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Battle Over Birth Control

January 17, 2012

A fight is brewing between religious colleges and the Obama administration over one question: Should colleges where religious authorities preach against some methods of contraception be required to offer health insurance that covers those contraceptive methods at no cost?

In August, the Department of Health and Human Services issued guidelines on implementing the 2009 health care law. Part of that interim final rule would require new insurance plans for women to cover all contraceptives approved by the Food and Drug Administration with no copays or other cost sharing. The rule provides an exemption for some religious employers, but many Roman Catholic and Christian groups are protesting, saying the exemption is not broad enough and will not cover their institutions.

“Conscience is now moved to the margins and is no longer protected,” said Michael Galligan-Stierle, president of the Association of Catholic Colleges and Universities.

The fight began in the fall, with strongly worded letters to the department asking for the rule to be amended to offer a wider exemption. Since then, it has become a legal battle: two colleges -- one Catholic college and one evangelical Christian university -- have filed suit in federal court over the requirement, and additional colleges are said to be considering lawsuits of their own.

The rule, which will take effect Aug. 1, exempts religious employers from the requirement to offer health plans that cover contraceptives only if the employers meet specific guidelines. The organization’s purpose must be to inculcate religious values, it must primarily employ and serve people with the same religious beliefs, and it must be considered a nonprofit organization under provisions of the tax code that cover churches and religious orders.

But many religious colleges say the exemption is too narrow: “even Jesus couldn’t live it,” Galligan-Stierle said, because he ministered to people of other faiths. The exemption effectively applies only to churches, not to other faith-based organizations that serve people of all faiths or have a mission aside from transmitting religious values, including hospitals, charities and colleges. And the exemption applies only to employer-sponsored health coverage, not the individual plans that some colleges and universities offer to students.

The requirement poses the most immediate problem for Catholic colleges, as Catholic doctrine holds that sterilization and all artificial methods of contraception are immoral.

“This would compel Notre Dame to either pay for contraception and sterilization in violation of the church’s moral teaching, or to discontinue our employee and student health care plans in violation of the church’s social teaching,” the Rev. John Jenkins, the university’s president, wrote in a letter to Health and Human Services Secretary Kathleen Sebelius. “It is an impossible position.”

Many Protestant colleges object as well, because they consider two of the contraceptives -- Plan B and ella, both versions of the “morning-after pill” that can be taken after unprotected sex to prevent pregnancy -- to be tantamount to abortion.

Representatives of both denominations said there was a deeper issue at stake: whether the federal government would provide ample protection for religious objections -- a controversial question, especially in matters related to birth control.

“Our concern and our issue, a more broad and universal objection, is to anyone having to provide services that they’re religiously opposed to,” said Shapri LoMaglio, director of government relations for the Council of Christian Colleges and Universities.

In a recent letter to the White House, the council’s president, Paul Corts, called for an elimination of the mandate altogether, or for a broader exemption that would cover institutions of higher education. The group is concerned that the HHS might change the rule to exempt religious organizations affiliated with a particular church, as Jenkins requested in his letter, which would cover Notre Dame and other Catholic colleges but leave out Protestant institutions.

During the public comment period before the interim final rule was issued, which ended Sept. 30, HHS indicated in a blog post that it was open to other definitions of "religious organization." A department official said HHS is reviewing the comments. There is no deadline for a final rule.

Two colleges, concerned that the rule will not be changed, have already taken the fight a step further and sued the government to block its implementation. Belmont Abbey College, a small college founded by Benedictine monks in North Carolina, filed a lawsuit in November; Colorado Christian University followed with its own suit Dec. 21. Both colleges are represented by the Becket Fund for Religious Liberty, a legal advocacy group.

A response is expected by the end of the month, said Hannah Smith, senior legal counsel with the Becket Fund. After the Belmont Abbey lawsuit was filed, other colleges and universities expressed interest in taking legal action, she said, adding that she could not comment specifically on any possible additional lawsuits.

“The mandate forces Colorado Christian to fund government-dictated speech that is directly at odds with its own speech and religious teachings,” that university’s complaint reads. “Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional.”

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, argued the opposite: that a broader exemption is not only unnecessary but unconstitutional. Christian and Catholic colleges and universities accept federal money in the form of loans and grants, and should have to play by the government’s rules, Lynn said.

Denying contraceptive coverage to students because of religious belief isn’t an issue of freedom of religion, he said. “That seems wildly broad, painfully at odds with the reality of good health care in America, and utterly unnecessary under the Constitution,” he said. “What’s not sensible is declaring that every belief you have needs to trump the generally applicable rules.”

The mandate is considered an interim final rule, and the department requested alternate definitions of religious organizations for the exemption, so it could be amended based on public comment. If the rule remains unchanged, the colleges’ complaints will be left to the courts.

“Lawsuits help signal that people mean business, and if they do not change, people are wiling to take legal recourse,” LoMaglio said.

 

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