WASHINGTON, December 21, 2011 (LifeSiteNews.com) – A proposal made by the University of Notre Dame and the Catholic Health Association (CHA) to dodge the Obama administration’s birth control insurance mandate could undermine the religious liberty of many Catholic colleges and universities, says one watchdog of Catholic higher education.
Under the new law, as announced by the Obama administration this summer, virtually all private employers will be required to cover sterilization and all contraception, including abortifacient drugs. The religious exemption currently applies only to organizations that mainly hire and cater to individuals within their own sects, which would exclude most religious colleges, schools, hospitals, charities and other organizations.
In public letters to the Obama Administration, both the Catholic Health Association (CHA) and Fr. John Jenkins of the University of Notre Dame have pointed to Section 414(e) of the IRS Code, which exempts church-related pension plans from the federal Employee Retirement Income Security Act (ERISA). They recommend the language in 414(e) as an improvement over the strict and narrow religious exemption published by HHS.
But in a letter to federal health officials Dec 20, the Cardinal Newman Society said the proposed revision would still leave many faith-based colleges out in the cold, “just like the flawed religious exemption it is intended to replace.”
Under Section 414(e), notes CNS, 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.”
However, under federal court precedent “common religious bonds” has been interpreted to rely on three factors: that the church play an official role in the governance of the organization, that the organization receive assistance from the church, and whether a denominational requirement exists for any of the organization’s employees or customers.
This litmus test, CNS notes, is not one that most Catholic colleges and universities are likely to meet. Some of the most orthodox Catholic colleges are entirely controlled by the laity, they point out, and few impose religious tests when hiring employees or accepting students. The U.S. Conference of Catholic Bishops already argued against the 414(e) option in its September 17th comment to federal health officials, calling it “inadequate.”
Other Christian organizations also face problems with the 414(e) language, because it exempts only religious organizations with denominational affiliations.
“While some of our institutions are affiliated with larger church organizational or denominational structures, many are independent religious organizations,” Dr. Paul Corts, President of the Council for Christian Colleges & Universities, told CNS. “They are religious not because they are associated with a church or denomination but rather because of their legitimate religious beliefs and practices that are openly held out to the public as such—the critical legal characteristics of a religious entity—and yet, would not be recognized as such under [414(e) language].”
The Society’s concerns were repeated in letters to Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops (USCCB), and Bishop William Lori, chairman of the USCCB committee on religious liberty.
In an op-ed Wednesday in The Washington Times, Cardinal Newman Society President Patrick J. Reilly writes that the practical effect of the Notre Dame and CHA proposal “would be to slam the door on most religious organizations while providing political cover to the Obama Administration.” But he also recalls that neither the University of Notre Dame nor CHA “is a stranger to controversy when it comes to President Barack Obama and his support for abortion rights.”
Notre Dame president Rev. John Jenkins honored Obama with an honorary law degree at the school’s commencement ceremony in 2009, drawing condemnations from 80 active U.S. bishops and over 300,000 petitioning U.S. Catholics.
Months later, CHA president Sr. Carol Keehan emerged as a key supporter of Obama’s health care overhaul, earning accolades from the administration for flouting the USCCB’s direct opposition to the abortion-expanding law.
The full Cardinal Newman Society letter to Secretary Sebelius is below.
December 20, 2011
The Honorable Kathleen Sebelius
Secretary of Health and Human Services
United States Department of Health and Human Services
200 Independence Avenue, SW, Room 120F
Washington, DC 20201
Dear Secretary Sebelius:
We are writing with concern about the dangerous implications of a proposal that has been presented to you by the University of Notre Dame and the Catholic Health Association, which could violate the religious liberty of the faithful Catholic colleges and universities that The Cardinal Newman Society promotes to Catholic families.
As you know, many religious organizations have sought the repeal of the Interim Final Rule on Preventive Services published in the Federal Register on August 3, 2011 (76 Fed. Reg. 46621), which mandates health insurance coverage for sterilization and contraceptives, including some that cause abortions. At the least, religious organizations and individuals seek conscience protection to be exempted from this mandate.
The Cardinal Newman Society, which works to help renew and strengthen the Catholic identity of Catholic colleges and universities, is especially concerned about the impact of this mandate on Catholic higher education. As we noted in our September 29th comment to your department, joined by 18 Catholic colleges and universities and the chairman of the U.S. bishops’ committee on Catholic education: “No federal rule has defined being “religious” as narrowly and discriminatorily as the Mandate appears to do, and no regulation has ever so directly proposed to violate plain statutory and constitutional religious freedoms.” Of great concern is the impact on Catholic college health plans for students, which are not currently exempt from the regulation.
The religious exemption in the regulations is inadequate, but so is the replacement proposed by the University of Notre Dame and the Catholic Health Association in their own comments to your department. They propose language similar to Internal Revenue Service Code Section 414(e), which describes organizations exempt from provisions of the Employee Retirement Income Security Act. Embracing 414(e)-like language would mean leaving many Catholic colleges unprotected, just like the flawed religious exemption it is intended to replace.
A religious exemption similar to 414(e) would only marginally expand the current HHS exemption and would undermine religious liberty. Under the 414(e) rule, exemption 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.
The Fourth Circuit set a precedent that has been followed by other federal courts, and it is not a test that most Catholic colleges and universities are likely to meet. Many are unaffiliated with a religious order; indeed, some of the most faithfully Catholic colleges are entirely lay-controlled. Few impose religious tests when hiring employees or accepting students. It is even an open question as to whether Notre Dame would meet the criteria for a 414(e) exemption, which the university has never sought, according to Notre Dame spokesman Dennis Brown.
The U.S. Conference of Catholic Bishops argued against the 414(e) option in its September 17th comment to your department: “…[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.”
While our mission relates to Catholic education, we also support the concerns of religious organizations that are inter-denominational or non-denominational. As explained by Dr. Paul Corts, President of the Council for Christian Colleges & Universities, in a note to The Cardinal Newman Society yesterday: “While some of our institutions… are religious not because they are associated with a church or denomination but rather because of their legitimate religious beliefs and practices that are openly held out to the public as such—the critical legal characteristics of a religious entity—and yet, would not be recognized as such under an exemption requiring conformity with the requirements of IRS Code Section 414(e).”
Secretary Sebelius, the fact is that the 414(e) language would fail to protect the religious liberty of too many religious organizations that object to sterilization, contraception or abortion, including many faithful Catholic colleges and universities. This is unacceptable.
We continue to urge you to repeal the mandate altogether, or at minimum to protect the consciences of all individuals and organizations that oppose sterilization, contraception or abortion because of their religious beliefs.
Patrick J. Reilly
cc: Joshua DuBois, Executive Director, Office of Faith-Based and Neighborhood Enterprises