpose of the controversial contraception mandate? The ACA requires total coverage of many preventive health services because studies have shown that even small copayments deter access. The Institute of Medicine recommended that contraception be treated as a preventive service because women with unintended pregnancies are more likely to engage in behaviors dangerous to themselves and their unborn children. Moreover, studies show unintended pregnancies pose a higher risk of pre-term or low-birth-weight babies, increasing the likelihood of subsequent health problems. To HHS, covering contraception is a public-health issue, not merely a matter of reproductive choice.

Given the purpose of the law, different exemptions for different types of religious institutions make sense. For example, one group of “religious employers” is completely exempt from the mandate. Those employers must meet four criteria: (1) their purpose is the inculcation of religious values; (2) they primarily employ persons who share their religious faith; (3) they primarily serve persons who share that faith; and (4) they are structured as nonprofit, tax-exempt charitable corporations. Employees in such institutions receive no contraception benefit at all.

At the same time, the HHS regulations must balance the religious-liberty interests of all employers against the legitimate expectations of employees and the government’s public health goals. In organizations that have been completely exempted from the mandate—such as parishes and dioceses—employees are more likely to share, or at least accept, the moral views of their employers. Consequently, it will not seem unfair to deny access to treatments that are inconsistent with an employer’s religious views. Nor will it greatly affect the public health objectives of the law, assuming this class of beneficiaries is less likely to use contraception even if it were freely available.

But many Catholic institutions, such as hospitals and colleges, employ and serve non-Catholics. Initially, these institutions did not qualify for any exemption. But in response to criticism from the bishops and others, HHS created a second category of exemption, “to accommodate non-exempt, nonprofit religious organizations.”

According to HHS, the proposed accommodation has two objectives. First, it is intended to ensure that employees obtain no-cost contraception. Second, it will protect certain religious organizations from “having to contract, arrange, or pay for contraceptive coverage.” Insurers and third-party administrators would take over these tasks.

Doesn’t this sort of accommodation make sense in our pluralistic society? HHS emphasizes that the different treatment accorded these religious organizations does not imply that the second group is less religious than the first. Instead, HHS recognizes that the employees in the second group likely have different needs and different values than those in the first group. The vast majority of Americans (including most Catholics) think the use of contraception can be a way of fulfilling their moral obligations, not betraying them.

The bishops rightly note that faith-based employers have a religious-liberty interest at stake in the mandate. They sometimes forget, however, that the employees of these institutions also have religious-liberty interests. In United States v. Lee (1982), the Supreme Court stated that granting an exemption to Amish employers who voiced religious objections to the payment of Social Security taxes “operates to impose the employer’s religious faith on the employees.”

Of course, the proposed accommodation is not the only way to balance the competing interests. The Catholic Health Association and others have suggested broadening the total exemption category to include religiously sponsored hospitals and universities, while providing contraceptives under another government program. This approach is simple, straightforward, and attractive.

But as we debate these options, let’s reject the canard that the proposal on the table is a cynical attack on religious institutions. That’s not the case.


Read more: Cathleen Kaveny continues the discussion at dotCommonweal.

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Kaveny's argument would have been strengthened if she had acknowledged that the 4-part definition of religious employer is defective. The first three parts are unnecessary and problematic. Catholic parishes not only (1) inculcate religious values, they also do charity; (2) Catholic parishes employ people who do not share our faith; and (3) Catholic parishes serve people who do not share our faith. The HHS definition was a stupid novelty cut and pasted from California law. It allows the bishops to raise the specter of a pastor turning away non-Catholic homeless people from spending the night in the church basement in sub-zero weather because he is afraid of losing his exemption from the mandate. All that is needed to exempt churches is #4, the section of the Internal Revenue Code that exempts churches from filing 990 information returns that are required of other tax exempt organizations. The bishops cannot object to this definition, which has been in Federal law for decades and which exempts churches from filing 990's.

