For months, the Catholic bishops and major Evangelical and Jewish groups have urged Health and Human Services Secretary Kathleen Sebelius to exempt conscientious objectors from mandatory health insurance coverage for sterilization and contraception, including abortifacients. The current regulations exempt churches and church-controlled organizations that hire and serve primarily members of the same faith, but many religious colleges, schools, hospitals, charities and other organizations would likely not qualify.
Now there is growing concern that Sebelius might in fact expand the exemption as recommended in public letters from The University of Notre Dame and the Catholic Health Association, but still leaving many religious apostolates in the cold.
The proposal is that HHS craft a new religious exemption, borrowing language from Section 414(e) of the Internal Revenue Service Code, which exempts church-related pension plans from provisions of the Employee Retirement Income Security Act (ERISA). Section 414(e) releases from federal regulation any church, church-controlled entity or other organization that “shares common religious bonds and convictions with the church.”
According to a 2001 ruling from the U.S. Court of Appeals for the Fourth Circuit, showing “common bonds and convictions with a church” is more difficult than it sounds. Criteria include:
- Whether the religious institution plays any official role in the governance of the organization;
- Whether the organization receives assistance from the religious institution; and
- Whether a denominational requirement exists for any employee or patient/customer of the organization.
This three-pronged test may not be much better than the current HHS exemption. For instance, although many Catholic colleges and universities retain some relationship with their founding religious orders, few have religious tests for employee hiring, and none require students to be Catholic. It would all depend on the discretion of HHS and the federal courts whether institutions qualify for exemption.
Even with regard to employee pension plans, 414(e) offers no clear track record of exemption for Catholic organizations that are not legally controlled by the Church. Notre Dame itself has never sought the 414(e) exemption, and The Cardinal Newman Society’s inquiries to several Catholic colleges found not a single one that claimed it with regard to employee pension plans.
Under the proposed compromise, nondenominational Christian institutions are certain to be disqualified for exemption because they lack formal ties to an established church. The irony is that many Evangelical colleges, schools and other organizations have a much stronger religious identity than many of our Catholic institutions—of which Notre Dame and CHA are notable examples.
In a September letter to HHS, the U.S. Conference of Catholic Bishops warned against borrowing language from Section 414(e): “…[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.”
So why would CHA and Notre Dame promote a compromise that could allow violations of the religious beliefs of many religious organizations, as well as individuals who have moral objections to sterilization, contraception and abortion? It could be that they misunderstood the 414(e) exemption, which at first glance seems much broader than how the courts have interpreted it. But in making such a specific proposal to HHS, it would have been reckless to ignore the federal court rulings that determine the application of 414(e)—at least until other courts advance a more sensible reading of the law.
Regardless, any compromise based on 414(e) doesn’t work and ought not be supported by Catholic organizations. A policy that does not protect the religious liberty of all Americans is an erosion of religious liberty.