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The New Caesar, the HHS Accommodation and the Attack on Religious Freedom

By Deacon Keith Fournier
February 6th, 2013
Catholic Online (www.catholic.org)

The new accommodation states that the "free" dispensing of contraceptives, abortificacients and sterilization somehow "furthers the governmental interests in promoting public health and in promoting gender equality". 

WASHINGTON, DC (Catholic Online) - On February 1, 2013, the Obama Administration announced a new modification to its alleged accommodation for religious institutions which object to being compelled to offer contraception, sterilization and abortifacients to their employees - or face the punitive boot of the State.

The original mandate required all employers, including Catholic and other religious employers, to cover sterilization, abortion inducing drugs, and contraception in their health care plans.  The alleged exemption provided for religious employers did not cover hospitals, universities, soup kitchens, outreaches to the poor and many other vital expressions of our Catholic faith and mission.

The purported accommodation which followed the opposition to this horrid Mandate amounted to a shell game which accomplished nothing. When the Mandate was recorded in the Federal Register, nothing had changed. After the uproar did not subside, and facing 44 lawsuits which were filed, the Administration offered the latest accommodation. The actual eight page rule is found within an 80 page document which can be read here

Kathleen Sebelius, the Secretary of Health and Human Services, said in the official Government Press Release, "Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns. We will continue to work with faith-based organizations, women's organizations, insurers and others to achieve these goals."

As usual, Congressman Chris Smith of New Jersey spoke with refreshing candor, "The so-called new policy is the discredited old policy, dressed up to look like something else," Smith said. "The mandate remains a serious violation of religious freedom. Only the most na´ve or gullible would accept this as a change in policy."

"The proposed rule issued today remains a direct, obnoxious, unprecedented government attack on the conscience rights of religious entities and anyone else who for moral reasons cannot and will not pay for abortion inducing drugs-such as ella-or contraception and sterilization procedures in their private insurance plans." The entire statement is here.

Of course, anyone who is genuinely concerned over the blatant violation of the First Amendment guarantee of the fundamental right to religious freedom this matter involves hoped that this new overture was sincere. Some hoped it might actually offer some ground for a resolution.

Understandably, the President of the United States Conference of Catholic Bishops, Cardinal Timothy Dolan, deferred any comment. He expressed hope for resolution and prudently waited while legal counsel reviews the 80 page document.

Our Bishops have a top shelf General Counsel in Anthony R. Picarello Jr.  He is a constitutional lawyer with a demonstrated expertise in Religious Liberty cases. Prior to this assignment, Picarello served as General  Counsel to the Becket Fund for Religious Liberty

The Becket Fund has already weighed in on the purported modification to the proposed accommodation, with skepticism.  One of the many services this excellent public interest law firm provides is a clearinghouse site where you can go and find out about each lawsuit and its current status called Mandate Information.

Another outstanding group doing public interest work is the Alliance Defending Freedom. They offered a quick analysis, the thrust of which is found in the title of their article, Only a Sliver of Religious Organizations Covered by Proposed Exemption to HHS Abortion Pill Mandate. They are correct.

What are we coming to when religious groups need bend the knee to a New Caesar? Part of the reason for the American founding was religious freedom. What kind of verbal nonsense calls abortificacients, and sterilization preventive health care?

The new accommodation states that the "free" dispensing contraceptives, abortificacients and sterilization somehow "furthers the governmental interests in promoting public health and in promoting gender equality". What?

Why are we even accepting the idea that an employer who objects on religious and moral grounds to distributing such items - even if they are offered for "free" by a straw man - must first be structured under Section 501c3 of the Internal Revenue Code - or be recognized by the Federal Government as a church or religious organization?

What about businesses or associations which are not structured as non-profit organizations intentionally but are just as dedicated to the religious and moral principles of their faith? At the time of the drafting of the Bill of Rights there was no such thing as an Internal Revenue Service and no 501 c3 organization status. 

The more one looks into this "accommodation" the more it looks like same-old, same- old. Out of deference and respect, I will await the release from the US Bishops before going any further. However, one of them, Archbishop Charles Chaput, offered some insights in an article entitled   Making Sense Out of Another Ambiguous Compromise in the Catholic Philly which is set forth below.

