Tag Archives: contraception mandate

ObamaCare vs. Little Sisters of the Poor

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.

What’s at stake on November 6

Alan Sears writes that the values Americans hold sacred are up for grabs this year . . .

Alan Sears

With Election Day right around the corner, Americans must decide not only who will serve in office, but how those “personnel choices” will affect crucial federal and state-level issues foundational to our nation’s heritage and to our continuance in the image envisioned by our Founders.

A quick look at recent headlines easily demonstrates that three of those issues — religious freedom, marriage, and the sanctity of life — are facing some of the most serious challenges we’ve seen in our nation’s history. (Click here for a related story.)

In probably the most prominent example, religious freedom has literally been under assault since ObamaCare’s introduction in 2009. The passage of that bill into law in March 2010 only upped the ante, and has since spawned an abortion pill mandate that literally forces business owners to forego their consciences and their faith in order to provide health insurance that covers abortion-inducing drugs, sterilization, and contraceptives for employees.

We witnessed a significant victory against the abortion pill mandate in August when Denver-based Hercules Industries won an injunction against the mandate. The company is led by Denver Chapter Legates William and Andrew Newland.

Alliance Defending Freedom represents Hercules in that case, and we were happy to see them secure relief from the coercion other businesses in America still face. Everyone needs to remember that votes cast at all levels on Nov. 6 will affect decision-makers who will have the power to repeal this mandate altogether.

Marriage, the most fundamental building block to the health and survival of the nation, is also endangered at the federal level and in many states across the country this November.

The Obama administration has not enforced the Defense of Marriage Act since officially announcing their opposition to the law on Feb. 23, 2011. This move emboldened individuals and special interest groups nationwide to push the redefinition of marriage. It opened the door for those seeking to impose a homosexual agenda on the military through repeal of the military’s so-called “Don’t Ask, Don’t Tell” policy in September 2011. It gave way to our President announcing his support for same-sex “marriage” in May 2012.

Not surprisingly, there are now efforts to secure same-sex “marriage” ceremonies for U.S. forces. The future of these ceremonies and, most importantly, the protection of religious freedom for chaplains who have biblical convictions against performing them, is in the hands of members of the House and Senate — many of whom Americans will have the opportunity to support or oppose in just a few days.

And at the state level, ballot initiatives in Maine, Minnesota, Maryland, and Washington will allow citizens of those states to decide whether they wish to protect and preserve marriage as the union of one man and one woman. These ballot initiatives are crucial not only for those states themselves but also because other states are watching. For example, groups in California, Colorado, Florida, Nebraska, and Ohio are already collecting signatures for proposed initiatives that either legalize same-sex “marriage” or repeal an existing ban on it.

Life is also on the ballot this November — both directly and indirectly. As Legatus magazine featured last month, Massachusetts voters will decide whether doctor-prescribed death will become the law of the land as it is in three other states. The “Death with Dignity Act,” which is on the ballot in the Commonwealth, allows doctors to prescribe life-ending medications for patients who then take the drugs home and end their lives when they’re ready.

It’s a surreal proposal, reminiscent of the famous lines of “Invictus” by English poet William Ernest Henley: “I am the captain of my fate. I am the master of my soul.” And it begs the question: Do we take our lives into our own hands only for the purpose of throwing them away with a prescription? Suffering patients need understanding and sound medical treatment, not encouragement to kill themselves.

Voters this year, as in all years, must look at the policies surrounding life that each candidate is promoting, weigh the candidate’s position, and choose those who will stand against the culture of death by standing for a culture of life.

Dropping our guard is simply not an option this November. Religious freedom, marriage, and life face serious challenges that simply cannot be put off for consideration in some future election cycle. The time is now. Your vote may help carry the day.

Alan Sears is a former federal prosecutor who held various posts in the departments of Justice and Interior during the Reagan administration. He is president and CEO of Alliance Defending Freedom. He and his wife Paula are members of Legatus’ Phoenix Chapter.

With liberty and justice for some?

Marie Hilliard contends that the HHS mandate is unfair and unconstitutional . . .

Marie T. Hilliard

With the economy in the doldrums, times are difficult enough for businesspeople. Americans now have to decide whether to violate their consciences or a federal law. If left unabated, these dilemmas will continue — even if the U.S. Supreme Court rules that the Patient Protection and Affordable Care Act is unconstitutional.

