Protect Our Religious Freedom
The First Amendment of the U.S. Constitution reads as follows:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances."
The first 16 words safeguard freedom of religion in America. But recent actions of the federal government are violating that protection.
The HHS Mandate
As part of the new federal health care reform law passed in Spring 2010, the U.S. Department of Health and Human Services has ruled that almost all employers must offer health insurance coverage that pays for “preventive” services such as sterilization, contraceptives and abortion-inducing drugs.
This final rule issued in January 2012 includes a religious exemption so narrow that most religiously affiliated organizations will not qualify. The four-pronged exemption states that an organization qualifies if it 1. has the inculcation or teaching of religious values as its purpose; 2. primarily employs persons who share its religious tenets; 3. primarily serves persons who share its religious tenets; and 4. is a nonprofit organization under specific sections of the Internal Revenue Code.
Despite an onslaught of pleas to broaden the exemption so that Catholic and other faith-based organizations will not be forced to violate their conscience in offering such health coverage, HHS Secretary Kathleen Sebelius and President Barack Obama refused to do so. Instead, gave religiously affiliated organizations – such as Catholic hospitals, health care centers, social service providers, schools, colleges and universities – until Aug. 1, 2013 to comply with the rule.
"Accommodation" Falls Short of Preserving Religious Freedom
Obama in February 2012 announced an “accommodation” that would place the responsibility of contacting employees about contraceptive coverage – and payment for those services – on the insurance company. But many Catholic hospitals and universities are self-insured, meaning they essentially act as the insurer.
This "accommodation" also has yet to be put in writing. The original mandate was finalized in February "without change," meaning it's the current law of the land.
The lack of an adequate conscience exemption is a slap in the face to common fairness and decency. It strikes at the mission of Catholic organizations to serve the poor and care for the sick. But forcing Catholics and members of other faiths to violate their conscience is a breathtaking attack on the religious freedom protections guaranteed by the First Amendment.
HHS mandate changes appear to ease religious freedom assault; U.S. bishops studying modifications
The federal government on Feb. 1, 2013, announced changes to the Health and Human Services mandate that appear to recognize religious freedom concerns.
However, the U.S. Conference of Catholic Bishops (USCCB) issued a statement in a press release, noting the nearly 80 pages of proposed regulations needed further study.
“Today, the Administration issued proposed regulations regarding the HHS mandate," said Cardinal Timothy Dolan of New York, who serves as president of the USCCB. "We welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later.”
The original HHS mandate calls for all employers to offer insurance coverage of abortion-inducing drugs, contraceptives and sterilizations. This final rule issued in January 2012 includes a religious exemption so narrow that most religiously affiliated organizations would not qualify. The four-pronged exemption states that an organization qualifies if it 1. has the inculcation or teaching of religious values as its purpose; 2. primarily employs persons who share its religious tenets; 3. primarily serves persons who share its religious tenets; and 4. is a nonprofit organization under specific sections of the Internal Revenue Code.
The changes announced today in a press release and fact sheet eliminate the first three criteria, thereby apparently exempting Catholic dioceses, hospitals, schools, universities, colleges, Charities, and social service programs.
The modifications also state that employees of the exempt religious organizations would be offered contraceptive coverage through a third party at no cost to the employee or the organizations. An eligible organization — whether it is group insured or self-insured (serves as the insurer) — "does not have to contract, arrange, pay or refer for contraceptive coverage."
Most Catholic institutions are self-insured.
For-profit entities that refuse to offer contraceptive coverage because of their religious beliefs are not included in these changes. Therefore, businesses such as Hobby Lobby — which is suing the government over the HHS mandate over First Amendment protections — will get no relief under these proposed changes.
The proposed regulations were filed this morning with the Office of the Federal Register. Public comments on the proposal will be accepted by the federal government through April 8, 2013.
U.S. bishops say HHS mandate changes fall short, welcome working with feds on religious freedom concerns
U.S. bishops on Feb. 7, 2013, responded to changes proposed a week earlier to the federal Health and Human Services mandate, saying the "accommodation" falls short of solving religious freedom concerns but stressed they look forward to working with the federal government on a solution.
