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eNews for Faith-Based Organizations
June 28, 2012

Editor: Stanley Carlson-Thies
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In this issue
Supreme Court Upholds Health Law--Religion Freedom Concerns Continue
Contraceptives Mandate: Another Bad Definition of Religious Organizations is Proposed
Notable Comments on the ANPRM
Notable Quotes
Also Worth Reading
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Supreme Court Upholds Health Law--Religious Freedom Concerns Continue
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Today's Supreme Court decision upholding the Affordable Care Act--the complex health care and health insurance reform laws--will be analyzed and debated for years. In a big surprise to many, the Court upheld the "individual mandate"--the requirement that virtually everyone must get health insurance or otherwise pay a penalty.

 

What about that other mandate--the contraceptives mandate that requires organizations' health insurance plans for their employees to cover all FDA-approved contraceptive services, including sterilization and contraceptive drugs that some believe act as abortifacients? The contraceptives mandate was not specifically before the Supreme Court but if the Court had struck down the law as unconstitutional, then this part of it, too, would have been voided.

 

Instead, the Court has upheld the law. Is the contraceptives mandate itself constitutional, or does it violate the Religion Clauses of the First Amendment? Does it violate the Religious Freedom Restoration Act? The Supreme Court did not consider these questions.

 

However, now that the law has been upheld, other courts will be considering the legality and constitutionality of the contraceptives mandate--recall the many lawsuits challenging the contraceptives mandate that have been filed by Catholic and Protestant organizations, by religious businesses, by religious persons, and by states. The Becket Fund for Religious Liberty has a complete list of the cases.

 

What can religious institutions and individuals with concerns about the contraceptives mandate do?

 

Go here for IRFA's memo for parachurch organizations, explaining the mandate, how it applies to different organizations, and what can be done. As action items, the memo notes a letter to the HHS Secretary, which has already been sent, and the possibility of commenting on the Advance Notice of Proposed Rulemaking about a promised "accommodation" for non-church religious organizations that are not exempt from the mandate--the deadline for commenting is past (see the story below). Other options noted: file or join a lawsuit and press your objections on Congress.

 

One option not noted in the memo: Consider the contraceptives mandate and its treatment of religious organizations when evaluating candidates for federal offices. This does not "politicize" the issue but just acknowledges that Congress makes the laws and the President administers--with considerable discretion--those laws.
 
Contraceptives Mandate:  Another Bad Definition of Religious Organizations Is Proposed
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In the context of the contraceptives mandate, the federal government has created a two-class system of religious organizations. "Religious employers" are identified in the regulations by a four-part definition that essentially covers only churches (and possibly not all churches). These "religious employers" are exempt from the contraceptives mandate. What about all the non-church religious organizations, such as faith-based daycare centers and pregnancy resource centers, schools and universities, health clinics and hospitals, overseas development groups and adoption agencies? The administration says it is designing an "accommodation"--not an exemption--for them. The administration promises that it will be possible for such religious organizations to buy insurance that does not cover or pay for contraceptives, including those that may act as abortifacients--but if they choose such insurance, then the insurance company or some other entity will have to give the full contraceptives coverage to the employees of that very same religious organization. Not much of an accommodation of the conscience concerns of those organizations!

 

What entities will be eligible for this accommodation? The government's Advance Notice of Proposed Rulemaking (ANPRM) from mid-March asked for definitions of the "religious organizations" that are to receive an accommodation, not an exemption. And it suggested that one way to formulate that definition was by looking to Section 414(e) of the Internal Revenue Code "which sets forth definitions for purposes of 'church plans.'" These church insurance plans can cover the employees not only of the actual church but also of certain connected organizations--"organizations such as hospitals, universities, and charities that are exempt from taxation under section 501 of the Code and that are controlled by or associated with a church or a convention or association of churches" (to quote the ANPRM).

 

What's it mean for an entity like a school, hospital, or charity to be "controlled by or associated with" a church or denomination? In order for the tie to be close enough that the service organization is counted as a "religious organization" under such a definition, does the church leadership have to control the service group's board? Does the service group have to have the same statement of faith as a church or denomination? What about ecumenical religious organizations that draw their support and inspiration from more than one denomination, perhaps even more than one religion?

 

And why should a faith-based service organization not be recognized as being religious in itself--because of its own religious creed and standards, its own religious identity--and not have to "borrow" its religious identity by being linked to a house of worship?

 

A definition like this just perpetuates the problem of the two-class treatment of religious organizations. Not only churches are fully religious; not only worship is a duty commanded by God. The major religions require not only worship of the Deity but also love of neighbor-worship in church and service of neighbors are both exercises of religion protected by the Constitution. "Pure religion," according to the New Testament, includes this: "to look after orphans and widows in their distress" (James 1:27).