In a social system that is increasingly hostile to our free market heritage, hostility is also growing toward the Catholic Church. When seeking to insert faith-based values into public policy debates, Catholics often are accused of violating the separation of church and state. Nothing could be further from the truth. “The most significant aspect of the separation of church and state is not, as some seem to think, the shielding of the secular world from too strong a religious influence,” according to Yale constitutional law scholar Stephen Carter. “The principal task … is to secure religious freedom.”

During his 2010 visit to the United Kingdom, Pope Benedict XVI spoke of St. Thomas More’s integrity in following his conscience. “Each generation, as it seeks to advance the common good, must ask anew: What are the requirements that governments may reasonably impose upon citizens, and how far do they extend?

“There are those who would advocate that the voice of religion be silenced, or at least relegated to the purely private sphere….And there are those who argue — paradoxically with the intention of eliminating discrimination — that Christians in public roles should be required at times to act against their conscience. These are worrying signs of a failure to appreciate not only the rights of believers to freedom of conscience and freedom of religion, but also the legitimate role of religion in the public square.”

This has been seen blatantly in the U.S. Department of Health and Human Services (HHS) mandate that the employers provide — at no cost to their employees — contraception, sterilization, and abortion-inducing drugs and devices. Furthermore, religious or faith-based ministries may be exempted only if they evangelize, employ and provide services primarily to their own members. Only three states with laws mandating such employee prescriptive coverage define a religious agency as narrowly as the HHS mandate: Oregon, New York and California.

However, state laws do not impact self-insured plans under the Employee Retirement Income Security Act, under which many Catholic dioceses are regulated. The HHS mandate will negate this protection. It’s clearly disingenuous for the federal government to state that it’s mimicking state laws already in existence. Clearly our Gospel-mandated ministries are under attack.

But what about the private employer? Shouldn’t they also have conscience protection under the law? Of course! That’s why it’s so appropriate that Legatus has filed a lawsuit against the HHS mandate, reflecting the need to protect businesspeople from HHS’s violation of religious liberty. (Click here for related story) Yet attacks against the consciences of private employers, employees, and businesses existed before there was an HHS mandate — and they continue.

A fertility practice that limited its practice to married couples was ordered by the California Supreme Court in 2008 to provide service to lesbians despite the physicians’ religious objections. In New York, a nurse was forced in 2009 to assist in a not-immediately-life-threatening abortion after having given all the appropriate notice of such objections. Her supervisor threatened her with actions against her nursing license. The court determined that the nurse had no right of private action against her employer.

Twenty-five states have passed legal mandates requiring pharmacies to provide emergency contraception to customers. Fortunately, brave pharmacy owners in Washington stepped up to the plate to challenge this injustice. The courts recently reversed the position of the Washington State Board of Pharmacy after the Becket Fund, representing the pharmacists, got the Board’s anti-conscience position reversed. However, the state’s attorney general is appealing the decision.

Where is Thomas Jefferson when we need him? “Our rules can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.”

All of us — particularly lay people — need to echo this assertion: “We cannot submit; we will not submit. Our conscience is answerable not to the state, but to God.” We cannot accept that there be liberty and justice only for some. Persons of faith can lay claim to the “first right” guaranteed by the First Amendment of the U.S. Constitution — the right to religious liberty. We can and we must.

Marie T. Hilliard, JCL, PhD, RN, is a staff ethicist at the National Catholic Bioethics Center.

Assessing Obama’s assault on religious liberty

Fr. Thomas Berg contends that Catholics must resist Obama’s immoral mandate . . .

Fr. Thomas Berg

The Department of Health and Human Services (HHS) issued a final rule on Jan. 20 requiring all insurers to include free coverage of abortion-inducing drugs, sterilization procedures and prescription contraceptives in their insurance plans — including those sponsored by employers. All of these “preventive services” are instrumental to engaging in intrinsically evil actions, as consistently taught by the Catholic Church.

On Feb. 10, President Obama announced that the administration would pursue an “accommodation” to address objections to the HHS mandate. He did so by principally removing the employer from the equation, shifting the cost of the objectionable coverage from the employer to insurance companies.

The outcry from a broad spectrum of Americans of both political parties, a plethora of religious affiliations, and most notably from the Catholic bishops under the leadership of Cardinal Timothy Dolan, has been powerful. With great effect, the bishops have insisted that the administration’s assault on the religious liberty of some is an assault on the religious liberty of all. Nor will the bishops tolerate a solution that exempts Catholic institutions while leaving tens of thousands of religiously minded and conscientious individual employers without recourse.