The U.S. Conference of Catholic Bishops (USCCB) issued a press release containing a statement by President Cardinal Timothy Dolan of New York that outlined three areas of concern to the regulations proposed on Feb. 1.
Dolan said that while the proposal appears to broaden the religious exemption from the original mandate requiring insurance coverage of abortion-inducing drugs, contraceptives and sterilizations, it does not fully recognize that Catholic hospitals, schools, universities, colleges, Charities and social service organizations are an integral element of the Catholic Church.
"It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities. HHS offers what it calls an 'accommodation,' rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches," Dolan said. "And finally, it seems to take away something that we had previously—the ability of an exempt employer (such as a diocese) to extend its coverage to the employees of a ministry outside the exemption."
Dolan also stated the proposal's requirement that religious organizations offer separate insurance coverage of the morally objectionable services — albeit through a third-party administrator — needed further clarification.
"…It is still unclear how directly these separate policies would be funded by objecting ministries, and what precise role those ministries would have in arranging for these separate policies," Dolan said.
Dolan also noted the regulations do nothing to protect the conscience rights of for-profit businesses, turning them into a "third-class."
"In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath," Dolan said. "We cannot now abandon them to be forced to violate their morally well-informed consciences."
However, Dolan stressed the U.S. bishops welcome the opportunity to work with the federal administration by submitting comments on the proposal during the public comment period through April 8, 2013.
"Throughout the past year, we have been assured by the Administration that we will not have to refer, pay for, or negotiate for the mandated coverage," Dolan said. "We remain eager for the Administration to fulfill that pledge and to find acceptable solutions—we will affirm any genuine progress that is made, and we will redouble our efforts to overcome obstacles or setbacks."
Federal government issues final rules, offers 5-month extension to religious groups
The federal Department of Health and Human Services on June 28, 2013, finalized the revised rules issued in February, but gave religious employers an extra five months to implement the mandate, with the deadline moved from Aug. 1 to Jan. 1, 2014.
A week later on July 3, 2014, then-USCCB-President Cardinal Timothy Dolan of New York issued a statement, noting the final rules do not eliminate "the need to continue defending our rights in Congress and the courts."
Dolan notes the final rules do not solve concerns regarding the definition of a "religious employer" who therefore qualifies for an exemption, or address problems with the "accommodation" for employers deemed not "religious enough" for the exemption. The rules also lack an exemption or "accommodation" for individuals and for-profit businesses.
"We are concerned as pastors with the freedom of the Church as a whole — not just for the full range of its institutional forms, but also for the faithful in their daily lives — to carry out the mission and ministry of Jesus Christ," Dolan wrote.
CCI, U.S. Bishops fight back
The United States Conference of Catholic Bishops (USCCB) has vowed to fight this mandate that assaults the founding principles of our country. USCCB President Cardinal Dolan of New York issued a video on the mandate. Like their colleagues across the nation, Illinois’ six bishops issued letters to parishioners about the unfair rule to be read at Mass.
Dozens of Catholic dioceses and organizations have filed suit against the federal government, questioning the blatant unconstitutionality of the HHS mandate. Our U.S. bishops set a aside a "Fortnight for Freedom" during the summer of 2012 to highlight the importance of religious liberty, an observance that has continued each summer since.
Our Illinois bishops and the Catholic Conference of Illinois have been vigilant on this issue from the start. CCI wrote members of Illinois’ congressional delegation when the rule was under consideration, urging them to support the Respect for Rights of Conscience Act (HR 1179 and S 1467), which allows for a conscience clause in the implementation of the federal health care reform law. Our bishops wrote Sebelius, urging her to broaden the religious exemption.
CCI has also alerted the media to this federal overstep of authority by sending a letter to the editor to media outlets throughout the state.
We also produced a 30-second radio spot that played on stations across the state June 21 – July 4, 2012, for the first "Fortnight for Freedom."
HHS Mandate in the Courts
Several nonprofit and for-profit entities have sued the federal government over the HHS mandate, as outlined by the Becket Fund for Religious Liberty. Just hours before the HHS mandate was to be implemented for religious organizations, the U.S. Supreme Court issued an injunction on Dec. 31, 2013, to the Little Sisters of the Poor, allowing the Denver-based order of nuns who care for the elderly a reprieve while their case makes its way through the court system.
