BY BISHOP HOWARD J. HUBBARD
Last week, the U.S. Supreme Court upheld the central pillar of the "Patient Protection and Affordable Care Act" (ACA), ruling that the mandate for individuals to purchase health insurance is constitutional under the taxing power of Congress.
The court's ruling, however, did modify a key provision of the ACA, stating that the federal government cannot withdraw existing Medicaid funding from states that decide not to participate in a broad expansion of Medicaid eligibility.
As Chief Justice John Roberts stated, "Congress can offer money to states to expand Medicaid and can attach conditions to such grants. What Congress is not free to do is to penalize states that choose not to participate in the new program by taking away their existing Medicaid funding."
I received the court's decision with a mixed reaction. As I wrote in The Evangelist in September 2009 when healthcare reform was being debated by Congress
(see The bishops of the United States have advocated on behalf of universal, affordable and accessible health care for decades). We believe that every person created in the image and likeness of God has a basic human right to those things necessary to sustain life. The fact that over 46 million Americans lack health care insurance is morally unacceptable.
"Thus, we support healthcare reform that respects the life and dignity of every person from conception until natural death. That means the unborn, the disabled, the mentally ill, the addicted, the single mother, the preschooler, the cancer sufferer, the person with HIV/AIDS disease, the immigrant, the frail elderly and the dying."
I noted further that "while the bishops of our country have not advocated for a specific reform package or taken a position for or against a public sector option, we have articulated four principles that should guide any reform."
Let me cite two of these.
1. "Provides access to comprehensive quality health care for all, with a special concern for the poor and legal immigrants. The reform measures must begin with the conviction that decent health care is not a privilege, but a fundamental human right. All people should be able to receive health care, irrespective of their stage of life, where or whether they or their parents work, how much they earn, where they live or where they were born."
So, in one sense, I am very pleased that the Supreme Court decision will permit the extension of healthcare benefits to more than 30 million Americans - including young adults through the age of 26 who can be retained under their parents' health insurance, those who previously were excluded because of a pre-existing condition, and more services for the elderly poor.
However, an estimated 26 million people will remain uncovered, including immigrant workers and their families, who actually are left worse off under ACA because they will not be allowed to purchase healthcare coverage in the new exchanges created under the law, even if they use their own money.
2. "Upholds without exception conscience rights, already guaranteed in existing legislation for healthcare providers, to decline involvement in abortions or abortion referrals. It must also insure that euthanasia and other immoral activities are not funded or mandated."
This second principle for healthcare reform that the bishops have articulated was not under review by the court, but has been violated by implementing a regulation issued this past January by the Department of Health and Human Services (HHS), which stated that all insurance plans under the Affordable Care Act must include coverage for contraception, sterilization and abortifacients that the Church teaches to be morally unacceptable.
After our protest, in February of this year, the HHS gave an exemption to religious employers - but the definition of religious employers is very narrow, applying only to Catholic parishes and some grammar or high schools.
What is most distressing about this HHS definition is that Catholic hospitals, nursing homes, colleges and human service agencies are not eligible for the religious exemption because they have staffs that are not exclusively Catholic and often serve populations that are largely not Catholic.
This is a tremendous intrusion of the government into the basic rights which belong to citizens under the First Amendment of our Constitution. These religious institutions have been part and parcel of the Church's mission and ministry going back to ancient times. To have the government now determine that they are not religious ministries is a grave violation of our cherished religious liberty.
Eye of needle
The Catholic Health Association states that "this exemption in the final rule is narrower than any conscience clause ever enacted in federal law and reflects an unacceptable change in federal policy regarding religious beliefs," which previously defined these entities as religious institutions under Section 414 of the Internal Revenue Code.
Further, it is not only the Catholic bishops who have objected to this HHS regulation and the narrow definition of those included under the religious employers exemption. So, too, have 150 religious leaders from other Christian denominations, who do not all share our moral position on contraception and are paying for such, but view the ruling of the HHS as a breach of religious freedom.
These leaders object to the language of the exemption, noting that "it creates a 'two-class' system of religious groups: churches, which qualify under the wording of the exemption, and 'faith-based service organizations,' which may or may not qualify."
Their letter of protest states strongly that "we deny it is within the jurisdiction of the federal government to define, in the place of religious communities, what constitutes true religion and authentic freedom."
