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Let's Declare Independence From Religious Health-Care Restrictions

While the bishops' religious freedom complaint may be suspect, real difficulties underlie the accommodation the Obama administration crafted on contraceptive coverage.

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The following is reprinted with permission from  Religion Dispatches. You can sign up for their free daily newsletter  here.

​On July 4, the Catholic bishops will conclude their Fortnight for Freedom, a vigil that opened the grassroots phase of their campaign to gain official religious status for hospitals, universities, and social service agencies they neither control nor support financially. That status, as has been widely noted, would exempt these organizations from the administration’s requirement that an employer’s health insurance plan cover contraceptives, with no co-pay or other costs to the employee. But the longer-term goal is to legally shore up the contention that every organization and employer, religious or not, has the right to refuse to comply with any public policies they claim trouble their conscience. 

The bishops’ ham-handed lobbying, extreme language, and unyielding position have not helped their cause. Bishop Daniel Jenky compared the president to Hitler; Cardinal Dolan of New York insisted that Obama was trying to “strangle” the Catholic Church; and others have claimed that they would be forced to stop providing health care rather than comply with the contraceptive coverage requirement. 

Nor has the bishops’ cause been helped by the fact that just about everyone understands that Catholics have a right to disagree with the Church’s position on contraception, and that providing someone with the means to obtain something that they have a moral right to obtain is also theologically sound practice. 

Two weeks of Church-sponsored rallies, masses, marches, and educational symposia are not going to influence the Obama administration to change its mind about the definition of who is entitled to an exemption from public health policy it deems important to women’s health and society. There are just far too many unintended pregnancies that end in either abortion or children poorly cared for to ignore the problem.  

If the bishops, who are so unpopular, were the only worry, the exemption would stay narrow—or be narrowed even further. However, just before the Fortnight began, the Catholic Health Association, which includes over 600 hospitals across the United States, released its comment letter on the contraceptive insurance mandate concluding that the Obama accommodation, which would have had insurance companies implement and pay for the mandate in these hospitals, would not work. It was simply not possible to separate functions so neatly, it claimed, and many CHA hospitals are self-insured. Thus, the only answer is to broaden the exemption so that the hospitals are treated the same as the religion itself.

In some quarters the letter was treated as a reversal of position—even a sign of bad faith, or that the bishops had gotten to Sister Keehan and reeled her in. It would be fairer to take the letter at face value, as an acknowledgement that on close examination Obama’s suggested accommodation simply would not work—a reasonable conclusion given the self insurance issue and that it is still not clear whether the insurance companies would pick up the slack in the remaining cases.

So the CHA returns to its original position more strongly, once again requesting a broader definition of a religious employer that includes them. The real issue is not contraceptive coverage, which many Catholic hospitals are already providing on a state-by-state basis where required, and in some cases voluntarily.

Though it’s not the same as acting in bad faith, the CHA is probably not unhappy that the accommodation seems unworkable as it would much prefer to get another bite at the apple and make the case for religious status.

Unless organizations like Catholic hospitals are allowed the same status as the religions themselves, they are likely to be treated under the law much as we treat individual religious persons. And the Supreme Court has already determined that when public policy aimed at everyone conflicts with individual religious beliefs, public policy is the higher good. Justice Scalia in his majority opinion in Employment Division v. Smith, 1990,  noted: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”