Lawyers for Hobby Lobby on March 25, 2014, argued before the U.S. Supreme Court that the HHS mandate violates the federal Religious Freedom Restoration Act (RFRA), which states that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In order to win this issue, the government must prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
Hobby Lobby lawyers noted that company owners demonstrated deeply held religious beliefs against four of the abortion-inducing drugs/devices covered by the HHS mandate, and that not complying with the mandate would cost the company nearly $475 million annually in fines.
The U.S. Supreme Court on June 30, 2014, issued a 5-4 ruling stating that the HHS mandate violated RFRA rights for such closely held corporations as Hobby Lobby and Conestoga Wood Specialties because the rule is not the least restrictive means of furthering the government's interest of providing free contraceptives, abortion-inducing drugs or sterilizations. The majority opinion repeatedly noted the government could have made available to for-profit entities the "accommodation" given to religious entities. The high court also ruled that its decision applied only to the HHS mandate and only to closely held corporations, could not be used to get out of other health insurance mandates, and could not be used as discrimination veiled as religious objections.
CCI issued this statement on the Supreme Court's decision.
The case of the Little Sisters of the Poor, representing religious nonprofits that believe that signing the form required by the "accommodation" makes them complicit in providing the objectionable products and services under the HHS mandate, received a blow on July 14, 2015. The U.S. Court of Appeals for the 10th Circuit in Denver ruled against the nuns, saying the federal government had made opting out of the mandate an easy task.
"The departments have made opting out of the mandate at least as easy as obtaining a parade permit, filing a simple tax form, or registering to vote — in other words, a routine, brief administrative task,” wrote Judge Scott Matheson Jr.
The Little Sisters of the Poor appealed their case to the U.S. Supreme Court, which on Nov. 6, 2015 agreed to hear the case, along with those of other select, faith-based nonprofits. The hihg court will hear oral arguments in March 2016.
U.S. bishops give thumbs-down to revised HHS mandate accommodation
U.S. bishops on Aug. 22, 2014, rejected a revised accommodation to the federal Health and Human Services mandate requiring employers to offer insurance coverage of abortion-inducing drugs, contraceptives and sterilizations.
Agency officials announced that religious nonprofit employers that do not qualify for the mandate's narrow religious exemption — such as Catholic hospitals, colleges, universities, Catholic charities, and child-welfare agencies — may notify HHS in writing of their objections. The agency will then notify the employer's insurance company, which will then reach out to the employees to provide them with no-cost coverage of the objectionable services. If the employer is self-insured, the federal Department of Labor will notify the employer's third-party administrator, which will then get in touch with employees.
The revised accommodation is effective immediately, but is open to public comment and has not yet been deemed final. The previous version of the accommodation required religiously affiliated nonprofit employers to fill out and sign a form documenting their objection to the HHS mandate and submit it to their heath insurance company or third-party administrator, thereby indirectly authorizing coverage of the objectionable services.
Archbishop Joseph E. Kurtz of Louisville, who serves as president of the U.S. Conference of Catholic Bishops (USCCB), said the revised accommodation doesn't go far enough.
“On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the 'religious employer' exemption to encompass all employers with sincerely held religious objections to the mandate," Kurtz wrote in a statement. "Instead, the regulations would only modify the 'accommodation,' under which the mandate still applies and still requires provision of the objectionable coverage."
An organization qualifies for the religious employer exemption if it 1. has the inculcation or teaching of religious values as its purpose; 2. primarily employs persons who share its religious tenets; 3. primarily serves persons who share its religious tenets; and 4. is a nonprofit organization under specific sections of the Internal Revenue Code.
Health and Human Services today also asked for comments on how for-profit, closely held corporations that object to the HHS mandate on religious grounds could use the accommodation provided to nonprofit religious employers — nearly two months after the U.S Supreme Court ruled in the Hobby Lobby case that such companies are exempt from the mandate.
The high court said the HHS mandate violated the Religious Freedom Restoration Act, which states that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In order to win this issue, the government must prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The court noted the mandate was not the "least restrictive means" of furthering the government's interest of providing free contraceptives, abortion-inducing drugs or sterilizations. It also repeatedly noted the government could have granted the accommodation to for-profit corporations with religious objections.
