Program #0231 for Tuesday, February 7, 2012: Obama Admin v. Religious Liberty

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Today’s host(s): Scot Landry and Fr. Chris O’Connor

Links from today’s show:

• USCCB Conscience Protection website
• Cardinal Seán’s letter on HHS ruling
• USCCB News Release: “White House misrepresents its own contraception mandate”
• “ObamaCare and religious freedom”, Cardinal-designate Timothy Dolan

Today’s topics: The Obama administration’s assault on religious liberty

Summary of today’s show:Scot Landry and Fr. Chris O’Connor go in-depth on the Obama administration’s recent ruling that Catholic institutions must violate their religious beliefs and conscience in providing healthcare to employees. They consider Cardinal-designate Timothy Dolan’s forthright remarks that show how extreme the administration’s policies on religious freedom are; the three key points highlighted by the US bishops that define this issue; a series of common questions and answers to clarify what’s at stake; the USCCB’s point-by-point rebuttal of the White House’s response; and a particularly egregious column by the Boston Globe’s Joan Venocchi.

1st segment: Scot Landry and Fr. Chris O’Connor caught up with their activities of the past week and discussed today’s topic. Fr. Chris said it’s outrageous what the Obama administration has done with Health and Human Services regulations on the contraception mandate for health insurance coverage. Scot said they will get behind the soundbites and slogan and examine the issue in-depth.

2nd segment: Scot said Cardinal-designate Timothy Dolan has been on the forefront of this issue and read from his recent op-ed:

Religious freedom is the lifeblood of the American people, the cornerstone of American government. When the Founding Fathers determined that the innate rights of men and women should be enshrined in our Constitution, they so esteemed religious liberty that they made it the first freedom in the Bill of Rights.

In particular, the Founding Fathers fiercely defended the right of conscience. George Washington himself declared: “The conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be extensively accommodated to them.” James Madison, a key defender of religious freedom and author of the First Amendment, said: “Conscience is the most sacred of all property.”

Scarcely two weeks ago, in its Hosanna-Tabor decision upholding the right of churches to make ministerial hiring decisions, the Supreme Court unanimously and enthusiastically reaffirmed these longstanding and foundational principles of religious freedom. The court made clear that they include the right of religious institutions to control their internal affairs.

Yet the Obama administration has veered in the opposite direction. It has refused to exempt religious institutions that serve the common good—including Catholic schools, charities and hospitals—from its sweeping new health-care mandate that requires employers to purchase contraception, including abortion-producing drugs, and sterilization coverage for their employees.

He played the Cardinal’s video statement from the USCCB website on this issue. Scot further explained the Cardinal-designate’s point about recent Supreme Court cases and how even justices appointed by Obama are saying the administration’s interpretation of the first amendment is getting more and more extreme. Fr. Chris said he hears priests refer to it as the persecution of faith. He said this isn’t the Church’s war on Obama, but the Church calling for the protection of the freedom of conscience.

Scot and Fr. Chris pointed out that our rights do not come from the will of the government, but that they are ours by right of our birth and given to us by God himself and this has been emphasized by Pope Benedict XVI, quoting our own Declaration of Independence.

Scot said the contraceptive mandate imposed on health plans by the Department of Health and Human Services (HHS) violates freedom of conscience, which is guaranteed by the First Amendment and several federal laws. The Bill of Rights says we are free to live by our religious beliefs. Forcing all of us to buy coverage for sterilization and contraceptives, including drugs that induce abortion, is a radical incursion into freedom of conscience. Never before in U.S. history has the federal government forced citizens to directly purchase what violates their beliefs. The Supreme Court recently declared in the Hosanna-Tabor case that the Constitution gives a priority place to Freedom of Religion.

Scot and Fr. Chris discussed how this isn’t just a Catholic issue. The first amendment protects, for example, Jewish nursing homes from having to serve pork in meals to non-Jewish residents. The government cannot force them to under the Constitution.

Scot said HHS created this mandate after Congress asked it to develop a list of services all health plans should provide without co-pay. Instead of keeping with the prevention of diseases like breast cancer, sexually transmitted diseases and gestational diabetes, HHS took it upon itself to include sterilizations, contraceptives and abortion-inducing drugs. It treats pregnancy as an illness like breast cancer. Fr. Chris said we should talk about ensuring life, not discarding it. Obama is asking Catholics to support something that is radically against what we believe at the core of our faith.

