The Obama administration’s decision requiring church-affiliated employers to cover birth control was bound to cause an uproar among Roman Catholics and members of other faiths, no matter their beliefs on contraception.
The regulation, finalized a week ago, raises a complex and sensitive legal question: Which institutions qualify as religious and can be exempt from the mandate?
For a church, mosque or synagogue, the answer is mostly straightforward. But for the massive network of religious-run social service agencies there is no simple solution. Federal law lays out several criteria for the government to determine which are religious. But in the case of the contraception mandate, critics say Health and Human Services Secretary Kathleen Sebelius chose the narrowest ones. Religious groups that oppose the regulation say it forces people of faith to choose between upholding church doctrine and serving the broader society.
“It’s not about preventing women from buying anything themselves, but telling the church what it has to buy, and the potential for that to go further,” said Sister Carol Keehan, president of the Catholic Health Association, Washington, which represents about 600 hospitals.
Keehan’s support for the passage of the Patient Protection and Affordable Care Act of 2010 (PPACA) was critical in the face of intense opposition by the U.S. bishops. She now says the narrowness of the religious exemption in the birth control mandate “has jolted us.” She pledged to use a one-year grace period the administration has provided to “pursue a correction.”
The U.S. Department of Health and Human Services (HHS) adopted the rule in an effort to improve health care for women.
PPACA requires health plans to cover a package of government-endorsed preventive care services without imposing deductibles, co-payments or other cost-sharing requirement services on the patient.
Last year, an advisory panel from the Institute of Medicine, Washington, which advises the federal government, recommended including birth control on the list of covered preventive care services.
Birth control promotes maternal and child health by allowing women to space their pregnancies, the panel said.
The HHS contraception regulation does include a religious exemption.
Under that provision, an employer generally will be considered religious if its main purpose is spreading religious beliefs, and if it largely employs and serves people of the same faith. That means a Catholic parish likely would qualify for a religious exemption; a large church-run soup kitchen probably would not.
Employers that fail to provide health insurance coverage under the federal law could be fined $2,000 per employee per year. The bishops’ domestic anti-poverty agency, Catholic Charities, says it employs 70,000 people nationwide. The fine for the University of Notre Dame, the most prominent Catholic school in the country, could be in the millions of dollars.
HHS says employers can appeal a decision on whether they qualify for an exemption. But Hannah Smith, senior counsel for the Becket Fund for Religious Liberty, Washington, said, “The mandate vests too much unbridled discretion in the hands of government bureaucrats.”
Mandates for birth-control coverage are not entirely new for religious groups. Twenty-eight states already require contraceptive coverage in prescription drug plans. Of those states, 17 offer a range of religious exemptions, while two others provide opt-outs of other kinds. However, opponents of the HHS regulation say there is no state mandate as broad as the new federal rule combined with a religious exemption that is so narrow.