The whole argument is pointless, it seems to me. Health insurance coverage is earned as part of the employee's compensation package. How the employee then uses the coverage is up to her or him, and should be as much a matter of the employee's choice as the use of her or his cash salary. The institution is not "paying for contraception," it is simply providing, as part of the employee's earned compensation, a package of health services the employee may or may not need or choose to use. The point of insurance pools is, in part, that different people may use the services at any given time, but not everyone will; certainly not everyone must. A package containing contraceptive coverage is, in fact, less expensive, because, as the article points out, it saves on other and greater costs, both personal and financial. Do the bishops really want to force Catholic instiutions to pay *more* for their employees' health coverage in order to prevent them from obtaining contraceptives as part of the plan? What is the logic there?

But the central point is that what employees earn by their labor belongs to them; it is not bestowed in charity. (The whole history of employer-paid health insurance demonstrates this.) For an employer to deny employees coverage for contraception on religious grounds makes as much sense as a Jewish or Muslim employer reducing employees' salaries by the amount they might be expected to pay for bacon. The whole compensation package, not just the cash salary, is earned, and once paid out, it is the property of the employee to be used as she or he chooses.

They sometimes forget, however, that the employees of these institutions also have religious-liberty interests."

Would Prof. Kaveny care to elaborate what such religious liberty interests are? Stating that by failing to provide free contraceptives an employer violates its employees' religious liberty sounds quite absurd. It is like claiming that by not providing free airplanes tickets to Acapulco my employer is thwarting my freedom to travel.

Linda Maloney makes excellent points. I add a few modifications and additions.

1. It is true that health benefits are part of an employee's total compensation. Therefore, it is earned for work performed. However, what constitutes health benefits is a decision that the plan sponsor or employer makes. This decision is usually a function of what is needed to be competitive, attract and retain good employees, and the employer's ability to afford the cost of such benefits while meeting its financial objectives. Any benefit program must not be discrimatory and be in accordance with State and Federal laws and regulations. 

2. This brings up the issue of whether States and the Federal Government can impose regulations and laws on plan sponsors mandating certain coverage for specific medical expenses, or not. The other issue is whether an "employer exemption of such laws and regulations" as defined by the Federal Government is constitutional and in accordance with the Government's right to make and inform such definition.

3. The other major issues of is one of due process and equity. By this I mean, whether an insurance company or third party administrator (TPA) is required to pay for a covered health benefit service without any means to be reimbursed for their services. To date, the Federal Government has not provided any practical means for insurance companies and TPAs to be reimbursed for their services in this matter. In other words, if employers will not be required to pay for these service, then an insurance company or TPA does not have an ability to get access to the so-called "savings" that contraceptive coverage is proported to accure to the plan sponsor, in order to get paid for their services. Apart from the inability of determining such "savings", which is almost impossible, the mandate as structured violates due process.

 

 Cathleen Kaveny presents a tightly reasoned argument that in the current controversy over healthcare insurance mandates the governement is not "defining religion." However,under close examination there appear to be major flaws in her argument that appear to undermine her position. She claims that based on a study by "The Institute of Medicine (that) recommended that contraception be treated as a preventive service because women with unintended pregnancies are more likely to engage in behaviors dangerous to themselves and their unborn children." Because of this, she writes further, "To HHS covering contraception is a public-health issue, not merely a matter of reproductive choice." One can easily imagine some "Institute of Health," if they have not already done so, declaring "ready access to abortion is necessary for the health and well-being of women (or words to that effect.)" So, in which case, abortions would be "preventive medicine" and not a "matter of reproductive choice." To me this renders Kaveny's argument at least meaningless, unless she is  open to equal weight given to any declared "preventiv medicine," which surely abortion will be so declared soon, if it has not already been so declared. I trust that would not be her stand then.  Furthermore, it is hard to discern intention; however, I tend to agree with Ms. Kaveny that the proposal on the table is not "a cyncical attack on religious institutions." But, whatever the intent, the effect of the provisions of the mandate do let the government define a Catholic religious institution. Furthermore, here statement that begins, "Of course, the propsed accommodation is not the only way to balance the competing interests," and which goes on to describe one such accommodation recommended by The Catholic Association, further undermines her argument, and, in fact supports those who do see a cynical attack on religious institutions; because, if, as she writes, "This approach is simple, straightforward, and attractive," why has the government taken that approach? As I have many times advised my liberal Catholic colleagues, we should ge standing shoulder to shoulder with the bishops, with the CHSA and other Catholic institutions on this issue; because if we do let the government so restrictively "define" a Catholic institution we are going to regret it when such definition comes,  as it inevitably will, to restrict our ability to bring Catholic Christian values to bear on other issues dear to us in the future. I believe liberal Catholic support for a change in the official stance on the issue of contraceptives is blinding us to the more important issue involved in the mandate controversy.

