Birth Control, ACA, HHS, and the RC Church

Catholic Church Blasts HHS Birth Control Rule

By Emily P. Walker, Washington Correspondent, MedPage TodayPublished: January 30, 2012



WASHINGTON — The Catholic Church is protesting an Obama administration rule that requires nearly all employers — even Catholic ones — who provide insurance to their employees to include coverage of birth control services.

The United States Conference of Catholic Bishops (USCCB) has come down against the administration for not exempting all religious organizations from the rule.

In a video posted to the group’s website, USCCB president Archbishop Timothy Dolan said the “administration is on the wrong side of the Constitution” and that the rule to provide birth control is a violation of the First Amendment of the Constitution, which provides for the free exercise of religion.

Anecdotally, Catholics from the Midwest to the Washington, D.C., area said their churches addressed the issue in the past week via church bulletins that urged churchgoers to contact their members of Congress to support legislation to reverse the administration’s rule.

The Obama administration rule stems from a provision in the Affordable Care Act (ACA) that requires no-cost coverage for preventive health services. The Institute of Medicine (IOM) recommended that the Department of Health and Human Services cover the “full range of FDA-approved contraceptive methods” in order to prevent unintended pregnancies at no cost to the beneficiary, and that includes birth control.

The final rule, issued by the Department of Health and Human Services (HHS) on Jan. 20, says that starting on Aug. 1, 2013, health plans must cover all FDA-approved contraceptives, including hormonal contraceptives such as birth control pills, implanted devices such as intrauterine devices (IUDs), Plan B emergency contraceptives (the “morning-after” pill), and sterilization — all without charging a copay, coinsurance, or a deductible.

The plans will not have to cover abortions, however.

Churches and church-affiliated secondary schools are exempt from the rule, but other organizations with religious affiliations — including universities, charities, and hospitals — must comply. Such organizations petitioned HHS for an exemption after the preliminary rule was issued last summer. As a compromise, they have been given an extra year to comply.

“In effect, the president is saying we have a year to figure out how to violate our consciences,” Dolan said in a statement.

The Catholic Church opposes preventing conception by any artificial means, including condoms, IUDs, birth control pills, and sterilization.

Sister Mary Ann Walsh of the USCCB told MedPage Today that requiring Catholic providers to write prescriptions for birth control would be asking them to violate the church’s teaching.

“If you went to the Jewish deli, you can’t complain because it doesn’t have pork,” she said. “If you went to a Catholic hospital, you shouldn’t be surprised that that a Catholic hospital won’t prescribe contraception and sterilization.”

Walsh said the USCCB supports legislation authored by Rep. Jeff Fortenberry (R-Neb.) that would amend the ACA to permit health plans to refuse to cover specific items, such as birth control or services that “are contrary to the religious beliefs” of the entity offering the plan, without penalty. The bill, HR 1179, would allow those plans to still be considered “qualified health plans” and therefore able to be sold in the health insurance exchanges created by the healthcare reform law.

The bill has 102 sponsors, seven of whom are Democrats.

The Catholic Health Association of the United States declined a request for an interview, but pointedMedPage Today to a statement made by CEO Carol Keehan, who said the group is disappointed that HHS exempted only churches, but not religious hospitals, from its preventive services rule.

“The challenge that these regulations posed for many groups remains unresolved,” Keehan said in the statement. “This indicates the need for an effective national conversation on the appropriate conscience protections in our pluralistic country, which has always respected the role of religions.”


During the debate in 2009, The Bishops fought to have abortion not covered by ACA and the Catholic hospitals split with them (you can look that up).  The compromise finally went the Bishops’ way on abortion, as I recall.  Birth control, not including elective abortion, of course, remained in ACA, with an exemption for Churches, but not for RC employers or RC Hospitals (which presumably do not want that exemption, judging by 2009’s experience).  Is there some way the Bishops have been subjected to a sneak attack here, or was this a fight that was just going to happen once ACA was implemented, no matter what?  It seems to me that HHS is implementing ACA here as written.  Is there an executive overreach here that I am missing?  Was there reason to think a “church” included a “hospital” affiliated with the RCC?

Your collective input is required for my edification.

20 Responses

  1. As a lapsed Cafeteria Catholic, I probably don’t have standing on this issue, but it is a clear sign of how out-of-touch the Church hierarchy is concerning the American congregation, of which I estimate 80-90% use some form of non-rhythm contraception.

    I understand that theologically they have backed themselves into a corner, but if they are offering health services to the general public, and they are, they should follow current applicable standards of care. Contraception (and abortion) are still legal in this country. So far.


  2. YJ, do you think the issue has no political fallout, then?

    Personally, I am more interested in whether there ever was an “understanding” between the Bishops and the Admin that has been breached by one or the other. I am more interested in whether NOVAH thinks the HHS is not following ACA here.

    But YJ’s comment raises the obvious political question.


  3. yello:

    Contraception (and abortion) are still legal in this country.

    So is smoking. Should the church, or anyone, be forced by law to provide cigarettes to its employees and/or patrons?


  4. Mark:

    Is there an executive overreach here that I am missing?

    I don’t know if it is executive overreach within the context of prevailing interpretations of executive power. But it strikes me as clear overreach within the context of the freedoms envisioned by the founders, the protection of which is the very purpose of the government.

