For over a year now, religious organizations of many denominations have been struggling with a particular provision that was included in the Patient Protection and Affordable Care Act (sometimes called PPACA, ACA, or Obamacare), which Act was signed into law in March of 2010. The provision in question requires all group insurance plans to cover certain preventative medical services without cost-sharing (a deductible or co-payment) on the part of the insured. In 2011, the government agency tasked with implementing the ACA--the Department of Health and Human Services (HHS)-- issued the regulations that mandated which preventive services must be included in all group health plans. For women, these services include contraception, any drug that has been approved by the Food and Drug Administration (which includes abortafacient drugs that destroy or prevent implantation of a fertilized egg), sterilization, and all related counseling services.
Because of the Catholic teaching on the sanctity of life and the mandate to protect life from conception to natural death, these particular services are contrary to the free practice of religious beliefs. Numerous lawsuits have been filed asserting that the mandate will cause employers who hold these religious beliefs to violate their consciences. The HHS proposed a exemption for certain religious employers, but the criteria make it a very narrow field for those who will be exempt. And even if the organization does meet the criteria, it only grants a one-year delay in having to come into full compliance with the mandate.
In order to qualify for the religious employer exemption, an organization must meet all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tents of the
organization.
(3) The organization serves primarily persons who share the religious tenets of the
organization.
(4) The organization is a nonprofit organization [...].
These criteria cannot be met by many Catholic organizations outside of dioceses and parishes. Catholic schools and hospitals often do not hire or serve primarily Catholics in many instances. Religious institutes that have employees, the majority of whom are not Catholics, also do not qualify. Indeed, it has been pointed out that Jesus himself probably would not be able to qualify his ministry under these criteria. For some religious organizations, the only solution will be to stop offering group health insurance coverage. If they have 50 or more employees, they will then have to pay a sizable fine for each employee. But that is beyond the scope of what this blog post is addressing.
With regard to the challenge to the HHS Coverage Mandate, numerous lawsuits have been filed across the country by religious organizations, primarily Catholic, but a few from other denominations as well. Some private employers whose businesses are not religious in nature have also filed lawsuits stating that their individual right to religious freedom is being infringed by the HHS mandate as well. As these lawsuits have worked their way through the various federal courts, decisions have been reported quite regularly. Some cases have been dismissed on various grounds, while some have survived to move on to the next phase in the legal proceedings.
Just yesterday, the U.S. District Court for the Eastern District of New York (a federal court) issued a decision in a case filed by the Archdiocese of New York. It is a minor victory for now in that it merely allows the Archdiocese to proceed with its case rather than dismissing it as requested by Kathleen Sebelius (Secretary of HHS). Sebelius had argued that the Archdiocese's case should be dismissed for two reasons: (1) because the Archdiocese lacked standing to assert their claims because the Coverage Mandate is not causing an imminent injury; and (2) the Archdiocese's case is not ripe because the government is possibly going to change the Coverage Mandate.
In his written opinion, the judge in the case goes through a thorough summary of many of the similar lawsuits that have already made their way to this stage of proceedings. In the end Judge Brian M Cogan sides with the judges who have NOT dismissed the lawsuits.
There are several quotable excerpts from Judge Cogan's opinion.
Quite frankly, ignoring the speeding train that is coming towards plaintiffs in the hope that it will stop might well be inconsistent with the fiduciary duties that plaintiffs' directors or officers owe to their members. As explained above, the practical realities of administering health care coverage for large numbers of employees- which defendants' recognize- require plaintiffs to incur these costs in advance of the impending effectiveness of the Coverage Mandate. That is a business reality that any responsible board of directors would have to appreciate.
Moreover, the First Amendment does not require citizens to
accept assurances from the government that, if the government later determines
it has made a misstep, it will take ameliorative action. There
is no, "Trust us, changes are coming" clause in the Constitution. To the
contrary, the Bill of Rights itself, and the First Amendment in particular,
reflect a degree of skepticism towards governmental self-restraint and
self-correction.
Because of the contradictory
rulings issuing from the federal courts throughout the United States in these cases, the Supreme Court inevitably will have to weigh in and rule on the Constitutionality of the Coverage Mandate. It could come some time next year - at least the Court accepting the case for review could happen that soon. Since the deadline for expiration of the one-year extension is August 1, 2013, many speculate that the Court will take up the case(s) on appeal in the Spring of next year.
We are waiting to see what happens. The outcome will affect the decision-making--and possibly the financial affairs--of many religious organizations and their employees.
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