Kurtz said that option only erodes religious freedom.
"By proposing to extend the 'accommodation' to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom," he stated.
Kurtz stated the USCCB would further study today's regulations and "provide more detailed comments at a later date."
U.S. bishops submit comments on revised HHS mandate accommodation
The U.S. Conference of Catholic Bishops on Oct. 8, 2014, submitted comments on the revised HHS mandate accommodation issued on Aug. 22, noting the interim final rules do not change the mandate itself, or its extremely narrow exemption offered to churches but not service and other religious organizations.
The U.S. bishops had initially given the revised HHS mandate accommodation a thumbs down, but took the opportunity to submit formal comments crafted by USCCB general counsel Anthony Picarello and associate general counsel Michael Moses.
Picarello and Moses wrote “the mandate continues to substantially burden the religious liberty of stakeholders with religious objections to the mandated coverage. Because it does not further a compelling government interest by the means least restrictive of religious exercise, the mandate continues to violate the Religious Freedom Restoration Act.”
They also noted that “religious organizations that fall on the non-exempt side of the religious gerrymander include those which contribute most visibly to the common good through the provision of health, educational, and social services."
Picarello and Moses further noted the mandate still requires religious-based employers to provide the objectionable services, albeit through a third party, by writing a letter to Health and Human Services stating their objection.
The federal government on Aug. 22 also invited comments on proposed rules issued on the heels of the Hobby Lobby ruling from the U.S. Supreme Court on how for-profit, closely held corporations that object to the HHS mandate on religious grounds could use the accommodation provided to nonprofit religious employers.
Picarello and Moses also submitted comments on those proposed rules, noting they actually “make the current situation worse for closely-held for-profit organizations with religious objections to contraceptive coverage,” as such organizations are currently exempt under RFRA, as the U.S. Supreme Court held.
Those comments may be found here.
Administration issues final rules for HHS mandate
The federal Department of Health and Human Services (HHS), along with the Departments of Labor and the Treasury, on July 10, 2015, issued final rules for the mandate requiring practically all employers to offer coverage of contraceptives, sterilizations and abortion-inducing drugs. These rules essentially formalize the interim final rules put forth by the federal government in August 2014, offering no relief to religious nonprofits. Read the press release issued by HHS.
Instead, these entities may opt out of the mandate by writing of their objection to HHS officials, who will then notify the insurer or third-party administrator of the objection so they can handle coverage of the mandated products or services, at no cost to the entity. Religious nonprofits not exempt from the mandate — such as hospitals, schools, colleges, universities, child-welfare agencies and Catholic Charities — believe that allowing their insurer or a third party administrator to handle coverage still makes them complicit in the objectionable acts.
The final rules also look to the U.S. Supreme Court's 2014 ruling in the Hobby Lobby case to establish rules allowing for-profit, closely-held companies to opt out of the mandated coverage because of religious objections. Such companies will simply follow the above-stated accommodation for religious nonprofits — they will write to HHS officials about their objection, and HHS will notify the insurance company or third-party administrator to handle the coverage, at no cost to the company.
What You Can Do: Sign Up For I-CAN!
Sign up for the Illinois Catholic Advocacy Network (I-CAN).
Our bishops have authorized the creation of I-CAN as a way for lay Catholics to get educated and informed on issues that affect the Church and her mission. Parishioners who sign up for I-CAN will receive occasional emails from CCI on state and federal issues important to the Church.
- You can sign up for I-CAN here.
- Use your phone to stay updated on religious freedom. Text the word Freedom to 377377 or the word Libertad to 377377 to receive religious liberty updates from the USCCB.
- Educate yourself on this important issue by reading the materials provided by the USCCB, as well as this statement on religious freedom. It cites recent governmental curbs such as the HHS mandate and the loss of state foster care and adoption contracts from Illinois Catholic Charities programs. "As Catholic bishops and American citizens, we address an urgent summons to our fellow Catholics and fellow Americans to be on guard," the bishops write, "for religious liberty is under attack, both at home and abroad."