Catholic hospital executives are pondering ways to comply with a new federal requirement to provide their employees with contraceptives the church considers unethical, while religious organizations examine ways to challenge the rule before it takes effect for them in 2013.
Two small religious colleges have already filed federal lawsuits in Colorado and Washington based on the interim final rule that was unveiled last year, and a spokeswoman confirmed that the U.S. Conference of Catholic Bishops in Washington is evaluating its legal options.
“It's too early to say what kind of strategy the USCCB will decide on. There are many options. There is a legislative option, as well as a legal option. No decision has been made,” said Sister Mary Ann Walsh, spokeswoman for the bishops conference. “It's a freedom of religion issue. It's the government making incursions into the role of the church. It's like the government jumping into the sanctuary and telling us what to teach.”
The Patient Protection and Affordable Care Act requires insurers to provide basic preventive-care services to beneficiaries without charging co-payments or deductibles, although the law allowed the HHS to define those benefits in the future.
Last July, the Institute of Medicine recommended that all Food and Drug Adminstration-approved contraceptives—including regular hormone-based treatments and emergency “morning after” pills—should be deemed preventive care and offered by insurers without patient payments. HHS' interim final rule released the following month did just that, but it also raised the prospect that that the Obama administration would carve out exemptions for religious employers that consider contraceptives and abortifacients immoral.
On Jan. 20, HHS Secretary Kathleen Sebelius announced the policy that will be included in the upcoming final rule, which will allow exemptions only for not-for-profit organizations whose purpose is “the inculcation of religious values” and that primarily employ and serve people who share its religious tenets.
Critics say the definition clearly does not include religious hospitals, schools and social service agencies that employ and serve many people who do not share their religious beliefs. Federal officials said in the text of the interim final rule that the definition of “religious organization” was based on regulations in most states that exempt faith organizations from similar insurance-coverage rules.
“We are befuddled that this administration has taken a fundamentally hostile view toward religion,” said Rev. William Grogan, an attorney and college lecturer who chairs the Chicago Archdiocesan Bioethics Committee. “We view all of the institutional activities of our sponsored ministries, in healthcare, social service and education at all levels, as part of our basic religious witness, without exception.”
A written statement from Sebelius said that after the administration considered public comments on the interim final rule, it added an option for not-for-profit employers who don't currently provide contraceptives to get a one-year extension delaying enforcement of the rule. That would delay implementation of the rule from Aug. 1, 2012, to Aug. 1, 2013.
“This decision was made after very careful consideration, including the important concerns some have raised about religious liberty,” Sebelius said in the statement. “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.”
Some critics scoffed at the idea that religious employers would use the extra year to get comfortable with the idea of allowing unethical drugs to be prescribed to their employees. However, Michael Panicola, vice president of ethics and social responsibility for SSM Health Care, said SSM officials plan to apply for the one-year extension because the system will need time to prepare, if the law is not struck down or amended by Congress.
Beneficiaries who want to access forbidden contraceptives would have to get them elsewhere, he said, which could mean the system will have to find ways to contract with other providers for that care. “They're going to have to go out of network, because we can't provide those services,” Panicola said. “If we have to comply with the rule, we will have to reorganize our structure for providing coverage.”
Archbishop Timothy Dolan, president of the bishops conference, portended a more extreme option in a Jan. 25 editorial in the Wall Street Journal, writing that Catholic employers may have to stop providing healthcare coverage to their own employees altogether.
“I know several bishops have said that,” Panicola said. “It is something that we would be very hesitant to do.”
Sebelius' statement on the final rule noted that studies have found birth control carries health benefits for women and is the most commonly taken drug by young and middle-aged women in the U.S.
But Grogan, the bioethics chairman in the Chicago Archdiocese, said beneficiaries seeking access to common birth control methods have long known they're not available through Catholic employers. “If women want those types of medications, they shouldn't seek employment with organizations which are publicly known to be opposed to their use.”