Catholic scholars blast ‘aggressive’ US contraceptive mandate

Richard W  Garnett Helen Alvare CNA US Catholic News 8 2 11 Richard W. Garnett / Helen Alvare

A new federal requirement that employers’ health care plans must cover contraceptives is an “aggressive” approach that could hinder or shut down Catholic institutions because of inadequate and “impossibly narrow” religious exemptions, several Catholic commentators have said.

“This will likely drive many important Catholic social service providers to close up shop, inevitably harming the poor communities that they serve,” Notre Dame Law School professor O. Carter Snead told CNA Aug. 2.

He characterized the regulations as a “watershed moment.”

“Being an employee of a Catholic university that takes seriously its Catholic identity, I worry very much about what we’re being asked to do at this point. We’re being directly asked to act contrary to our deeply held religious beliefs,” he added.

“It feels very aggressive to me. It bothers me very much.”

The Department of Health and Human Services announced Aug. 1 that new health care plans must cover contraceptives and sterilizations under regulations for preventive care created in response to the 2010 health care legislation.

The regulations may allow for existing health plans to be “grandfathered” in, but the Department of Health and Human Services did not respond to requests for further information about how the rules will apply to Catholic institutions.

Catholic teaching recognizes contraception use and direct sterilization as sinful.

The Obama administration has released an amendment allowing religious institutions the choice of whether to cover contraceptive services. However, the exemption applies only to non-profit religious employers whose purpose is “the inculcation of religious values.” Exempted employers must primarily employ persons who share their religious tenets and must primarily serve those who share those beliefs.

“The so-called ‘exemptions’ are extremely narrow,” Snead said.

“This category does not cover virtually any Catholic institution that serves or employs non-Catholics.  Accordingly, Catholic universities, Catholic social service agencies, and even perhaps the U.S. Conference of Catholic Bishops will be required to provide contraceptive coverage (including abortifacients like the recently FDA-approved ‘Ella’),” he explained.

Notre Dame Law School professor and associate dean Richard W. Garnett also criticized the exemption. It is not broad enough “because it excludes those religious institutions, employers, and ministries that are engaged actively in the world, providing care, services, and education to a diverse group of people, besides our fellow Catholics,” he told CNA.

Helen Alvare, a law professor at George Mason University who formerly worked with the U.S. bishops’ pro-life office, said the regulations threatened religious freedom and respect for conscience.

“This regulation breaks a long-held, bipartisan understanding about who we are as a nation. We were founded on the basis of freedom of conscience, and that it's an important part of our overall level of freedom, not to mention peaceful coexistence,” she said.

All levels of government have understood the need to protect religious providers who “take up work others fail or refuse to do.”

“Their work is good or superior to other providers. At some level people understand that it is the moral commitments and views (including the deep respect for sex shown by our teaching on contraception) that undergird this,” she told CNA.

Garnett voiced similar concerns.

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“The issue in this debate is not whether or not people should be made to live in accord with the Church's teachings -- of course they shouldn't! -- but whether Catholic institutions should be free to act in accord with those teachings,” he said.

The fact that most people, including many Catholics, do not agree with the Church’s teaching on contraception should be “irrelevant to the question of whether we respect and protect the religious freedom of Catholic institutions to follow the Church’s own teachings on this matter.”

The Health and Human Services (HHS) rule follows a long period of activism from feminist and pro-abortion rights groups.

Alvare said that the rules gave Planned Parenthood “everything they have asked for.”

“Planned Parenthood lobbied for exactly this outcome,” she said.

Snead said the rules’ possible effects on Catholic social services made it appear that President Obama has “chosen the agenda of Planned Parenthood over caring for the poor.”

He noted that the rule was announced in the form of a “final interim rule” which goes into effect before comments are received and evaluated. This avoids the usual course of proposing a rule, seek comments and offer responses, then issue the final rule.

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“HHS chose a more aggressive course here,” he said. “That signals, I think, a strong normative commitment to promoting contraception (including potential abortifacients) that makes it unlikely that HHS will soften its stance.”

Snead encouraged Catholic institutions and individuals to send their comments objecting to the rule’s “impossibly narrow” definition of “religious employer.”

Bill Donohue, president of the Catholic League for Religious and Civil Rights, noted Catholic institutions’ “long and distinguished record” of serving everyone regardless of religious affiliation.

He accused the Obama administration of playing “Catch-22” with religious employers.

“If they are too religious, Catholic social service agencies risk losing federal funds, but if Catholic hospitals are not sufficiently religious, they cannot be exempt from carrying health insurance policies that transgress their religious tenets.

“The Obama administration knows exactly what it is doing, and what it is doing is burning religious institutions at both ends,” he charged in an Aug. 2 statement.

“The situation is even more pernicious than it looks,” he warned, citing President Obama’s past opposition to allowing faith-based programs to hire only their coreligionists.

“Since becoming president, he has authorized his administration to consider this issue on a case-by-case basis, and just recently many of his allies lobbied him to gut the religious liberty provision in hiring altogether,” Donohue said.

Alvare added that the mandate for contraception may not even serve the goal of preventive care.

“There is no data showing that at the level of a social policy, (contraception) has ever done anything but drive up rates of uncommitted sex, non-marital pregnancies, non-marital births, STDs and abortion.

“There is nothing ‘preventive’ about it. The social ills it claims to solve are all exacerbated.”

The rules represent a “further banalization of sex” and the U.S. government’s endorsement of the position that sex without any long-term commitment is “the norm, not the exception.”