Monday, February 6, 2012

Obamacare Regulations Prohibit Free Exercise of Religion

As a manager, I generally tried to keep religion out of the workplace. But in recent years I have consulted with religious employers about health care issues.  With religious institutions it is impossible to keep religion out of the workplace – that is their mission and reason for being.

In the summer of 2011 I had clients – institutions associated with the Catholic Church – that had to decide whether to change their employee health care plans for cost-saving reasons or to keep the plans unchanged to stay within the “grandfathering” provisions of the Affordable Care Act (ACA).  In order to control costs for themselves and their employees, these religious organizations decided to abandon any intent of remaining grandfathered.  If my clients had not made these changes, they would have faced double digit premium increases – which would have hit both their employees and the religious institutions themselves, limiting the social services they could provide to their members and to the public.

I told these institutions at the time that it was possible that the HHS regulations under the ACA might mandate birth control and other health care expenses contrary to their beliefs, and they would have to adopt these provisions or stop providing health care as an employee benefit.  Now, HHS and the Obama Administration have done exactly that in the regulations on mandated preventative health services for women.

HHS has mandated that non-grandfathered plans cover all FDA-approved contraceptive methods – including abortificants – and sterilization.  Not only must these services and drugs be covered, but they must be “free” to plan participants.  Although there is a religious exemption, it is exceedingly narrow, limiting the definition of a religious employer to non-profit insitutions that
  • inculcate religious values,
  • primarily employ persons who share its religious tenets, and
  • primarily serve persons who share its religious tenets
Thus, my clients, who serve not only members of their own religion, but also members of other religions and even the non-religious, must violate their own tenets or stop providing health care to their employees and face fines under the ACA that would cause them to have to cease providing the social services that they see as part of their mission.

Requiring religious employers to cover health care expenses that go against their religious beliefs is morally wrong and legally untenable.  Both conservative and liberal commentators have expressed their outrage at the HHS position. 

On the PBS NewsHour on February 3, 2012, Mark Shields said:

what President Obama has done with this policy, and Secretary Sebelius, quite bluntly, is they have taken those Catholics who took a risk to support them, . . . and he has left them out to dry. I mean, he really has, with -- in just a policy that I think is, quite frankly, indefensible.

David Brooks then added:
“When you have the government saying one size fits all, sort of a form of bureaucratic greed, you are going to do it our way, or not, well, then that insults a lot of people.”
The problem with mandates of any type is that they do not enable the diversity of beliefs and practices in our society.  Any government-mandated benefits risk that problem, and come across as paternalistic and elitist.  And now, unconstitutional.  It would be better to permit the market to develop a variety of health care plans that address the needs of various segments of our society.

The First Amendment of the Constitution provides in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  This is one of the founding principles of our nation.

Yet the Obama Administration has now said that Catholic and other religious institutions must either offer health care products and services to employees that violate their beliefs or violate the law and pay prohibitive fines.  Or close their doors.  How can this not be interpreted as prohibiting the free exercise of religion? 

And it comes perilously close to establishing the “Church of Obama,” as he permits no meaningful deviation from his regulations to those who believe differently than he does.

Regardless what you think about Obamacare generally or about birth control and abortion, do you think religious institutions should be forced to pay for benefits that are contrary to their beliefs?


  1. Well Sara, when you have a dictator, he tends to dictate, unfortunately.

  2. All healthcare benefits are elective by the covered party. Just because the healthcare plan covers fixing bunions, the patient doesn't have to undergo the surgery to have bunions fixed. In the same way, the faithful in the Catholic church don't have to use the covered contraceptive measures. The church should depend upon their teachings taking hold and not on withholding benefits to enforce them.

    What will we have next, Price Chopper demanding that the insurance they provide their employees not include coverage if the employee gets sick (ex. heart attack) inside a Hy-Vee since it's a competitor and the Price Chopper employee shouldn't be there?

    The Catholic church doesn't want to provide insurance with birth control coverage to Catholic hospital and Catholic college employees, for example, many of whom aren't Catholic. If they do that, they're shoving their beliefs down the throats of people outside their religion, just because they happen to work for an entity associated with the church. What about the rights of those employees to the freedom of their religion, when their beliefs allow contraception? Is it better that instead the Catholic church be allowed to violate their beliefs?

    When the Catholic or any other church is operating a business, they should be required to operate under the rules and regulations that other businesses do.

    They'll probably protest that it's a "non-profit" institution, but the profits are going to the church.

    1. C.M., thank you for weighing in.

      You make two main points. You first argue that employees of the employees of the religious institutions covered by the new HHS mandate do not have to elect to use birth control, abortificants and sterilization services. However, just because use of these products and services is voluntary by each employee doesn’t mean that the religious institutions I mention aren’t paying for the benefit.

