HHS Final Rule Still Requires Action In Congress, By Courts, Says Cardinal Dolan

WASHINGTON—The U.S. Department of Healthand Human Services' final rule on its mandate that requires employee health insurancefor contraceptives, including abortion-causing drugs, and female sterilization doesnot appear, on first analysis, to eliminate "the need to continue defending ourrights in Congress and the courts," Cardinal Timothy Dolan ofNew York said July 3.

Cardinal Dolan issued the statement,after reviewing the ruling HHS made public June 28.

Cardinal Dolan, president of theU.S. Conference of Catholic Bishops, listed three areas of concern based on theMarch 2012 statement of the Administrative Committee, United for Religious Freedom: (1) the narrow definition of"religious employers" that are exempted, (2) the "accommodation" of religiousministries excluded from that definition, and (3) the treatment of businessesrun by people who seek to operate their companies according to their religiousprinciples.

"We are concerned as pastors withthe freedom of the Church as a whole—not just for the full range of its institutionalforms, but also for the faithful in their daily lives—to carry out the missionand ministry of Jesus Christ," Cardinal Dolan said.

Afirst concern with the definition of "religious employer," and the thirdconcern with faithful business owners and other individuals, still have notbeen addressed at all.The second areaof concern—the "accommodation" for religious charities, schools, hospitals, andother ministries of service—appears mostly the same, except for three relativelysmall changes that will require more time and analysis to evaluate.

Thestatement notes that the Conference "will have more to say when this aspect ofour analysis is completed."

CardinalDolan also repeated the gratitude he expressed June 28 for HHS's five-monthextension before implementation of the ruling, which threatens huge fines fromthe IRS.

Thefull statement follows.

Statement of Cardinal Timothy Dolan

Responding to June 28 Final Rule on HHS Mandate

Last Friday, the Administration issued its final rule regardingthe HHS mandate, which requires healthcare coverage for sterilization,contraception, and drugs and devices that may cause abortions.That same day, I issued a brief statementindicating that the Conference would take the time necessary to analyze the110-page regulation carefully and offer a fuller statement in due course.As I noted then, we appreciate the five monthdelay in enforcement, in part because it affords us the time for that necessaryanalysis and response.

Although the Conference has not completed its analysis ofthe final rule, some basic elements of the final rule have already come intofocus.It is useful to report promptlyon what we do know, and also to identify where further study is needed.

Once again, the statement United for ReligiousFreedom—issued by the U.S. bishops' Administrative Committee in March 2012, andaffirmed by the entire body of bishops in June 2012—provides the framework forexamining the final form of the HHS mandate.

That document identified three categories of religiousfreedom problems in the mandate—in short, problems with the "religiousemployer" exemption; problems with the "accommodation" for employers deemed not"religious enough" for the exemption; and problems with the lack of anyexemption or "accommodation" for individuals and for-profit businesses.That is, we are concerned as pastors with thefreedom of the Church as a whole—not just for the full range of itsinstitutional forms, but also for the faithful in their daily lives—to carryout the mission and ministry of Jesus Christ.

We can already tell how the final rule fares in the firstand third categories, because there have been no changes in those areas sincethe proposed rule of February.At thattime, we made clear that all but one of the problems we originally identifiedwith the definition of "religious employer" remained in place, and that theproposed rule actually made matters more troubling by preventing dioceses andother exempt employers from extending their coverage to the employees ofservice ministries that are not exempt.We also made clear in February that the proposed rule, like earlierversions, made no provision at all for individuals and for-profit businesses.Because the final rule remains the same inthese areas, so do our concerns.

In the second category—the "accommodation" for religiouscharities, schools, and hospitals—the overall structure remains the same asunder the proposed rule.There are,however, some relatively small changes to the "accommodation" that will takemore time to evaluate.But even now, itis clear that the final rule does at least three things differently from theproposed rule.

Two developments related to insured plans, and one toself-insured plans:

″For insuredplans, the proposed rule would have established separate insurance policies forcoverage of sterilization, contraception, and abortifacients; but the finalrule does not.Now, there is only onepolicy, and it is the one sponsored by the Catholic employer.The objectionable items will still be paidfor by virtue of the fact that an employee belongs to the Catholic employer'splan, but these amounts are described as "payments" rather than "coverage."

″Alsoregarding insured plans, the final rule proposes to segregate funds in a waynot specified in the proposed rule.Thisseems intended to strengthen the claim that objectionable items will notultimately be paid by the employer's premium dollars.But it is unclear whether the proposalsucceeds in identifying a source of funds that is genuinely separate from theobjecting employer, and if so, whether it is workable to draw from thatseparate source.

″Regardingself-insured plans, the proposed rule described three alternative roles for thethird-party administrator in securing coverage of sterilization, contraception,and abortifacients.The final ruleselects the alternative that treats the employer's very act of objecting tocoverage of sterilization, contraception, and abortifacients as the legalauthorization for a third-party administrator to secure the objectionablecoverage.In our comments to HHS on theproposed rule, we identified this alternative as the most objectionable of thethree.

Following United for Religious Freedom, we will continue toexamine the extent to which these changes tend to "force[ these religiousministries of service] to violate their own teachings within their very owninstitutions," in turn "undermin[ing] the effective proclamation of thoseteachings to the faithful and to the world."We will have more to say when this aspect of our analysis iscompleted.At this point, however, ourstudy has not discovered any new change that eliminates the need to continuedefending our rights in Congress and the courts.

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Keywords: Cardinal Timothy Dolan, Patient Protection andAffordable Care Act, abortion, contraceptives, sterilization, Catholic, U.S.Conference of Catholic Bishops, USCCB

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