Religious Liberty: No Exceptions!

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:

  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.

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.

Patrick J. Reilly


Patrick J. Reilly is founder and president of the Cardinal Newman Society, a national organization to advocate and support the renewal of genuine Catholic higher education.

  • John Hinshaw

    It is essential, at this time, that our Bishops make a stand for our fellow believers even if the Catholic Church gets its “conscience protections”. For too long we have been satisfied with these “protections” while the liberty of our fellow citizens have been eroded. Separation of Church and State is meant to restrict government from dictating what to believe. Religious liberty for ALL !

  • Tony Esolen

    It is important to stress, also, that neither contraception nor abortion is medical. The problem with the couple who don’t want to have children is not that their bodies aren’t working properly, but that they are.

    The Left wishes to beat the Catholic Church into submission, along with every culture the world over. The Sexual Revolution is their god.

  • joe

    We believe life begins at conception. Jews believe life begins at the first breath. Everybody else falls somewhere in between. I am not part of the Jewish faith and therefor do not feel bound by or obligated to follow their rules or spend my federal dollars on their charities that do not meet federal guidelines set up to provide for the common good of our very diverse society. We are a nation of laws informed by the pinciples, values and traditions of many faiths. Having said this I think it is hypocritical to ask people who do not share my Catholic beliefs to follow my rules and pay for programs that violate their principles,values and traditions.

  • Freedom of Religion is endowed by our Creator. All unalienable rights are endowed by our Creator. The government does not give Freedom, or Life, or Liberty or the pursuit of Happiness. Government is constituted by the sovereign personhood of innocent human beings from the first moment of their existence, created by our Creator, for the purposes (inscribed in the Preamble of the U. S. Constitution) of defending freedom…” to secure the blessing of Liberty to our selves and our posterity” … all future generations. Freedom comes from God, without addiction to LUST, (homosexual behavior, contraception, rape, sex abuse)and without persons being told by “law” to honor LUST as LOVE. GREED, (cheating, stealing, illegaly taking more than what one needs or what is not their own property). PRIDE (human sacrifice of abortion, lying and perjury, tyranny).Government does not create life or freedom or unalienable rights. Government, through the will of the people, is constitued to reverence life, respect persons, and bring peace and Justice.

  • God is existence. Human existence is the criterion for the objective ordering of human rights. When an atheist says: “I AM an atheist”, the atheist uses God’s name “I AM” in vain and contradicts himself. Human existence commences when two become one and God creates an immortal soul for the newly begotten person, a new DNA. God gives the new human being his name “I AM”

  • There is no “exemption”. One is either freeman or slave. One is either a virgin or one is not a virgin. One is either a sovereign or one is not a sovereign. An “exemption” is like being a little bit pregnant. One is pregnant or one is not pregnant. Changes in the Constitution must be ratified by two-thirds of the states. Congress makes law and the freedom of conscience, the First Amendment “or prohibit the FREE exercise thereof” was never changed or expunged after having been ratified by two-thirds of the states in 1788.

  • Briana

    Mr. Esolen,

    I agree with you entirely. Earlier today I had a discussion with a man who is pro-choice; and even though I made no reference to my Catholic faith or any religious traditions at all, he still said that everyone in the pro-life crowd is a “religious fanatic,” and that any form of religious belief is stupid.