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eNews for Faith-Based Organizations
February 13, 2012 -- Special issue
Editor: Stanley Carlson-Thies
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Contraceptive Mandate: Some Progress, But More Required
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Last Friday's Announcements
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The Obama administration has come to more fully recognize the religious freedom issues at stake in the firestorm caused by the contraceptive mandate. Last Friday, February 10, President Obama announced an accommodation for faith-based service organizations (sometimes called parachurch organizations). Recall: the mandate requires employers, starting on August 1, to offer health insurance that covers, without co-pays, all contraceptives--including emergency contraceptives that many consider to be abortifacients--and also sterilization and reproductive counseling and education. A highly criticized "interim final rule" exempted only churches. That interim rule has now been finalized without any changes at all. But the administration said that it would adopt an additional regulation to accommodate parachurch organizations that have a moral objection to paying for the mandated items. The administration has given itself a year to come up with the new regulation--putting the matter safely on the other side of the coming presidential contest. And that additional accommodation is built on what some religious leaders consider to be an accounting gimmick, and it requires the creation of two distinct classes of religious organization. At a minimum, last Friday's compromise leaves vital details and concerns unaddressed.
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Some Progress
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Two important changes were announced. First, after months of resistance, the administration now concedes that it cannot limit its accommodation of religious concerns only to churches. Originally, to be exempt, a religious employer had to fall into an IRS church classification, be dedicated to "inculcating religious values," hire mainly people of the same faith, and serve mainly people of the same faith. This definition in the interim final rule left most, if not all, faith-based service organizations--from schools and crisis pregnancy centers to homeless shelters, hospitals, and universities--outside the exemption. They were, in effect, defined as not being religious at all. Their only choice was to bend to the mandate or else drop insurance coverage and pay a hefty per-employee fine. Forced now to accept that the original exemption is too narrow, the administration has promised to promulgate an additional regulation "to address the religious objections of the non-exempted non-profit religious organizations."
Second, during the next year, as the new regulation is being devised, the administration said it will not penalize non-church religious employers that refuse to pay for the contraceptives. This "temporary enforcement safe harbor" is available to non-profit religious organizations whose insurance plans, as of last Friday, did not include contraceptives, due to the religious beliefs of the organization. The religious employer has to ensure that its employees are given notice that the insurance does not pay for contraceptives. And because of the promised new regulation, they don't have to simply use the year to adjust their conscience to the mandate.
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Essential Details Missing
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Yet only the controversial interim final rule with its very narrow exemption has been finalized. The additional accommodation is only a generalized promise. Will it occur? What will the actual regulation be? Will all parachurch organizations be exempt or will some narrower definition be chosen? It is not encouraging that the administration several times already has insisted that one or another very limited religious freedom accommodation was all that was needed or appropriate. Note also that only nonprofit religious employers that currently do not include contraceptives in their health insurance plans are shielded while the regulation is developed. What might that mean for the final definition? Further, although the administration announced that it would find a way to accommodate the concerns of religious organizations that self-insure, it offered no details. And it did not even mention the concern of many religious higher education institutions that any insurance they offer to their students must cover contraceptives.
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Two Classes of Religious Employers
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The final rule announced on February 10 contemplates embedding in federal regulations two distinct classes of religious employer. The interim final rule essentially defined only churches as religious employers. Despite all the protest about how mistaken--constitutionally and empirically--this narrow definition is, the narrow definition has now been finalized in the federal regulations. The administration chose not to abandon the interim rule with its narrow definition so that in a new regulation it could expand the narrow definition to include parachurch organizations along with churches as "religious employers" exempt from the contraception mandate. Instead, it decided to create a new category of religious employer that will receive some religious accommodation, but not the same exemption as the churches receive. The final rule calls these other religious organizations "non-exempted, non-profit organizations with religious objections to covering contraceptive services." They are not yet precisely defined. Nor is the religious accommodation for them fully detailed--that is to be done over the next year. But it is clear the accommodation will be different than it is for churches. These second-class religious employers with exactly the same moral objections to the contraceptive mandate as churches have to accept a different and lesser degree of protection for their convictions, a kind of protection that may be mostly just words.
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Key Compromise is a "Fig Leaf"?
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ The main feature of the compromise the President announced last Friday is to displace from objecting religious employers to insurance companies the mandate to provide free contraceptives. "The employers," the President said, "will not have to pay for, or provide services." And yet "the women who work at these institutions will have access to free contraceptive services, just like other women . . . ." But why will the insurance companies offer contraceptives, sterilization, and reproductive counseling gratis to these women employees? Because the federal government will require them to--a new kind of contraceptive mandate. Not to worry, the administration says: This is a costless mandate on the insurers because research shows that they will save more money than they spend on the contraceptive drugs and services by not having to pay for as many births, as much pre-natal care, as many birth complications that occur when pregnancies are unplanned, etc. Ruth Marcus, a columnist for the Washington Post and an enthusiastic supporter of the contraception mandate, immediately labeled this central feature a "fig leaf"--albeit, in her view, a praiseworthy one.