Consequently, in May, 43 Catholic groups - including dioceses and Church entities like the University of Notre Dame - filed 12 lawsuits in various federal courts challenging the mandate and its narrow exemption.
As I suggested last month in my column for The Evangelist on incivility (June 7 issue), this issue has become a political football with pundits having a field day. Uncivil headlines like "Catholic Church Wages War on Women" or "President Declares War on Religion" have become commonplace.
For example, on May 27, a New York Times editorial attacked the 12 lawsuits as "a domestic stunt, full of indignation but built on error." The editorial concluded that the bishops' legal strategy was "a clear partisan play."
Whether one agrees with the bishops' opposition to the HHS regulation and its narrow religious exemption, let me try to clarify what our position is not about.
What we're not
It is not about opposition to universal health care. Since 1919, the bishops of the United States have consistently advocated for universal health care as a basic human right.
Further, as the body of bishops affirmed in our meeting in Atlanta last month, our opposition is not about bishops "banning contraception," since the Supreme Court took this issue off the table decades ago. It is not about access to contraception, which is ubiquitous and inexpensive in the United States. It is not about the Church taking partisan sides in a presidential election year.
Nor is our opposition a battle we wanted or asked for, but one forced upon us by the government on its own timing. Indeed, the leadership of the bishops' conference had been in dialogue with the administration and Congress about the need for religious conscience protection under the Affordable Care Act throughout 2010 and 2011.
Further, when the Department of Health and Human Services issued the initial regulations in the summer of 2011, we vigorously expressed our opposition, and we continue to be willing to resolve our differences either through an administrative act, legislation or judicial means.
What we are
What, then, is the disagreement about? Let me quote from the document approved unanimously by the U.S. Bishops' Conference: "It is about our concern for two violations of religious liberty."
First, we bishops have concluded that the HHS regulation is "an unwarranted government definition of religion. The regulation includes an extremely narrow definition of what HHS deems a "religious employer" deserving exemption: employers who, among other things, must hire and serve primarily those of their own faith.
We are deeply concerned about this new definition of who we are as people of faith and what constitutes our ministry. The introduction of this unprecedented defining of faith communities and their ministries has precipitated a struggle for religious freedom. Government has no place defining religion and religious ministry.
HHS thus creates and enforces a new distinction - alien both to our Catholic tradition and to federal law - between our houses of worship and our great ministries of service to our neighbors: namely, the poor, the homeless, the sick, the students in our schools and universities, and others in need, of any faith community or none.
We are commanded both to love and to serve the Lord; laws that protect our freedom to comply with one of these commands but not the other are nothing to celebrate. Indeed, they must be rejected, for they create a "second class" of citizenship within our religious community.
Ripples in pond
If this definition is allowed to stand, it will spread throughout federal law, weakening its healthy tradition of generous respect for religious freedom and diversity. All - not just some - of our religious institutions share equally in the very same God-given, legally-recognized right not "to be forced to act in a manner contrary to their own beliefs."
Second, this HHS regulation forces us to act against our teachings. The exemption is not merely a government foray into internal Church governance, where government has no legal competence or authority - disturbing though that may be. This error in theory has grave consequences in principle and practice. Those deemed by HHS not to be "religious employers" will be forced by government to violate their own teachings within their very own institutions.
This is not only an injustice in itself, but it also undermines the effective proclamation of those teachings to the faithful and to the world.
For decades, we bishops have led the fight against such government incursions on conscience, particularly in the area of health care. Far from making us waver in safeguarding this long-standing commitment, the unprecedented magnitude of this latest threat has only strengthened our resolve to maintain that consistent view.
Must make changes
Following enactment of ACA, the U.S. Conference of Catholic Bishops did not join in efforts to repeal the law in its entirety, and does not do so today. The decision of the Supreme Court neither diminishes the moral imperative to ensure decent health care for all, nor eliminates the need to correct the fundamental flaws I have described.
The bishops, therefore, continue to urge Congress to pass, and the administration to sign, legislation to fix those flaws.
This week, as we have celebrated our national Independence Day, I hope that our Catholic people and all who are concerned about religious freedom will urge the Congress and the administration to reverse the HHS regulation in the implementation of the Affordable Care Act, so that universal health care can be provided in a way that does not violate the rights of religious institutions to serve people in accord with the precious religious freedom guaranteed by the First Amendment to our U.S. Constitution.