No, it’s not all great news.
The Catholic Health Association (CHA) and its leader, Obamacare advocate Sr. Carol Keehan, DC, have apparently reversed their position and now stand in opposition to the Obama administration’s inadequate “accommodation” on the HHS contraceptive mandate. Kudos for that!
But as is becoming a tiresome habit for CHA, they aren’t standing entirely with the bishops. CHA says in today’s letter to HHS that it wants the contraceptive mandate’s exemption “broadened to cover all ministries of the Church,” just as the bishops have argued. Yet in direct contradiction to the bishops, CHA is pushing for a new definition of religious organizations that could prove even worse than the Obama administration’s current language. And if accepted, the CHA definition could be a disaster for the cause of religious liberty and for Catholic higher education.
The Cardinal Newman Society has been warning about this since last December, after CHA and the University of Notre Dame both recommended to HHS Secretary Kathleen Sebelius similar solutions, drawing on language in Section 414(e) of the Internal Revenue Code that exempts church-related pension plans from the Employee Retirement Income Security Act (ERISA).
We explained in our press release last December:
Under Section 414(e), exemption from federal law is available only to an organization that is “controlled by or associated with a church or a convention or association of churches,” meaning that the organization must at least share “common religious bonds and convictions with [its] church or convention or association of churches.” In 2001 the U.S. Court of Appeals for the Fourth Circuit said that three factors bear primary consideration when deciding whether an organization shares “common religious bonds and convictions” with a church:
1) whether the religious institution plays any official role in the governance of the organization; 2) whether the organization receives assistance from the religious institution; and 3) whether a denominational requirement exists for any employee or patient/customer of the organization.
We warned that such a definition of religious organizations could exclude many Catholic institutions, depending on how strictly the courts apply the Fourt Circuit test, and would certainly exclude nondenominational Christian schools, colleges, charities and other organizations that are not affiliated with a recognized “church.”
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Nevertheless, CHA is at it again. Today’s letter to HHS states:
We reiterate our suggestion contained in our September 22nd letter that the concepts contained in Section 414(e) be used instead to develop a broader and more appropriate religious employer exemption to the contraceptive mandate. Under those principles, an organization would be covered by the exemption if it “shares common religious bonds and convictions with a church.”
Never mind that the U.S. Conference of Catholic Bishops clearly rejected the 414(e) language in its own letter to HHS last September:
…[S]uch an exemption would be inadequate, because it would fail to protect many stakeholders with a moral or religious objection to contraceptives or sterilization, including individuals, insurers, and even many religiously affiliated organizations.
For further explanation, today we asked religious liberty expert Matt Bowman of the Alliance Defense Fund what is so dangerous about the Section 414(e) language?
In the courts, “bonds and convictions” involve asking “(1) whether the religious institution plays an official role in the governance of the organization, (2) whether the organization receives assistance from the religious institution, and (3) whether a denominational requirement exists for any employee or patient/customer of the organization.” See, e.g., Lown v. Cont’l Cas. Co., 238 F.3d 543, 547 (4th Cir. 2001). There are lots of religious and probably even Catholic colleges that would share convictions, but not bonds, with a church. And that’s not to mention other kinds of religious non-profits, much less any religious stakeholder.
A “religious employer” definition limited to only entities with “bonds and convictions” of a church is actually smaller in significant ways than the “accommodation” and “safe harbor” proposed by the Obama administration itself, which only specify the kind of organization that qualifies by whether it is a non-profit with religious beliefs. Granted, their “accommodation” doesn’t actually accommodate in how it treats those organizations. But the standard for who is and who isn’t such an organization includes organizations even if they don’t share “bonds and convictions” of a church.
Truly it’s exciting news that CHA finally is opposing President Obama’s hairbrained “accommodation” that would make things even worse for the Catholic Church. Kudos for that.
But CHA’s own solution could worsen matters beyond the President’s worsened plan. One has to wonder why the CHA would continue to press for a solution that might protect its own institutions but would leave many others out in the cold.
This article originally appeared on Campus Notes, the blog of the Cardinal Newman Society, and is reprinted with permission.