BY NANCY FRAZIER OʼBRIEN A US GOVERNMENT mandate that all health insurance plans must cover free contraceptives and sterilisation “represents an unprecedented attack on religious liberty” and creates “serious moral problems” that require it to be rescinded, lawyers representing America’s Catholic bishops have said.
In a 35-page comment submitted to the Department of Health and Human Services (HHS), Anthony Picarello Jr and Michael Moses, general counsel and associate general counsel respectively for the US Conference of Catholic Bish ops, called the HHS mandate “unprecedented in federal law and more radical than any state contraceptive mandate enacted to date”.
“Only rescission will eliminate all of the serious moral problems the mandate creates,” they said. “Only rescission will correct HHS’s legally flawed interpretation of the term ‘preventive services’.” The mandate and a proposed religious exemption to it were announced last month by health secretary Kathleen Sebelius and are subject to a 60-day comment period.
The bishops’ lawyers also took issue with the religious exemption proposed by HHS, saying it “represents an unprecedented intrusion by the federal government into the precincts of religion that, if unchecked here, will support ever more expansive and corrosive intrusions in the future”.
The health department has proposed that only religious employers meeting four criteria would be exempt from providing contraceptives and female sterilisation through their health plans. Those requirements are that the organisation “(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) prima rily serves persons who share its religious tenets; and (4) is a nonprofit organisation” under specific sections of the Internal Revenue Code.
“Under such inexplicably narrow criteria – criteria bearing no reasonable relation to any legitimate (let alone compelling) government purpose – even the ministry of Jesus and the early Christian Church would not qualify as ‘religious’ because they did not confine their ministry to their co-religionists or engage only in a preaching ministry,” the statement said.
“The government has no business engaging in religious gerry manders, whereby some churches are ‘in’and others are ‘out’for regulatory purposes based on who their teaching calls them to serve, how they constitute their workforce or whether they engage in ‘hard-nosed proselytising’”, the lawyers added.
They said it is “blatantly unconstitutional” to treat religious denominations or organisations differently because some are “so to speak, insular in their workplace and ministry” and others “have a missionary outlook”.
“Church agencies with the temerity [in the government’s view] to hire and serve persons other than their own members are penalised by the HHS exemption or, alternatively, forced to fire non-members and withdraw from or limit public service,” they said. “Such a forced choice is offensive, discriminatory and unconstitutional.” The bishops’conference also said in its comments that the HHS contraceptive mandate violated the Weldon amendment, certain provisions of the Patient Protection and Affordable Care Act and the Obama administration’s public statements about coverage of abortion, because the contraceptives that must be covered include ella, a morning-after pill that can cause abortions. It also “targets Catholics for special disfavour ‘sub silentio’and therefore violates both the Free Exercise and Establishment Clauses of the First Amendment”, the comments said.
“Moral opposition to all artificial contraception and sterilisation is a minority and unpopular belief, and its virtually exclusive association with the Catholic Church is no secret,” Mr Picarello and Mr Moses said. “Thus, although the mandate does not expressly target Catholicism, it does so implicitly by imposing burdens on conscience that are well known to fall almost entirely on observant Catholics.”