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Comments Due June 19 on Administration's "Accommodation" Ideas
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Through June 19th the administration is accepting comments on its mid-March Advance Notice of Proposed Rulemaking (ANPRM) concerning a religious accommodation for faith-based organizations not eligible for an exemption from the contraceptives mandate. The easiest way to comment is electronically. Go to www.regulations.gov, enter "CMS-9968-ANPRM" in the search box, and then click on the "Comment Now" button in the right-hand column.

 

The ANPRM suggests various ways to implement the President's promise that non-exempt religious organizations can purchase employee health plans that do not include contraceptive services while the employees nevertheless can get contraceptives coverage without cost to themselves or to the employers. No actual regulatory proposal is made; the ANPRM instead is gathering information and views.

 

Points to consider making:

• It is not acceptable to create in federal law two classes of religious organizations: churches, which are considered religious enough to receive an exemption; and faith-based service organizations, which are not afforded the same exemption but only a lesser "accommodation." Even the best designed accommodation cannot overcome the grave flaw of writing into federal law a view of religious organizations that treats service to neighbors-commanded by God--as less important than worship of God.

• The harm of creating two classes of religious organizations in federal law is not overcome by stating that no precedent is intended nor by denying any implication that faith-based services are less sincere or more secular. The harm has already been done by putting into the federal regulations the narrow exemption and by promising only a lesser "accommodation" for faith-based service organizations.

• Faith-based service organizations ought to be included in the "religious employer" exemption by redefining that exemption to include all religious organizations, not only churches, so that those providers with a religious objection to some or all of the contraceptive drugs and services can exclude those from its employee health insurance.

• A broadened exemption must not require a faith-based service organization to be associated with or controlled by a church or denomination in order to be counted as a "religious employer." Faith-based ministries and schools not formally connected to a denomination or church are common in our society.

• Any "accommodation" or expanded exemption must be available to all faith-based service organizations, not only those eligible for the "temporary enforcement safe harbor" or that on some arbitrary date in the past had health insurance coverage that excluded some or all FDA-approved contraceptive procedures and drugs.

• The nature of the "accommodation" sketched in the ANPRM is unacceptable. The promise was that religious organizations can buy health insurance that does not cover objectionable contraceptive procedures and drugs, while the insurer will offer those same procedures and drugs for free to the objecting religious organization's employees who desire them. There are multiple flaws: (a) The ANPRM states that the insurer will automatically give the contraceptives coverage to the employees, whether or not they desire it (p. 16505). (b) Those employees will gain contraceptives coverage by virtue of the fact that their employer provides health insurance-this is a simple cause and effect. (c) The contraceptives will have to be paid for in some way-how else than through the employer premiums? (d) Notwithstanding the "accommodation," a religious employer with a religious objection to the mandated contraceptives is prevented from offering what it desires: employee health insurance that provides positive coverage without including religiously objectionable drugs and procedures.

The administration is not required to change its plans in response to comments received. But this is a good opportunity for organizations to make their views known to government officials who are in charge of designing and revising the regulations that will apply to those organizations.

 

Resources:

 

* The Advanced Notice of Proposed Rulemaking on "Certain Preventive Services Under the Affordable Care Act," 77 Federal Register 16501 (March 21, 2012).   

 

* IRFA memo, "Contraceptives/Abortifacients Mandate, Religious Freedom, & Parachurch Ministries" (April 27, 2012).

 

* Christian Legal Society memo about commenting on the ANPRM.  

 

* Comment on the ANPRM submitted by the U.S. Conference of Catholic Bishops. http://www.usccb.org/news/2012/12-084.cfm  

Letter to HHS Secretary Sebelius Protesting the 2-Class System
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150 Protestant and Catholic leaders and supporters of faith-based service organizations, churches, and religious freedom groups sent a letter yesterday to HHS Secretary Kathleen Sebelius asking that the administration reverse course by eliminating the two-class system of religious organizations that it has created.  

 

The administration has written into federal regulations its very narrow definition of "religious employers" that are exempt from the contraceptives mandate. It has promised only an "accommodation" for other religious groups-less than an exemption. These other groups are authentically religious organizations that do not fit into the narrow "religious employer" exemption because they serve the public, are not defined by the IRS as churches, engage in more than "the inculcation of religious values," or might hire some or many people of a different faith than the organization.

 

The letter says:

 

"[W]e are united in opposition to the creation in federal law of two classes of religious organizations: churches-considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations-outwardly oriented and given a lesser degree of protection. It is this two-class system that the administration has embedded in federal law via the February 15, 2012, publication of the final rules providing for an exemption from the mandate for a narrowly defined set of "religious employers" and the related administration publications and statements about a different "accommodation" for non-exempt religious organizations.

 

"And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations. To use Christian terms, we owe God wholehearted and pure worship, to be sure, and yet we know also that "pure religion" is "to look after orphans and widows in their distress" (James 1:27). We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry."

 

Signers of the letter represent colleges and universities, k-12 schools, health clinics, overseas development organizations, religious freedom advocacy, churches, and more. The letter was also sent to Joshua DuBois, Executive Director of the White House Office of Faith-Based and Neighborhood Partnerships.

 

Click here for the letter with signatories. 

Good News About Religious Student Clubs
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