Proponents of the mandate have suggested that insurance companies could rely on health cost savings that would accrue due to the availability of the “preventive services.” But the vast majority of analysts believe that the very real costs of providing “free” services in insurance will be passed on to the employers in form of higher premiums. Now three months into the controversy, experts can envision no scenario relying on insurance to cover these services which disentangles religiously affiliated employers sufficiently to satisfy Catholic moral concerns. In greater detail, here’s why.

The government intends to force insurers to cover these products and services even though the contract between the insurer and employer excludes them. Thus, from the perspective of a Catholic employer, if it chooses to offer health insurance to its workers, it will know in advance that this coverage pays for the problematic products and services. The government is leaving no way around this problem because it is insisting that the mechanism for providing “free contraception” to the public must be the insurance system.

Consequently, it remains the case that when a Catholic employer chooses to offer insurance, it will, by definition, trigger insurance coverage for the very same objectionable products and services. That is, employees will have access to these proscribed services and products in virtue of the contract between employer and insurance company. Thus, the Catholic employer is left in the position of either accepting to be a key cog in the process of facilitating access to gravely immoral practices or of not providing health insurance at all to its workers.

That “being a key cog in the process” is termed in Catholic moral theology as “material cooperation” (as opposed to “formal cooperation,” which would mean willfully being a cog in an evil endeavor — like the get-away driver in a bank robbery). Conscientious Catholic employers who wish to be faithful to Catholic moral teaching would certainly not approve of their insurance policies covering these services (that would be formal cooperation), but by acquiescing to the mandate they would find themselves in this position of materially cooperating. The Church teaches that material cooperation can at times be licitly tolerated in view of very serious reasons. Is the provision of health insurance to employees a serious enough reason to allow for this degree of complicity?

The evident moral good of providing health insurance to employees (with all the attendant benefits) does not supersede the grave moral requirements of upholding religious liberty, protecting the life of the unborn and witnessing to the world about the right ordering of human sexuality. While the provision of health insurance by employers is certainly in full harmony with Catholic social teaching, it is not — nor have the bishops of this country ever taught that it is — a positive moral obligation of Catholic employers. Of course, in 2014 and beyond, employers will have even less of an obligation to provide insurance to their workers as the government will have set up by then an alternative insurance access point in every state.

But what a tragedy it would be for any Catholic employer to have to face such a choice. Before it comes to that, it is our hope, rather, that reason will prevail through the voices of concerned citizens all across this country. We must continue to reject empty offers of “accommodation” and demand rescission of this unconstitutional, unlawful and immoral regulation.

Rev. Thomas V. Berg is a member of the New York State Task Force on Life and the Law and professor of moral theology at St. Joseph’s Seminary in Yonkers, N.Y. James C. Capretta is a fellow at the Ethics and Public Policy Center in Washington, D.C.

A threat to conscience

How the Obama administration’s contraception mandate affects you and your business . . .

As president of Heartbeat International, Peggy Hartshorn could face a moral dilemma if a provision of the new federal health-care law remains unchanged.

Under mandates adopted Aug. 1 for private insurance plans – and hailed by Planned Parenthood, which lobbied for them as “preventive services” – Heartbeat and other faith-based organizations with employee health-insurance plans will be required to provide full coverage for surgical sterilization and prescription contraceptives, including drugs that can cause abortions.

Weak exemption

The mandates also affect hospitals, charitable institutions, universities and schools with employee health programs — many of them religiously affiliated. Some plans initially will be grandfathered in, but eventually they’re expected to lose their exemption as changes are made to them.

Richard Doerflinger, associate director of the U.S. Conference of Catholic Bishops’ Secretariat of Pro-Life Activities, said the bishops’ employee plan, for example, can continue as is until significant changes are made. Ultimately, however, the intent is that every plan in the country must comply with the mandates, he said.

Furthermore, organizations that object to the requirements on religious or moral grounds can only be exempted if they are nonprofit organizations having as their purpose the inculcation of religious values — and only if they employ and serve primarily those who share their beliefs.

That would leave out an organization like Heartbeat, which provides pregnant women with alternatives to abortion, regardless of their religious beliefs.

