February 6, 2012

On January 26, NETWORK issued a statement taking issue with the recent decision by the Department of Health and Human Services to require that insurance plans provided by most faith-based employers cover the cost of all FDA-approved contraceptive devices with no co-pay. Since then, Sister Carol Keehan, President and CEO of the Catholic Health Association, has also issued a strong statement in Catholic Health World. Because we continue to get feedback on this issue, we are providing additional information in this February 6 update.

Background

Many of our members have written to us and asked questions related to the difference between the Affordable Healthcare Act and the Final Rule announced by DHHS Secretary Kathleen Sebelius on January 20, 2012.

A federal law is created by Congress. Unless otherwise specified in the law, a new federal law supersedes state laws and prior federal laws on the same or a related matter. Typically, federal laws must be repealed by Congress and it takes a long time. A federal law may be called a law, statute or Act.

On the other hand, regulations are typically created by a particular Department or governmental agency that has been given authority to define the generalities in a law. The authority is delegated to them by the particular law or by another Congressional allocation of power. It is not uncommon for Congress to leave the details of an Act to the Secretary of one of the Executive Departments. The regulations dictate to the affected people which behaviors and actions they must perform in order to be found in compliance with that law. In short, the Department often determines, by regulation, the nitty-gritty details of a law. The regulations have a greater flexibility than a federal law because a smaller Department can change the regulation, as opposed to an Act of Congress.

On March 23, 2010, President Obama signed into law the Affordable Care Act (ACA). This is a federal statute that provides for comprehensive health insurance reforms that will unfold in the next four years. Most deadlines for implementation of benefits are slated for 2014. The law was designed to meet the needs of the 30 million presently underinsured or uninsured citizens.

Specifically, the law

• reforms the most negative parts of the private health insurance industry
• corrects numerous deficits in public health insurance programs
• extends healthcare for young adults;
• ensures continued care for children regardless of long term or prior illnesses
• balances the national medical spending against anticipated Medicare spending
• gives broad choices to healthcare insurance consumers
• mandates individual coverage for all Americans by 2014.

Finally, and presently the cause of much public strife, the ACA requires all employers who choose to provide insurance for their employees to provide insurance that covers a mandated minimum list of essential services. Under the ACA, Congress delegated the identification of the specific services to be included in the list of mandated coverage to Kathleen Sebelius and the Department of Health and Human Services.

On January 20, 2012, Kathleen Sebelius, Secretary of the Department of Health and Human Services, announced that the insurance plans provided for women by most employers must cover the cost of all FDA-approved contraceptive devices with no co-pay. This includes coverage for the IUD, sterilization procedures and ella, “the morning after pill.” Churches and other places of worship would be exempt from having to cover contraception for their employees if they morally object to the practice. However, all other organizations will have to comply with the new requirement by August 2013, even if they are religiously affiliated. While the right of conscience afforded the direct care providers remains intact, the right of conscience of the sponsors of religiously affiliated organizations is categorically denied.

Pursuant to the ACA and the DHHS’s Final Rule, no healthcare institution is required to offer any medical procedures that they have previously refused to do. No form of surgical abortion must be provided or insured. That is not the concern here.

The issue is solely a right of conscience violation because it pertains to mandated insurance coverage that violates the conscience of those being forced to pay for the insurance. To bring other issues into play merely dilutes the valid argument.  The “right to choose” should include the right to say no to objectionable practices. Otherwise, it is not a matter of choice.

NETWORK strenuously calls upon the administration to reconsider this rule and its implications. We implore the DHHS to engage in an open discourse regarding the seemingly unanticipated consequences of this deprivation of the right of conscience of religious persons who own, operate and/or sponsor institutions of higher education, healthcare and social work.