    Where in the constitutions is the executive granted the power to issue “rules” mandating that private organizations must provide services they do not wish to provide?


  5. Are cigarettes a medical procedure or pharmaceutical product? George Will once described them as the only legal product that when used as intended, results in death.


  6. Scott, there may be a legislative overreach.

    Unless the executive is going outside the statute I do not see the executive overreach.


  7. yello:

    Are cigarettes a medical procedure or pharmaceutical product?

    No, but you seemed to suggest that the legality of a product/service was relevant to whether someone should be forced to provide it. That makes no sense at all, as the cigarette example presumably demonstrates.


  8. Mark:

    Unless the executive is going outside the statute I do not see the executive overreach.

    Correct me if I am wrong (I may be), but the legislature is not empowered to grant the executive powers beyond those already granted by the constitution. And the executive is not obliged to act beyond his constitutionally granted powers just because a legislature has said he can or asked him to.

    It may be legislative overreach, but if the above is true (again, you should confirm), it seems to me it is executive overreach as well.


  9. Well, if I were POTUS, I would stay operation of this section until the Supremes ruled, because I think Hosanna-Tabor, decided 9-0 two weeks ago or so, makes it likely the Supremes would say this provision is a violation of First Amendment rights, to some extent, for someone.

    But staying operation of a section is an unusual measure. It is what I would do, so maybe if BHO reads our blog he will, too.


  10. This raises a related question: is this issue before the Supremes now in the ACA challenge?


  11. so maybe if BHO reads our blog

    lol mark, I should send him a link huh?


    • lms:

      lol mark, I should send him a link huh?

      Yes, and if you hear back that he plans to start reading ATiM, let me know. I will be even more active in posting.


  12. I view this whole thing as yet another argument to get away from employer provided health insurance and instead transition to a system where the individual purchases their own health insurance on regulated exchanges ala Wyden-Bennett.


  13. Should the church, or anyone, be forced by law to provide cigarettes to its employees and/or patrons?

    They should hand out cigarettes with the condoms. Lots of people enjoy a smoke after their non-marital procreation-avoiding fornication.


  14. This is clearly a blog he should read immediately after his National Security briefing in the morning. Or, should have digested for him and regurgitated to him. This blog, regurgitated, remains superb. Sort of like a banana, it tastes about the same on the way up.


  15. Mark:

    This raises a related question: is this issue before the Supremes now in the ACA challenge?

    No. Only three issues before SCOTUS for ACA: 1) individual mandate and severability; 2) Medicaid provisions (coercion); 3) applicability of the Anti-Injuction Act.

    In re Hosanna-Tabor, I think the relevant issue is how direct is the control that the religious groups have over the related organizations. It appears that the executive order carved out exceptions for both churches themselves as well as church-related secondary schools, which was the issue for the ministerial exception granted in Hosanna-Tabor. However, the executive order described above affects health plans for employees of organizations with religious affiliations. It doesn’t force the organizations to provide such services and, in light of Hosanna-Tabor, those organizations might even be able to fire any employee that takes advantage of the birth control coverage.


  16. Mike, thanks.

    H-T affirmed that many questions of church governance are just that. So I would think that Catholic U.’s policy wrt birth control info would be recognized by the Supremes b/c the Vatican controls that school, while Notre Dame might be treated differently b/c there is no church governing body.

    Just guessing. But I think H-T, as I suggested and you point out, leads to some hair splitting about which institutions can claim the religious freedom.

    Thanks for answering the direct question. I did not recall that this issue had been raised. I suppose, as with CU, the Supremes could ask for additional briefing outside the issues raised below.


  17. The contraception stuff is rolled into the preventive health services that was part of the bill, as amended by the Women’s Health Amendment. This was sponsored by Sen. Barbara Milkulski (D-MD).

    I’d have to dig into the law to see exactly how its phrased, but I do recall that during the floor debate it was obvious to anyone paying attention that the sponsors and supporters intended this to apply to contraception — and broadly.

    That this would apply to hospitals, schools, etc was obvious — and there was debate about whether the church should withhold support. but the bishops were kind of cut at the knees when CHA came out in support of the senate bill.

    but ultimately, the RCC was bluffing. they were not going to oppose a bill that had universal coverage as its goal. And the were focused on the Stupak issue re: abortion. so they got in bed with the Obama administration. too late to be freaked out that they’re into some kinky stuff.

    2nd jnc4p’s point re: breaking the bond between employer and insurance. and would add that BC is hardly an unexpected expense.


  18. Thanks, NoVAH.


  19. Seems to me this is simply about coverage. The wording reads that health plans must cover contraceptives. It says nothing about the Catholic facilities having to dispense them with the drinking water. Half their employees will never take advantage of the coverage, and the other half may or may not, depending on their adherence to the church’s teachings. There’s no infringement upon freedom of religion because it’s up to the individual and their own relationship with their religion whether or not to take advantage of the coverage.

    Many people, especially when it comes to religion, seem to conflate the *lack of privilege* with *persecution.* And failt to differentiate the *existence* of something with the *enforced use* of it. The existence of a social safety net doesn’t turn us all into piglets suckling at the gubmint teat, and the existence of BC coverage in a health plan (offered by some company that’s presumably not a Catholic church) doesn’t automatically preclude its enforced use.


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