“It’s almost no exemption at all,” said Matt Bowman, legal counsel with the Alliance Defense Fund (ADF). “It’s unprecedented in federal law to claim that almost no one is a religious entity. I think a lot of religious entities would be surprised to find that the Obama administration doesn’t think they are religious because they serve people who don’t have the same faith.”

Doerflinger agreed. “Only if you stop helping people are you considered religious enough to be exempt. It’s just the opposite of our notion of our faith.”

“What’s bothersome to me is this puts people in a Catch 22,” added Catholic League president Bill Donohue. “According to the wisdom of the Obama administration, because you’re not serving almost exclusively Catholic clientele, it’s a problem.”


Cardinal Daniel DiNardo

Cardinal Daniel DiNardo, chairman of the bishops’ Secretariat of Pro-Life Activities, has called the mandates “a new threat to conscience,” adding that without sufficient legal protection for conscience rights, all Americans will be forced to carry health coverage that violates the moral and religious convictions of many.

Cardinal DiNardo is encouraging legislators to support the Respect for Rights of Conscience Act, introduced in the House by Rep. Jeff Fortenberry (R-Neb.) and in the Senate by Sen. Roy Blunt (R-Mo.). The bill would amend the Patient Protection and Affordable Care Act (aka ObamaCare) to protect conscience rights regarding mandates for coverage of specific items and services.

Doerflinger said the legislation provides that no mandates under the health-care act can be used to prevent insurers, purchasers or sponsors of insurance from negotiating a plan in accord with their moral or religious convictions. Currently, he said, any organization has the right to ask a private insurer to exclude certain things from coverage.

“All we’re doing is trying to maintain the status quo,” he said.

Kathleen Sebelius

Heartbeat’s Hartshorn, a member of Legatus’ board of governors, said the mandates should have been expected given the views of President Barack Obama and Kathleen Sebelius, secretary of Health and Human Services.

“It’s very clear how strongly in the camp of Planned Parenthood and abortion providers Sebelius has always been,” Hartshorn said. “She is a major proponent of birth control and abortion. When she became head of Health and Human Services we expected the worst, so I shouldn’t have been surprised, but [the mandates] did take me aback.”

In announcing the new guidelines, Sebelius, who says she’s Catholic, called them “historic.” The mandates, she said, “are based on science and existing literature and will help ensure women get the preventive health benefits they need.”

However, Bowman countered, “Pregnancy is not a disease and these things are not preventive health care in the first place.”

Religious freedom

Meanwhile, those who oppose the mandates have submitted comments to the Department of Health and Human Services (HHS) arguing for an expansion of the religious exemption. The department accepted comments on the definition of a religious employer in the new rules for a 60-day period that ended on Sept. 30.

Chuck Donovan, a member of Heartbeat International’s board and senior research fellow at the Heritage Foundation, said the HHS invitation for comment doesn’t necessarily suggest the department is willing to make changes.

“In fact,” he said, “the administration is doing other things to suggest that narrowing religious exemptions is their intent.”

ADF’s Bowman believes that forcing Christians and pro-life organizations to cover abortifacient drugs and devices over their objections would violate the Religious Freedom Restoration Act of 1993. In addition, he said, some of the contraceptives covered by the mandate, particularly ella, can cause very early first trimester abortions.

“Those were not supposed to be part of the health insurance overhaul,” he said.

Doerflinger said the USCCB contends that the mandates represent a violation of religious freedom as well as the Religious Freedom Restoration Act. Barring Congressional action, he expects Catholic organizations will challenge the mandates in court.

If the religious exemption is not changed, Doerflinger said an employer who objects to the mandates would find that all available health-care plans provide full coverage for contraception and sterilization. “So his choice would be between buying a plan that violates his values and no plan at all,” he said.

If he chose the latter, Doerflinger said, a fine would be imposed and employees would be directed to health-care exchanges where their only choice would be to buy a plan with contraceptive coverage. In that case, the employer who objected to such coverage on moral grounds would end up subsidizing the very same care through his penalty.

“At a time when tens of millions of Americans still don’t have basic health coverage, to be mandating that all plans have to cover these controversial elective procedures is a very skewed sense of priorities,” Doerflinger said. “Our position has always been that everyone must have access to basic health coverage. Nothing should take precedence over everyone getting access to basic life-affirming services. This certainly does not qualify.”

Judy Roberts is a Legatus Magazine staff writer.