I appreciate Ms. Kaveny's and Ms. Maloney's stand on behalf of those employed by a quasi-religious - yes, quasi, organization and not of the faith.  

The Church made a pact with the nation once it accepted funds paid by taxpayers.  That brings the institution, whatever it may be, into secular equality with every non-faith-grounded organization.

Once that happens, the Church cannot revert to "religous" status alone.  Simply, the Church may find its way out of this mess by refusing all tax money and regaining its religious purity.  All churches HAVE the exemption from contraceptive coverage.  It is only those entities such as hospitals, charities, educational institutions that receive tax funds that have VOLUNTARILY placed themselves on an EQUAL footing with the rest of us that need to honor its employees moral values about health care coverage.

BTW - Straw men such as plane tickets really DO undermine any credibility of your arguments. The Church leaders have little enough credibility trying to take our tax dollars and avoid religious tolerance as it is.

 

 

I appreciate Ms. Kaveny's and Ms. Maloney's stand on behalf of those employed by a quasi-religious - yes, quasi, organization and not of the faith.  

The Church made a pact with the nation once it accepted funds paid by taxpayers.  That brings the institution, whatever it may be, into secular equality with every non-faith-grounded organization.

Once that happens, the Church cannot revert to "religous" status alone.  Simply, the Church may find its way out of this mess by refusing all tax money and regaining its religious purity.  All churches HAVE the exemption from contraceptive coverage.  It is only those entities such as hospitals, charities, educational institutions that receive tax funds that have VOLUNTARILY placed themselves on an EQUAL footing with the rest of us that need to honor its employees moral values about health care coverage.

BTW - Straw men such as plane tickets really DO undermine any credibility of your arguments. The Church leaders have little enough credibility trying to take our tax dollars and avoid religious tolerance as it is.

 

 

Church Lady, as you know, I do not agree with your argument that when an institution receives federal funds it loses rights under the Constitution. Hospitals, charitable organizations, schools and colleges have always been part of the mission of the Catholic church and long recognized as Catholic. Therefore such institutions do have the right to challenge mandates requiring them to pay for so-called health procedures that violate their religious moral standards. I hope the Church and it's supporters can negotiate the restoring of their rights under the Constitution; however, I suspect SCOTUS will make the final determination.

The mistake of the Bishops lies in not recognizing that a religious institution, like any employer, only acts as the employee's agent for accessing the subsidy for health insurance the government provides for employees when they (throught their agent/employer) purchase health insurance with their own wages.  The bishops have no more moral authority to determine what coveerage their employees purchase with their wages than to determine which food items they purchase they purchase with their wages. 

RE: Cathleen Kaveny (1-25-2013): Christians are told to “render unto Caesar what is Caesar’s”. 

 

Early Christians voluntarily paid taxes which was often used to build statues to Caesar that other people worshiped.  They willingly suffered excruciating debts rather than join these others in worshiping the statues. 

 

Kaveny says defining exemptions is not defining religion.  She is operating under the same fallacy as not seeing the difference between paying taxes to Caesar and worshiping the statue.  She doesn’t see the difference.  She clearly thinks they are the same.  They clearly are not.

 

By saying paying taxes and accepting the mandate are the same, she is confusing categories and is in serious error.

 

Val J. Peter, Director

The Catholic Center

Boys Town, NE  68010

 

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About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.