Scot said the US Conference of Catholic Bishops have been publishing numerous documents to help us understand this issue. One of the key points is that the mandate treats a healthy pregnancy as a disease in need of “prevention,” like breast cancer or AIDS (which other “preventive services” on HHS’s list do legitimately seek to prevent). In reality, some of the mandated contraceptives are associated with an increased risk of AIDS, blood clots leading to stroke, and other ailments. Inclusion of these drugs places HHS’s effort to prevent disease at war with itself. Militant pro-abortion people in the administration is trying to stick it to the Church. Fr. Chris said this is why he’s so glad the USCCB is mobilizing and people are hearing what this is called for.

Scot said the second point they make is that HHS wants abortifacient drugs to be required in every health plan. These drugs cause abortions and employers must subsidize abortion and individual Catholics must pay as part of their general premiums for everyone else’s abortion drugs. Fr. Chris said the Church will not support this.

Scot said the third point is that the rule violates religious freedom and rights of conscience. The rule has an incredibly narrow religious exemption for “religious employers” (not insurers, schools with student health plans, or families purchasing insurance). Even religious employers are exempt only if their purpose is to inculcate religious doctrine, they hire and serve mainly people of their own faith, and they qualify as a church or religious order in a very narrow part of the tax code. Most religious institutions providing health, educational or charitable services to others have no protection. The head of Catholic Charities USA said even Jesus wouldn’t qualify for the exemption because he healed everyone regardless of their belief. Fr. Chris said the bill protects individual churches. Scot said it would not include churches if they have a food pantry that serves non-Catholics. It would force the Church to stop providing public services.

Fr. Chris said institutions that don’t buy in are threatened with fines and those fines could bankrupt them. It’s as if the Obama administration wants to put Catholic charitable organizations out of business.

3rd segment: Scot and Fr. Chris discussed a list of questions and answer put out by the USCCB. the first question is “How important is the right of conscience in American tradition?” Scot quoted Thomas Jefferson: “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority”.

In the past, has the federal government respected conscientious objections to procedures such as sterilization that may violate religious beliefs or moral convictions?

Yes. For example, a law in effect since 1973 says that no individual is required to take part in “any part of a health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services” if it is “contrary to his religious beliefs or moral convictions” (42 USC 300a-7 (d)). Even the Federal Employees Health Benefits Program, which requires most of its health plans to cover contraception, exempts religiously affiliated plans and protects the conscience rights of health professionals in the other plans. Currently no federal law requires anyone to purchase, sell, sponsor, or be covered by a private health plan that violates his or her conscience.

How has the Department of Health and Human Services departed from this policy?

By issuing a mandate for coverage of sterilization and contraceptives (including long-lasting injections and implants, and “morning-after pills” that may cause an early abortion) in virtually all private health plans. In August 2011 HHS included these procedures in a list of “preventive services for women” to be required in health plans issued on or after August 1, 2012. On January 20, 2012, HHS reaffirmed its mandate while deferring enforcement against some religious employers until August 2013.

Scot noted that the timing means President Obama won’t have to stand for re-election with this issue hanging over him. Fr. Chris noted Mitt Romney’s recall of how Catholic Charities in Boston had to get out of the adoption business because of this kind of overreach into religious liberty. Scot noted that many Catholics who supported Obama in 2008 who have said how they are disappointed by this ruling and that they won’t be supporting Obama in 2012 unless this changes. Obama won in 2008 with a greater portion of the Catholic vote than John McCain. They discussed prominent Catholic Doug Kmiec who supported Obama in 2008 and later was named Ambassador to Malta by Obama has said this has gone too far.

Isn’t this an aspect of the Administration’s drive for broader access to health care for all?

Whether or not it was intended that way, it has the opposite effect. People will not be free to keep the coverage they have now that respects their convictions. Organizations with many employees will have to violate their consciences or stop offering health benefits altogether. And resources needed to provide basic health care to the uninsured will be used instead to facilitate IUDs and Depo-Provera for those who already had ample coverage. This is a diversion away from universal health care.

Scot said the bishops weren’t very strong opposing the initial mandate in the law because they expected the religious exemption to be included and now the only provision was giving the Church an extra year to figure out how to violate our consciences or drop health care coverage for employees and face massive fines. Fr. Chris said Dolan met with Obama in November and came out of that meeting confident of this conscience clause so this is a real shock to the Catholic bishops. Fr. Chris said the media has reported first that the administration was reconsidering, but then said only that they would listen to concerns.

