The first of the Health & Human Services Mandates...

08-12-2012Fr. John LettersFr. John

Dear Friends,

The first of the Health & Human Services Mandates stemming from the Affordable Care Act has gone into effect as of August 1. This first mandate requires health insurance plans to provide all FDA approved forms of contraception, abortion-inducing drugs, sterilizations, HIV testing, Domestic Violence screening and some other services to women/girls at no cost. (If you put your 12yr old daughter on the pill you probably have other issues.) So your insurer should be retooling your health insurance to accommodate this first of many mandates. I suggest that if you do access any of these services, figure out what your cost would have been and place that money in the Sunday collection as a sort of divine irony.

Religious employers have been given until August 2013 to comply with this mandate or as Cardinal Dolan said, “a year to figure out how to violate our consciences”. In the meantime various Catholic and non-Catholic religious employers have filed dozens of lawsuits. Since Chief Justice Peter Pan ruled that the individual mandate is actually a tax and not a penalty some of these lawsuits have been put on hold till August ′13 since you can’t sue until a tax is actually imposed and you have to pay it. Other suits are progressing along constitutional grounds.

One lawsuit filed by a private business in Colorado owned by a Catholic family has won an injunction against the HHS mandate. The court ruled preliminary that the HHS Contraception Mandate violated the Religious Freedom Restoration Act of 1993. As I mentioned in an earlier letter on this topic the RFRA is a statute that says in part: if the government has a compelling reason to substantially burden the practice of religion it must do so in the least restrictive manner possible. On first glance the Court found that the Mandate violated this part of the statute at least since there are plenty of lesser restrictive ways to accomplish the Mandate. A full trial will follow. The government’s position seems to acknowledge this violation but is insisting that a business that is incorporated does not have the right to religious expression and hence does not fall under the RFRA.

My own arm chair lawyer first swipe at this argument would be that a family owned and operated business certainly has the right to run its business in keeping with the owner’s religious values (shouldn’t a Jewish owned restaurant be able to serve kosher food only?). But even a giant corporation that is owned by hundreds of shareholders should also be able to incorporate principles and values, religious or not, into its corporate practices and shun those that are opposed to its values. A corporation often does this through its Board or a shareholder vote.

Anyway all of these lawsuits will probably have to take the long and winding road to the US Supreme Court. The easy way to resolve the conflict over the Mandate is for the Administration to widen its definition of religion or actually just use the one that has been in place for the last century or so. But at this point the President has clearly stated that he will in no way accommodate those who would “harm women’s health.” (To clear up one misconception: our Employee Health Insurance does cover the cost of “the pill” if it is prescribed for medically necessary treatment other than contraception, though physicians tell me that any such medically necessary conditions can be treated without using “the pill”, but that’s another debate. Also the employee does not need to ask the employer’s permission. This is handled between physician, pharmacist and insurer). While the Catholic Church is objecting the loudest to the HHS Mandate the President also knows that he has most Catholic voters, especially those who do not practice their faith, in his back pocket. So unless that changes I don’t see the President offering to widen the religious exemption to the mandate anytime soon.

The framing of this issue is depicted as a clash between women’s rights and the rights of employers. This clash of human rights is a hallmark of our modern society. In medieval times religious values were the authority in the culture, after the Enlightenment period reason and science replaced religion and the Church as the final arbiter of societal norms. After the horrors of the early 20th century that scientific materialism wrought (the Holocaust, Atomic Bomb, Communism) human rights became the authority in our culture. The problem we face today is that when there is a clash between human rights which one wins and by what criteria is a winner decided?

Love,


Fr. John Bonavitacola

BACK TO LIST