The administration promises in its final rule that, according to its forthcoming new regulation, insurance companies will have "to offer insurance without contraception coverage" to dissenting religious organizations and "simultaneously to offer contraceptive coverage directly," without charge, to employees who want it. So the contraceptives will be supplied to the employees by the insurance company, not the religious employer. Even though the employees can only get the contraceptives from insurer X because they are the employees of the dissenting religious organization that has bought health insurance from insurer X, the employer isn't "providing" free contraceptive coverage. Is this more than a fig leaf?
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Broader Protections Required
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Because the interim final rule for the contraceptives mandate--which will now be incorporated into the Code of Federal Regulations--contained such a narrow and abusive definition of an exempt religious employer, most of the fight over the mandate has been about that nano-exemption. Yet while religious organizations with moral objections to paying for the contraceptives or abortifacients are naturally deeply concerned about the attack on their own religious freedom, that does not mean their concern is limited to their own employees. Their concern about the mandate stems from the teachings of the larger religious community they belong to. Should there be an expansive new regulation that exempts every parachurch organization, that will be satisfying, but it will do nothing to exempt fellow believers who run secular companies or those who must buy insurance in the individual market. It would be odd if these religious employers were concerned only about the insurance they buy for their own employees and not at all for what the contraceptive mandate means for their board members, volunteers, donors--for the many others, of the same faith or other faiths, who also deeply object to paying for abortifacients or birth control. Remember: as of August 1, every health plan, except for those bought by churches and those that are grandfathered, must cover, for free, all of those contraceptive drugs and services.
The "Respect for Rights of Conscience Act" (H.R. 1179/Fortenberry, S. 1467/Blunt), which is gathering bipartisan co-sponsors and support in Congress, is designed to offer broad protection to institutions and individuals who object to participating in or funding medical procedures and drugs to which they have a religious or moral objection. It should be no surprise that the US Conference of Catholic Bishops, among others, continues to call not only for strong and clear-cut protections for all religious organizations but also for passage of such broader conscience protections.
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Fundamental Protections Should Be Built Into the Foundations
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ If the US Supreme Court upholds the health care reform law, our nation will see a fundamental redesign of our health care system, a system extensively dependent on faith-based health care institutions--clinics, hospitals, teaching programs, insurers--and also religious health care professionals--doctors, professors, researchers, nurses, pharmacists, other staff. The system would be severely degraded if those faith-based institutions were hampered or forced to quit because their religious freedom was inadequately protected. And the system will be undermined if the conscience rights of medical professionals are not fully honored. Unfortunately, a significant part of the population would rather that religious health care professionals keep their views about contraceptive drugs, abortion, euthanasia, and embryonic stem cells to themselves, not letting these religious views "interfere" with their work. Yet all of us should want to strongly encourage everyone involved in the life-and-death profession of health care to cultivate and exercise their best ethical judgment as professionals, rather than to let their consciences be eroded under one or another well-intentioned secular requirement.
In the heated discussions about the mandate and exemption, many critics of religious employers have accused them of bad faith: You have no standing to protest this federal mandate because religious organizations already have accommodated to the reality that more than half of the states have a contraceptive mandate and some of those states have no exemption at all. Yet, as the National Conference of State Legislatures shows, while states such as California, New York, and Georgia mandate coverage of contraceptives and have minimal or no exemption, religious organizations can escape the requirement to pay for objectionable drugs and procedures by dropping, without a fine, their prescription drug coverage. But the federal mandate is much more sweeping than those state mandates, so it is absolutely crucial that the federal government be expansive in its religious exemption and its conscience protections.
The compromise offered on February 10 constitutes real progress, but it is hardly inspired by a passion for religious freedom. Nor does it contribute much to the pressing need to deeply and generously embed conscience protections for professionals and freedom for faith-based health institutions into our changing health care system. Now, when the foundations of our health care system are being modified, is the time to build in the maximum possible respect for conscience and for religious freedom, the maximum possible protections for faith-based organizations and religious professionals.
The Institutional Religious Freedom Alliance, along with many other faith-based organizations and advocates, stands ready to assist the administration and Congress to develop health care rules that incorporate protections for conscience and for faith-based service organizations as key features and not afterthoughts.
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IRFA Needs You!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ IRFA depends in large part on donations from people like you--people who care about faith-based services and about religious freedom. Will you come to the aid of IRFA? You can donate securely online here. Faith-based organizations and associations of faith-based organizations can support IRFA and institutional religious freedom by signing up for an annual membership. Organizations and individuals involved in supportive work (consulting, legal defense, etc.) can join as associate members. For membership details and forms, go here.
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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ For further information:
e-mail: info@IRFAlliance.org
website: www.IRFAlliance.org
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| What is IRFA?
The Institutional Religious Freedom Alliance works to safeguard the religious identity, faith-based standards and practices, and faith-shaped services of faith-based organizations across the range of service sectors and religions, enabling them to make their distinctive and best contributions to the common good.
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