 

Although a definition of religious organization based on Sec. 414(e) has been recommended by some religious groups that provided comments on the ANPRM, the administration should reject this mistaken idea which most likely will leave out many authentically religious organizations and in any case is built on a flawed view of what real religion is.

 

The only real solution remains this: go back to the beginning and define "religious employers"--which are exempt from the contraceptives mandate--to include all religious organizations, whether churches, other entities connected with a church, or organizations that are themselves religious. Find some way other than the contraceptives mandate to ensure that employees get needed access to preventive services.

 

And if the mandate is replaced, then the religious freedom of religious people operating secular organizations, and the religious freedom of religious businesses--organizations that the administration does not want to acknowledge are religious at all--will finally also be honored.

 

For further reading:

 

A case for building a definition on Sec. 414(e), from the Catholic Health Association: CHA Comments on ANPRM on Women's Preventive Services, June 15. Find it here. http://www.chausa.org/

 

A sharp criticism of the Sec. 414(e) idea by the Cardinal Newman Society. 

Notable Comments on the ANPRM
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In February the President promised to fashion an "accommodation" for religious organizations with an objection to the contraceptives mandate but who do not fit within the very narrow definition of exempt "religious employers." In mid-March, an Advanced Notice of Proposed Rulemaking (ANPRM) was published, soliciting comments on various ideas of how to design such an accommodation and how to define the non-exempt religious organizations that would be eligible for the accommodation. 

 

According to a Senate source, the federal Health and Human Services department received more than 63,000 public comments, of which the "vast majority--more than 40,000--oppose the mandate or accommodation." The government is bound to take note of every comment but can disregard or override any of them that disagree with its own interpretation of what should be done.

 

A few of the worthy comments critical of the contraceptives mandate and its treatment of religious freedom:  

 

Christian Legal Society 

 

Council for Christian Colleges and Universities

 

US Conference of Catholic Bishops 

 

Union of Orthodox Jewish Congregations of America 

Notable Quotes   

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*  Philip Tartaglia, "At the Door of the Temple: Religious Freedom and the New Orthodoxy," Public Discourse, June 27: 

 

"Human Autonomy Rightly Understood. Religious freedom is more than freedom to worship, but is also the freedom to express and teach religious truth. It must include the freedom to evangelize, catechize, and serve the needy according to a religious community's own precepts. Religious freedom is thus intertwined with freedom of expression, thought, and conscience. Believers should not be treated by the government and the courts as a tolerated and divisive minority whose rights must always yield to the secular agenda."

 

*  Richard Garnett, "Religious Freedom and the Nondiscrimination Norm," forthcoming in Matters of Faith: Religious Experience and Legal Response (Austin Sarat, ed., Cambridge Univ. Press):

 

"The separation of church and state is . . . an arrangement in which the institutions of religion are distinct from, other than, and meaningfully independent of the institutions of government. It is a principle of pluralism, of multiple and overlapping authorities, of competing loyalties and demands. It is a rule that limits the state and thereby clears out and protects a social space, within which persons are formed and educated, and without which religious liberty is vulnerable. So understood, "separation" is not an antireligious ideology, but an important component of any worthy account of religious freedom under and through constitutionally limited government."

 

*  American Association of Christian Counselors, " 'Freedom of Conscience Act' Protects Christian Counselors through Values-based Referrals," Counsel Alert:

 

"Contrary to the views of some who criticize the bill, the 'Freedom of Conscience Act' [HB 5040, the 'Julea Ward Freedom of Conscience Act' adopted recently by the Michigan House] represents significant progress in responsibly addressing the ethical challenges that often arise in the counseling profession. It has always been the ethical duty of mental health providers to connect clients with another professional who can render quality care when the presenting issue lies outside of their area of expertise or core value system. The Michigan House of Representatives is to be applauded for taking on this ethical challenge, rather than avoiding it." 

 

*  Dwight Duncan, "Religious Freedom: Use It or Lose It," Public Discourse, June 26:

 

"It's a bit of a Paul Revere moment. Only this time it's not the British that are coming. It's Big Brother. Or, if you prefer, think of Rosa Parks. We can go along and sit quietly in the back of the bus, or we can stand up for human dignity and the rights of conscience. When it comes to our precious heritage of religious freedom, we must either use it or lose it."

Also Worth Reading 
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*  Mollie Ziegler, "Savvy PR firms drive coverage of HHS mandate," Get Religion.org, June 14.

 

Michael Gerson, "The Fundamental Debate Between Liberalism & Pluralism," Capital Commentary, June 22.
 
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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.