What solution to this dispute would be acceptable?

Ideally, HHS can leave the law the way it has always been, so those who provide, sponsor and purchase health coverage can make their own decisions about whether to include these procedures without the federal government imposing one answer on everyone. If HHS refuses, it will be especially urgent for Congress to pass the “Respect for Rights of Conscience Act” (HR 1179/S. 1467), to prevent health care reform act from being used to violate insurers’ and purchasers’ moral and religious beliefs.

4th segment: Scot said the USCCB issued a response to the White House’s contradictory statements on its own contraceptive mandate.

The Obama administration, to justify its widely criticized mandate for contraception and sterilization coverage in private health plans, has posted a set of false and misleading claims on the White House blog (“Health Reform, Preventive Services, and Religious Institutions,” February 1). In what follows, each White House claim is quoted with a response.

Claim: “Churches are exempt from the new rules: Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception.”

Response: This is not entirely true. To be eligible, even churches and houses of worship must show the government that they hire and serve primarily people of their own faith and have the inculcation of religious values as their purpose. Some churches may have service to the broader community as a major focus, for example, by providing direct service to the poor regardless of faith. Such churches would be denied an exemption precisely because their service to the common good is so great. More importantly, the vast array of other religious organizations – schools, hospitals, universities, charitable institutions – will clearly not be exempt.

Most religious organizations, not just Catholic, would be forced to provide such services.

Claim: “No individual health care provider will be forced to prescribe contraception: The President and this Administration have previously and continue to express strong support for existing conscience protections. For example, no Catholic doctor is forced to write a prescription for contraception.”

Response: It is true that these rules directly apply to employers and insurers, not providers, but this is beside the point: The Administration is forcing individuals and institutions, including religious employers, to sponsor and subsidize what they consider immoral. Less directly, the classification of these drugs and procedures as basic “preventive services” will increase pressures on doctors, nurses and pharmacists to provide them in order to participate in private health plans – and no current federal conscience law prevents that from happening. Finally, because the mandate includes abortifacient drugs, it violates one of the “existing conscience protections” (the Weldon amendment) for which the Administration expresses “strong support.”

Scot said this is about forcing insurers to include them in their plans and individual Catholics must then subsidize those immoral acts. This isn’t about directly providing the drugs.

Claim: “No individual will be forced to buy or use contraception: This rule only applies to what insurance companies cover. Under this policy, women who want
contraception will have access to it through their insurance without paying a co-pay or deductible. But no one will be forced to buy or use contraception.”

Response: The statement that no one will be forced to buy it is false. Women who want contraception will be able to obtain it without co-pay or deductible precisely because women who do not want contraception will be forced to help pay for it through their premiums. This mandate passes costs from those who want the service, to those who object to it.

Claim: “Drugs that cause abortion are not covered by this policy: Drugs like RU486 are not covered by this policy, and nothing about this policy changes the President’s firm commitment to maintaining strict limitations on Federal funding for abortions. No Federal tax dollars are used for elective abortions.”

Response: False. The policy already requires coverage of Ulipristal (HRP 2000 or “Ella”), a drug that is a close analogue to RU-486 (mifepristone) and has the same effects.1 RU-486 itself is also being tested for possible use as an “emergency contraceptive” – and if the FDA approves it for that purpose, it will automatically be mandated as well.

Scot said the White House is trying to pivot from an unfavorable question to a more favorable. This isn’t about a particular drug, but a class of drugs.

Claim:“Over half of Americans already live in the 28 States that require insurance companies cover contraception: Several of these States like North Carolina, New York, and California have identical religious employer exemptions. Some States like Colorado, Georgia and Wisconsin have no exemption at all.”

Response: This misleads by ignoring important facts, and some of it is simply false. All the state mandates, even those without religious exemptions, may be avoided by self- insuring prescription drug coverage, by dropping that particular coverage altogether, or by taking refuge in a federal law that pre-empts any state mandates (ERISA). None of these havens is available under the federal mandate. It is also false to claim that North Carolina has an identical exemption. It is broader: It does not require a religious organization to serve primarily people of its own faith, or to fulfill the federal rule’s narrow tax code criterion. Moreover, the North Carolina law, unlike the federal mandate, completely excludes abortifacient drugs like Ella and RU-486 as well as “emergency contraceptives” like Preven.