      Given the way the health insurance market works – both today and in the future under the ACA – employers subsidize their employees’ health care. In fact, the ACA also mandates that employers subsidize their employees’ health care costs by a substantial amount. That means that these religious organizations will pay for their use of products and services they believe are immoral if any employee chooses to use these services (and, given the underwriting practices of most insurers, probably some cost even if no employee has yet chosen to use these services). Under the ACA, there is no way to keep the employer from paying some cost for the mandated benefits.

      Your second point is that the employees are being forced to accept the Catholic Church’s views on these products and services. No one is forced to work for these religious institutions. Their employees choose to work for these institutions knowing the position of the Church. They can choose to find other employment, or they can choose to find other health care coverage while remaining employed by the religious institution.

      By contrast, the religious employers have limited options under the ACA. They can either pay for products and services that violate their beliefs, or they can pay substantial fines when they refuse to provide the mandated coverage. Or they must cease providing employment and social services to members of other faiths.

      Moreover, the unconstitutionality of the ACA mandate that religious employers provide these products and services is based on the impact of the mandate on the religious institution itself. Neither you nor I nor the employees of these organizations get to decide what their beliefs should be; the Constitution permits religions to make these determinations themselves. That’s what “free exercise” is. Under the First Amendment, the government is not permitted to make laws that infringe on a religious institution’s free exercise of its beliefs.

      This is only the first of many likely issues to rise under the Obamacare mandates. What will happen when Jehovah’s Witnesses are required to cover blood transfusions, which are against their beliefs?

      The underlying problem is the government’s involvement in employment-based healthcare in the first place. We would be better off divorcing healthcare from employment, and letting a variety of independent health care plans develop, with certain regulations, but without detailed mandated coverages. Let consumers choose which healthcare coverage suits their needs best, as they do auto and homeowners insurance. If some people cannot afford their healthcare premiums, the government can provide direct subsidies.

      But given the healthcare environment we have inherited, which unfortunately is firmly rooted in employment, the least we should expect is that the government will not require religious employers to violate their religious beliefs.

    2. Sara,

      My main argument is when a religious organization is running a business with no significant difference from their competition, they should follow the rules and regulations and not hide behind being a “religious institution”. There is an unreasonable melding of the term “religious institution” with the Catholic Church, the richest institution of any type in the world. Running a hospital is a business, they may claim non-profit for tax purposes, but the profits go to increasing the church’s wealth.

      That tax status should be examined in the light of the Catholic church’s lobbing efforts against the ACA. The Catholic church, and every religious organization, is afforded a tax-exempt status from the IRS under section 501(c)(3).

      To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual.

      In addition, it may not be an action organization, i.e., it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.

      They certainly are pulling out the stops to influence this piece of legislation.

      You appear to be advocating employment discrimination based on religion. One of the options you suggest to resolve the issue is “Or they must cease providing employment and social services to members of other faiths.”

      You assume that non-Catholics hired to work for an institution like a Catholic hospital “choose to work for these institutions knowing the position of the Church.” I would guess that there are many who don’t know all of the Church’s positions on secular matters like contraception. After all, the bible doesn’t speak to contraception.

      I certainly am not familiar with all of the Lutheran or the Baptist Church’s positions. Why would you assume that a Lutheran or member of another denomination is familiar with the Catholic Church’s position? In most cases, members of other denominations don’t care as long as it doesn’t affect them. Now that the Catholic Church has unlimbered its lobbying muscle, they will become aware of its affect on them.

      The Catholic companies you consulted with needed to have you point out the ramifications of the law on their insurance coverage. How do you expect their employees to have been aware of its potential affect?

      Your arguments regarding “religious employers” open a completely new question. Should Catholics running other companies (automakers, electronics companies, etc.) be allowed to make the same argument that providing insurance that includes contraception violates their religious beliefs? There’s ample history to support it.

      We are in agreement that the ties between healthcare and employment should be sundered. There are more reasons for it than the affect of the ACA. Rarely do international companies, which US companies compete with, have healthcare expenses built into their product cost.

  3. C.M.,

    The institutions I refer to are each separate non-profit corporations under the laws of the states where they are incorporated. They must comply with all non-profit laws of those states. There are no profits to distribute or to increase any person’s or church’s wealth.

    Perhaps we should leave this at what we agree on: We wouldn't be having this argument if health care were not linked to employment.

  4. For a good description of the underlying problem of linking health care with employment see, The Wall Street Journal, February 9, 2012, The Real Trouble with the Birth-Control Mandate, by John Cochrane, at