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Making sense of another ambiguous 'compromise'
Archbishop Charles Chaput

To live well is nothing other than to love God with all one's heart, with all one's soul and with all one's efforts; from this it comes about that love is kept whole and uncorrupted (through temperance).  No misfortune can disturb it (and this is fortitude).  It obeys only [God] (and this is justice), and is careful in discerning things, so as not to be surprised by deceit or trickery (and this is prudence).
- Augustine

The Catechism of the Catholic Church reminds us that prudence is the auriga virtutum, the "charioteer of virtues."  It is "right reason in action," the guide to correctly applying all other virtues.  Rash action, no matter how well intended, violates prudence and usually does more harm than good.  God gave us brains.  He expects us to use them to judiciously pursue the highest moral good for others and for ourselves.

At the same time, the Catechism warns that prudence should never be used as an alibi for "timidity or fear, duplicity or dissimulation."  Real prudence has a spine called fortitude, the virtue we more commonly know as courage.  And courage, in the words of C.S. Lewis, "is not simply one of the virtues, but the form of every virtue at the testing point, which means at the point of highest reality."

Here's why both these virtues are vital in the weeks ahead.  On Friday, February 1, the Obama administration issued for public comment a set of revised regulations governing the HHS "contraceptive mandate."  At first glance, the new rules have struck some people as a modest improvement.  They appear to expand, in a limited way, the kind of religiously-affiliated entities that can claim exemption from providing insurance coverage for contraceptive and abortion-related services under the new Affordable Care Act.

White House apologists and supporters have welcomed the proposal.  The New York Times called it "a good compromise."  Groups like the American Civil Liberties Union and NARAL Prochoice America have praised it.  And at least one Washington Post columnist implausibly called it a victory for America's Catholic bishops.

The scholar Yuval Levin has stressed that the new HHS mandate proposal, "like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience."  In reality, despite the appearance of compromise, "the government has forced a needless and completely avoidable confrontation and has knowingly put many religious believers in an impossible situation."

The trouble is, the new rules are very complex.  And they may actually make things worse.  In the words of Notre Dame Law Professor Gerard Bradley: "Gauging the net effect of the new administration proposal [is] hazardous.  But one can say with confidence the following: (1) religious hospitals are, as before, not exempt 'religious employers'; (2) religious charities are very likely not exempt either, unless they are run out of a church or are very tightly integrated with a church.  So, a parish or even a diocese's Saint Vincent De Paul operations would probably be an exempt 'religious employer,' whereas Catholic Charities would not be; (3) the new proposal may (or may not) make it more likely that parish grade schools are exempt 'religious employers.'  But Catholic high schools are a different matter.  Some might qualify as 'religious employers.'  Most probably will not.

"It is certain that Catholic colleges and universities do not qualify as exempt 'religious employers.' The new proposal includes, however, a revised 'accommodation' for at least some of these institutions, as well as some hospitals and charities.  The proposal refines the administration's earlier efforts to somehow insulate the colleges and universities from immoral complicity in contraception, mainly by shifting - at least nominally - the cost and administration of the immoral services to either the health insurance issuer (think Blue Cross) or to the plan administrator (for self-insured entities, such as Notre Dame).  This proposal adds some additional layering to the earlier attempts to insulate the schools, but nothing of decisive moral significance is included."

The White House has made no concessions to the religious conscience claims of private businesses, and the whole spirit of the "compromise" is minimalist.

As a result, the latest White House "compromise" already has a wave of critics, including respected national religious liberty law firms like the Becket Fund and the Alliance Defending Freedom.  And many are far harsher than Professor Bradley in their analysis.

The scholar Yuval Levin has stressed that the new HHS mandate proposal, "like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience."  In reality, despite the appearance of compromise, "the government has forced a needless and completely avoidable confrontation and has knowingly put many religious believers in an impossible situation."

One of the issues America's bishops now face is how best to respond to an HHS mandate that remains unnecessary, coercive and gravely flawed.  In the weeks ahead the bishops of our country, myself included, will need both prudence and courage - the kind of courage that gives prudence spine and results in right action, whatever the cost.  Please pray that God guides our discussions.

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