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USCCB Submits Comments on Proposed HHS Rulemaking, Urges Re-Opening of Final Rule Defining Mandate, Exemption

Future 'accommodation' excludes many, cannot meet incompatible goals Outstanding issues should be resolved 'in favor of more, not less, religious freedom'

WASHINGTON‹Religious employers and other stakeholders would still have their employee health insurance plans and premiums used for services they find morally objectionable, even under future government accommodations, according to comments submitted by the General Counsel of the U.S.

Conference of Catholic Bishops (USCCB) to the U.S. Department of Health and Human Services (HHS). The May 15 comments outlined the continued objections of USCCB to the HHS "preventive services" mandate and urged the administration to resolve these issues "in favor of more, not less, religious freedom."


"We believe that this mandate is unjust and unlawful ­ it is bad health policy, and because it entails an element of government coercion against conscience, it creates a religious freedom problem," wrote Anthony Picarello, USCCB associate general secretary and general counsel, and Michael Moses, associate general counsel. "These moral and legal problems are compounded by an extremely narrow exemption that intrusively and unlawfully carves up the religious community into those that are deemed 'religious enough' for an exemption, and those that are not."


The comments were submitted in response to an HHS Advance Notice of Proposed Rulemaking (ANPRM) on preventive services, which expressed the administration's intention to propose additional regulations in order to establish alternative ways of ensuring contraceptive coverage for employees enrolled in health plans of religious organizations not exempted from the HHS mandate while still "accommodating" such organizations.


The USCCB comments noted that such an accommodation would only apply to some religious organizations and that it "would still leave their premiums or plans (or both) as the source or conduit for the objectionable 'services.'

But the use of premiums and plans for that purpose is precisely what is morally objectionable, and having an insurer or third party administer the payments does not overcome the moral objection." The comments concluded that, "under the terms set out in the ANPRM, the 'accommodation' cannot provide effective relief even for those few stakeholders that qualify for it."


The comments outlined six points:


First, the ANPRM does not change the fact that contraceptive services are included in the list of mandated preventive services. This has remained unchanged from an earlier regulation announced in August 2011.


Second, the ANPRM does not change the administration's criteria for defining "religious employers" exempted from the mandate, an exemption that USCCB calls "unprecedented in federal law, improperly narrow, and unlawful." These criteria include that employers primarily hire and serve only members of their own religion.

Third, many stakeholders in the health insurance process‹religious and secular insurers, religious and secular for-profit employers, individual policy-holders, and others‹with a conscientious objection to the mandate are completely ineligible for the exemption. The ANPRM does not acknowledge or address this problem, and as a result, those stakeholders "will be required in the next few months either to drop out of the health insurance marketplace, potentially triggering crippling penalties, or to provide coverage that violates their deeply-held convictions."


Fourth, while the administration has invited public comment on some further "accommodation" for certain non-exempt religious organizations, secular stakeholders will receive no such accommodation. "We believe that the contraceptive mandate violates the religious and conscience rights of these stakeholders as well and is unlawful."

Fifth, regardless of the definition of "religious organization," the central problem remains, that "conscientiously-objecting non-exempt religious organizations will still be required to provide plans that serve as a conduit for contraceptives and sterilization procedures to their own employees, and their premiums will help pay for those items." The administration has invited comment on different approaches for how to deal with a self-insured employer, but "none of them will solve the problems that the mandate creates for non-exempt religious organizations with a conscientious objection to contraceptive coverage."


Sixth, the ANPRM raises new questions such as whether employers must be independently exempt for their employees to participate in an exempt plan, whether religious objection to some, but not all, contraceptives should be accommodated and whether a past practice of mistakenly or unknowingly covering contraceptives should disqualify one from accommodation.


"In each case, we urge resolution of these questions in favor of more, not less, religious freedom," Picarello and Moses wrote.

The full text of the comments is available online:


Franciscan University drops health insurance over HHS mandate

Steubenville, Ohio, May 16, 2012 / 12:01 am (CNA).- Rather than compromise its Catholic values by complying with the federal contraception mandate, Franciscan University has decided to drop its student health insurance.

According to the school's website, Franciscan University of Steubenville chose to cut student health insurance altogether instead of participating "in a plan that requires us to violate the consistent teachings of the Catholic Church on the sacredness of human life."

The small Catholic university in Ohio currently excludes contraception, sterilization and abortifacients from its student and employee health insurance plans. If enacted into law, however, the federal contraception mandate would change that.

