USCCB counsel: Bishops will fight HHS mandate

U.S. Catholic bishops will use every legal means necessary – including putting political pressure on Congress and pursuing legal action in the federal courts – to eliminate the government mandate that Catholic entities be forced to provide health insurance coverage for abortion-inducing drugs, contraception and surgical sterilization, the general counsel of the United States Conference of Catholic Bishops (USCCB) told Catholic journalists on a nationwide conference call Feb. 16.

Anthony Picarello, the USCCB general counsel and lead adviser to the bishops on issues of religious liberty, said the unprecedented threat to religious freedom posed by the U.S. Department of Health and Human Services (HHS) mandate has united the bishops in their determination to fight the government action.

“Religious liberties are at stake, and we’re not going to stop until we get it done,” Picarello said on the conference call with 55 members of the Catholic Press Association. “We’re just not. The bishops have no choice. They just have no choice. They are not going to relent on this. They can’t relent. They have no choice.”

Tough sledding

Picarello acknowledged that getting Congress to pass – and President Obama to sign – the Respect for Rights of Conscience Act is a long shot. While the bill, which was sponsored more than a year ago by Rep. Jeff Fortenberry (R-Neb.), might be able to pass in the House of Representatives, it probably would need 60 votes in the Senate to overcome a filibuster.

Even if that were to happen, the bill still would require the president’s signature.

“If the president wants to veto that kind of bill, that’s his decision,” Picarello said. “We hope to urge all politicians who might have some role in the passage of these bills to support them and let them go forward. We need to make sure the word is out that there are problems of the first order here – foundational principles, religious liberties are at stake.”

Picarello said while the bishops supported the concept of health care reform in 2010, they reluctantly were forced to oppose the final version of the law because of “the extent to which the bill allowed for the funding of abortion” and the failure of the law to provide a solid religious exemption.

“Another, less well-attended, concern in the public discussions was the repeatedly stated concern (by the bishops) of the protection of conscience rights,” Picarello said. “(What we) foresaw was those mandates might include things that religious organizations, particularly the Catholic Church and its various ministries and apostolates, would not be able to provide in good conscience as part of the health care coverage that they provide for their employees.”

Would preserve ‘status quo’

The Respect for Rights of Conscience, Picarello said, “doesn’t do anything new but instead preserves the status quo.”

“Sometimes the response has been, ‘Oh, my gosh, if you allow all this freedom to happen, then the system will descend into chaos,’” Picarello said. “But the reality of the situation is that even with that kind of freedom that the law preserves, you have in the United States nine out of 10 employer-sponsored health insurance plans including contraception. There certainly is no shortage of contraception coverage that is sponsored by employers when people are entirely free to either provide it for their employees or not provide it for their employees.”

The bishops’ concerns over the health care law increased when the Institute of Medicine held hearings in 2010 and 2011 to assess what medical procedures and medications would fall under the legal definition of “preventive services,”  Picarello said.

Narrow exemption

In August 2011, the HHS issued its interim final rule, saying “preventive services shall be construed to include all FDA-approved contraceptives, which again included at least a couple of abortifacients, and sterilizations,” Picarello said.

“At the same time, (the rule) included a very narrow exemption for certain religious institutions,” he said, and the bishops determined that while the exemption would cover churches, it would not cover Catholic colleges, schools, charities and hospitals.

More than 200,000 comments were received during the 60-day public feedback period on the new rules. Those comments were  “overwhelmingly in opposition to the mandate,” Picarello said.

President Obama met with then-Archbishop Timothy Dolan last November to discuss Catholic concerns, but that was their last contact until the decision was announced on Jan. 20 that neither the mandate nor the religious exemption would be changed.

“The only thing presented as a concession was for those who fall outside the exemption, there would be a one-year extension of time (before having to comply with the mandate),” Picarello said.

“The words used were ‘to allow for compliance,’ ‘to adapt to the rule,’” Picarello said. “That sort of ambiguity prompted us in our communication with the White House to repeatedly ask whether that would allow for the possibility of some reconsideration or change in the rule. When we asked that specific question, we were given the very specific answer – ‘No.’”

Initial info was sketchy

When President Obama announced on Feb. 10 that he had reached a “compromise” – allowing religious organizations with objections to providing the abortifacient coverage to not have to offer it but instead have the insurer provide free of charge to the employee – Picarello said the information from the White House came in “dribs and drabs,” initially slowing the USCCB response.

When the details became clear later in the day, the USCCB vigorously opposed the modification.

“One of the reasons we don’t accept the characterization that this was an accommodation is that presumably we were among those to be accommodated, and we were never consulted about what would constitute an appropriate accommodation,” Picarello said. “So, they formulated that themselves and declared it a balance. We continued to dig into this and continued to find more and more serious issues.”

Picarello said the rule still “requires the insurer to offer those services directly to the employee, and when the employee accepts that offer, the employer still has to pay the bill. That is still morally problematic. We are still forced by the government to pay for these things directly.”

The other problem occurs with religious insurers who might have objections to providing that coverage. Picarello also said many dioceses in the U.S. are self-insured, and they are “both the employer and the insurer. They would be the ones who pays the dollars directly out of their funds.”

Asked what action might be acceptable to the bishops, Picarello said the bishops would “press for full compliance with the Constitution – not 2 percent compliance, not 98 percent compliance, but 100 percent compliance.”

“Step 1 (is to) rescind the mandate for these services,” Picarello said. “Preventive services are designed to prevent diseases. Pregnancy is not a disease. Therefore, they do not belong in the mandate. That is the first and most complete solution.”

If the government insists on keeping the mandate, Picarello said the bishops need “a complete religious freedom solution – which means a religious freedom solution for all stakeholders in the health insurance process.”

Alligator on the loose

Picarello said the fact that so many religious leaders from Protestant and Jewish traditions are supporting the Catholic Church in its fight against the mandate is a sign that large religious freedom issues are at stake.

“The bottom line is they’ve all stepped up,” Picarello said. “They all realize that even though it’s not necessarily their own beliefs at stake at the moment, if they do nothing now, it’s waiting for the alligator to eat you last. Now is the time to act because if the principle is damaged, it won’t be there to protect them later when their beliefs are at stake.”

The mandate is not “just about birth control,” Picarello stressed. He said the drugs covered include the Plan B drug and the “Ella chemical” that are designed to kill a fertilized egg. The law also includes sterilization.

Picarello said “all options are on the table” for the bishops, including filing suit in federal court. In the end, this fight is over religious liberty, he said.

“The touchstone is coercion,” Picarello said. “We have the coercive power of the state being applied to force us to provide, sponsor, pay for things that violate our most deeply held religious convictions.”

Peter Finney Jr. can be reached at pfinney@clarionherald.org.