by John Garvey
On Wednesday the Supreme Court will hear oral arguments in Little Sisters of the Poor v. Burwell, a landmark case challenging the Department of Health and Human Services contraceptive mandate under the Affordable Care Act.
In addition to the Little Sisters of the Poor, an order of Catholic nuns whose mission is to “offer the neediest elderly of every race and religion a home where they will be welcomed as Christ,” the objecting parties include the university I head, the Catholic University of America, the Archdiocese of Washington, and a host of other religious institutions.
When the Affordable Care Act was passed in 2010, President Obama vowed that he wouldn’t let it be used for federal funding of abortions. That promise was necessary to get the law passed. Bart Stupak, a congressman at the time, and a small group of pro-life Democrats provided the necessary votes. In regulations implementing the act, HHS has chosen a different, and more offensive, way to fund abortions: It makes Catholic and other religious employers pay for them.
It is common knowledge that the Catholic Church has taught the immorality of abortion and contraceptive use for millennia. Yet the regulations in question force our institutions to pay for insurance that covers abortifacients like Ella and Plan B, plus prescription contraceptives and surgical sterilizations.
Some people defend these regulations by pointing out that they don’t make anyone get an abortion or use contraceptives. The regulations only require employers to provide insurance, leaving decisions about reproductive health up to individual employees. But we believe it is wrong to cooperate with evil acts, even if we are not the primary actor.
The government has offered to solve the problem for scrupulous employers by moving them one step further away from the wrongful act. Many employers, like Catholic University, hire an insurance company to handle their employees’ health claims. In return, we pay our insurer an annual premium, set to cover our usual claims experience. HHS proposes that instead of paying for abortions (and other objectionable services) ourselves, we can opt out, and the government will direct our insurance company to pay. The regulations add that the payments can’t come out of our premiums.
So where does the money come from? HHS suggests that insurers should front the money themselves, and it says that they will actually save money by offering free abortions and “preventive services.” According to the regulations, because the mandated services reduce childbirths, insurers can recoup their costs “from reduced pregnancy-related expenses and other health care costs.”
There isn’t much empirical evidence for this, but let us suppose it is true. In that case, the premiums that Catholic University pays once again cover the costs of abortifacients, contraceptives and sterilizations. Our insurance company simply moves the change around in its pockets so the objectionable services don’t get posted to our account. But we pay the insurer enough to cover the bills.
What the insurance company should do in future years, if HHS’s hypothesis is true, is lower our premiums to take account of the “reduced pregnancy-related expenses and other health care costs.” But in that case we have another moral dilemma. Then we are sharing in the financial rewards produced by giving our employees free early-term abortions and other “preventive services.”
Consider this analogy. I give my builder $100,000 to build a home. He finishes the job $10,000 below budget by employing underage workers and using black-market materials. It would be wrong for me to share in the savings from those immoral activities, even if I didn’t make the arrangements.
The Affordable Care Act requires employers like Catholic University to carry health insurance. The problem we are trying to solve arises because HHS has imposed a further obligation to cover “preventive services,” and insisted that either we or our agent (the insurance company) pay for them. A more tolerant solution would be for the federal government to fund “preventive services.” But President Obama had to promise not to do that to get the law passed. A still more tolerant solution would be to exempt religious organizations like ours from a duty to pay for services that go against the fundamental tenets of our faith.
The United States was founded on the concept of religious freedom. The First Amendment says clearly that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Little Sisters of the Poor, the university I represent, and countless other religious institutions across the country ask that the Supreme Court recognize our religious beliefs and strike down those regulations that would force us to violate them.
JOHN GARVEY is president of the Catholic University of America and a member of Legatus’ Washington, DC, Chapter. This article originally appeared in the WSJ on 03/20/16.