The mandate, originally introduced in an Aug. 2011 interim rule, requires health insurance plans to cover contraception – including drugs that cause abortion – and sterilization free of charge.

As part of the "accommodation" for organizations morally opposed to these services, Franciscan University would have until August 2013 to comply.
But with a new coverage year beginning in August, the university decided to drop student health insurance rather than risk violating its "passionately Catholic" identity.
Other colleges and private businesses have brought law suits against the Obama administration, but Franciscan is the first to drop student health insurance completely.
While the student health center will still serve students for just 5 U.S. dollars per visit, students will be responsible to decide how "to provide for accidents or illnesses requiring visits to physicians, health clinics, or the hospital emergency room" during their time as a student.

Franciscan's announcement comes less than one week after Legatus, a national organization of leading Catholic business CEOs and professional leaders, announced its lawsuit against the HHS mandate on the grounds of religious freedom.

Ave Maria University, EWTN, Catholic Social Services, St. Pius X Catholic School of Nebraska and seven states, are among those who have filed lawsuits against the Obama administration over the contraception mandate.

State of Alabama Joins EWTN Lawsuit Against HHS Mandate
Cites Citizens' Conscience Protections Under State Constitution

 Irondale, AL (EWTN) – The Attorney General of the State of Alabama filed documents today in US District Court in Birmingham, Alabama to join EWTN Global Catholic Network as a plaintiff in its lawsuit against the Obama Administration’s contraception mandate. EWTN filed its lawsuit on February 9, asking the federal courts to overturn the new rules which require most U.S. employers to provide contraception, sterilization and abortion-inducing drugs in their health plans even if it violates their conscience.

“We are grateful to Alabama Attorney General Luther Strange for taking such a strong stand on this issue,” said EWTN President and Chief Executive Officer Michael P. Warsaw. “This suit demonstrates that the Alabama motto, ‘We dare to defend our rights,’ is no mere slogan. The state could simply have chosen to file a brief advising the court of the impact of the case on its citizens. Instead, it is intervening in the suit as a co-plaintiff with EWTN. The Attorney General of Alabama is saying, in effect, that this unjust, unconstitutional mandate hurts not only EWTN, but the entire community.”

According to the state’s motion to intervene, filed March 22, Alabama law does not mandate that insurers must provide contraception or sterilization coverage or that any employer or person in the state is required to purchase such coverage. The documents note that Alabama citizens enjoy the freedom to contract for an insurance plan or with a religious-affiliated insurer that does not cover these services. In contrast, the federal regulation would mandate the type of health insurance Alabama could offer on its state-run health insurance exchange, and, if allowed to stand, would preempt Alabama law guaranteeing its citizens’ right of conscience.

In addition, the state asserts the regulation would force conscientious objectors to opt-out of their private health plans having the unfortunate result of increasing the number of people requiring healthcare from Medicaid and other state-supported programs.

The Attorney General also notes that he has statutory responsibilities to ensure that Alabama charitable institutions adhere to their purposes and bylaws. The federal regulation would take such control away from the state by interfering with the mission of religious not-for-profits like EWTN.

Warsaw says this last point is particularly important. “When the federal government uses its power to coerce a faith-based organization to act contrary to its deeply held values, it destroys that organization’s capacity to fulfill its mission. Ultimately, as is the case with the HHS mandate, if that organization is unwilling to compromise its beliefs, it is destroyed by fines and crushing government penalties; it ceases to exist. In joining EWTN’s lawsuit, Attorney General Strange shows that he understands this is unacceptable. I am very grateful that he has chosen to use the state’s power to intervene for the common good.”

In commenting on the state’s action, Attorney General Luther Strange stated, “The freedom of religion, and to believe as one sees fit, is our ‘first freedom’ under the United States Constitution. The people of Alabama have recognized the importance of this freedom and have enshrined it in their Constitution as well. Alabama law does not allow anyone to be forced to offer a product that is against his or her religious beliefs or conscience. “The issue is simple: Either Alabamians and Americans around the country will be allowed to exercise their religious freedom to say ‘no’ to something they disagree with, or they won’t. We hope the Obama Administration will listen, and adopt a position that supports our first freedom rather than undermines it.”EWTN Global Catholic Network, in its 30th year, is available in over 200 million television households in more than 140 countries and territories. With its direct broadcast satellite television and radio services, AM & FM radio networks, worldwide short-wave radio station, Internet website, electronic and print news services, and publishing arm, EWTN is the largest religious media network in the world. Editors: To view the complaint, please go to