Scot said some states have policies on this, but they would be overridden by federal law. The state laws don’t affect religious employers because federal exemptions sweep them away,but those exemptions would be done away by this. Fr. Chris said the White House is comparing apples and oranges.

Claim: “Contraception is used by most women: According to a study by the Guttmacher Institute, most women, including 98 percent of Catholic women, have used contraception.”

Response: This is irrelevant, and it is presented in a misleading way. If a survey found that 98% of people had lied, cheated on their taxes, or had sex outside of marriage, would the government claim it can force everyone to do so? But this claim also mangles the data to create a false impression. The study actually says this is true of 98% of “sexually experienced” women. The more relevant statistic is that the drugs and devices subject to this mandate (sterilization, hormonal prescription contraceptives and IUDs) are used by 69% of those women who are “sexually active” and “do not want to become pregnant.” Surely that is a minority of the general public, yet every man and woman who needs health insurance will have to pay for this coverage. The drugs that the mandate’s supporters say will be most advanced by the new rule, because they have the highest co-pays and deductibles now, are powerful but risky injectable and implantable hormonal contraceptives, now used by perhaps 5% of women. The mandate is intended to change women’s reproductive behavior, not only reflect it.

Fr. Chris went back to Pope Benedict who said that the Church’s teaching is not based on popularity. It is based on the truth communicated by Jesus Christ.

Claim: “The Obama Administration is committed to both respecting religious beliefs and increasing access to important preventive services. And as we move forward, our strong partnerships with religious organizations will continue.”

Response: False. There is no “balance” in the final HHS rule—one side has prevailed entirely, as the mandate and exemption remain entirely unchanged from August 2011, despite many thousands of comments filed since then indicating intense opposition. Indeed, the White House Press Secretary declared on January 31, “I don’t believe there are any constitutional rights issues here,” so little was placed on that side of the scale. The Administration’s stance on religious liberty has also been shown in other ways. Recently it argued before the Supreme Court that religious organizations have no greater right under the First amendment to hire or fire their own ministers than secular organizations have over their leaders– a claim that was unanimously rejected by the Supreme Court as “extreme” and “untenable.” The Administration recently denied a human trafficking grant to a Catholic service provider with high objective scores, and gave part of that grant instead to a provider with not just lower, but failing, objective scores, all because the Catholic provider refused in conscience to compromise the same moral and religious beliefs at issue here. Such action violates not only federal conscience laws, but President Obama’s executive order assuring “faith-based” organizations that they will be able to serve the public in federal programs without compromising their faith.

Scot said the bishops are encouraging everyone to contact their Senators and Representatives to ask them to support proposed legislation to protect religious liberty.

5th segment: Scot and Fr. Chris turned to discuss a recent op-ed in the Boston Globe by columnist Joan Venocchi.

• “Catholic Church’s unfair attack against Obama”

But not all employees of Catholic institutions are Catholics. Why should their employers impose their religious beliefs on them and deny coverage for birth control and other medical care? As long as those Catholic institutions are getting taxpayer money, they should follow secular rules. That’s the Obama administration’s argument, and it makes sense.

Scot said Venocchi doesn’t remember that it’s the taxpayers who provide the money that the government disburses to provide services to people. Fr. Chris said the majority of Americans are religious believers, so she forgets that the majority of the people paying the taxes are believers in God who want to protect their conscience.

On the larger health care reform issue, this president has the moral high ground, if only he would take it. A church that is supposedly dedicated to feeding the hungry and clothing the naked wouldn’t want to leave it to insurance companies and free markets to decide who gets to see a doctor and who gets care – would it?

Fr. Chris said he’s doesn’t understand her point. It’s a red herring. People have been receiving health care all along. All the Church is saying is that we cannot support contraception, sterilization, and abortion. Scot said the argument is that if you support universal healthcare, you have to support this mandate.

Obama isn’t trying to regulate religion or undermine Catholicism. He’s telling Catholic leaders they can’t regulate the beliefs of those of other faiths. That’s fitting in a country that treasures religious freedom, but also values separation of church and state.

Scot said Obama is indeed telling Catholics that they can’t regular their own beliefs. He said separation of church and state is also misrepresented. It only means the government can’t name a particular religion as official. Fr. Chris said this is exactly what the Church wants: freedom from the interference of the state.

Scot ended by reciting the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of religion is not just how we pray in Church on Sunday, but we live our whole lives every day. This law prohibits the free exercise thereof.