Obama’s Contraceptive Mandate Will Snare Religious Organizations

Published November 2, 2011

A proposed Health and Human Services (HHS) mandate emanating from President Barack Obama’s Patient Protection and Affordable Health Care Act will require all private health insurance plans to cover contraceptive and sterilization prescriptions as “preventative services” for women. Contraception and sterilization are currently causes of religious tension in many states, and this mandate has become a serious issue for religious institutions.

HHS has stated there is a “religious exemption” to the mandate, yet the definition that applies to the mandate is so narrow most religious organizations will not qualify.

HHS says to be exempt from covering contraceptive and sterilization prescriptions, an institution must meet the following requirements: “(1) has inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization.”

Under this definition, parochial schools and universities, charitable organizations, and even Catholic hospitals will not qualify for the exemption.

First, the use of the word “primarily” poses significant problems. The word is vague and, if it is assumed to mean majority, it will eliminate many religious organizations. Not all religious schools teach children of the same faith, they most definitely do not all primarily employ teachers or other staff members of the same religion, and the purpose of a school is to educate, not inculcate.

The same can be said for religious hospitals. According to Sr. Mary Ann Walsh of the U.S. Conference of Catholic Bishops, one of six Americans seeks treatment in a Catholic hospital. Most Catholic hospitals do not primarily employ people of the Catholic faith; the main purpose of hospitals is to heal, not inculcate; and such hospitals definitely do not provide health care for Catholics only. Walsh says this means Catholic hospitals will be given an ultimatum: Abandon their values and go with the government, or be true to their doctrines and either violate the law or serve only Catholics, which would undermine ministry efforts.

“We help others because we are Catholic, not because others are Catholic,” Walsh noted.

HHS spokesman Richard Sorian has stated the agency is “really trying to strike a balance between providing access to proven prevention and respecting religious beliefs.” However, when the law defines “religious exemption” in such a narrow and vague manner, the opposite seems to be true.

Regardless of the intentions that drive those drafting the mandate, the rule is a clear attack on First Amendment rights.

University of Notre Dame President Fr. John Jenkins wrote to HHS on the issue, noting that under the university’s current health plan, and in accordance with the university’s values, contraceptive and sterilization prescriptions are not covered unless prescribed for medical needs other than preventing conception. The same coverage is shared by other religious colleges and universities.

In his letter to HHS, Jenkins stated, “It’s about religious freedom, it’s not about contraception.”

He’s right. If HHS truly wished to respect religious beliefs, it could have followed the tax code’s definition of religious employers. As Jenkins notes in his letter, the tax code definition is far more open, including institutions that share “common religious bonds and convictions with a church.”

The law appears to have been drafted intentionally with different language and, therefore, the contraception and sterilization mandate is an obvious intrusion of federal authority.

Many opponents of religion have long vocalized their desire for separation of government from religious matters. One wishes they’d show some consistency and step in to defend religious organizations from this obvious case of government interference in religious values and institutions.

In any case, unless HHS reforms this decision it should expect a continued uproar from religious institutions, no longer in letters but in lawsuits.

Kendall Antekeier ([email protected]) is the health care legislative specialist for The Heartland Institute.