Religious liberty questioned before Supreme Court

In some corners of the Catholic community, the Affordable Care Act contraceptive mandate is perceived as so onerous that it sets up a confrontation with the state comparable to those that once produced martyrs. The matter is so grave, others have said, that failure of the Supreme Court to overturn the requirement could result in the shuttering of the church's social services.

Dire predictions aside, should the court rule against it, the church would have significant precedent to fall back upon showing that Catholic entities have survived while providing the same services in health care plans that they have long opposed, if under protest.

The Supreme Court will hear oral arguments March 23 in Zubik v. Burwell, which consolidates seven cases of various religious schools, colleges, hospitals and charities, notably the Little Sisters of the Poor Home for the Aged in Denver. The case is the latest phase of the four-year dispute between the Catholic church, the loudest and largest of the religious groups opposing the mandate, and the Obama administration over the Department of Health and Human Services' requirement under the Affordable Care Act (also known as "Obamacare") that insurance plans offer all contraceptive services. While the administration, in the face of opposition, has made several accommodations that allow religious groups to remove themselves from any direct provision of insurance for contraceptives, some still argue that even taking the steps to avoid the requirement amounts to complicity with providing drugs and devices that church teaching considers evil.

Submitting an opt-out notice makes religious institutions "complicit in a grave moral wrong," Bishop David Zubik of Pittsburgh, the lead petitioner, told his hometown newspaper.

In places like Hawaii and Vermont, however, where the church populations are too small to self-insure and the state requires that all such services be provided, the church has long contracted with commercial plans that provide the full range of contraceptive services. In New York, the archdiocese's own health plan, Fidelis Care, operates as a commercial entity and, on its online presentation of drugs available this year through the plan, lists more than two pages of contraceptives, including intrauterine devices (IUDs). The document with the list begins with this note: "This document has information about the drugs we cover in the New York State of Health metal level and essential plan products." ("Metal level" refers to tiers of coverage, from bronze to platinum.)

The nub of the complaints being pursued in the most recent case before the high court, Zubik v. Burwell, is not whether Catholics at large find the mandate contrary to their personal religious convictions. Most Catholics are not actually up in arms about the mandate. Surveys show that for decades before the Affordable Care Act, the vast majority of the 70 million Catholics in the United States have consistently ignored or openly rejected the church teaching about artificial contraception.

Initially, the objection to the mandate rested on the fact that as it was presented in 2012 as part of the Affordable Care Act, only churches and not related institutions and ministries were exempt from the requirement. Hundreds of thousands of Catholics joined the bishops in opposition to that distinction. It was seen as dangerously constricting the definition of a religious body, and thus a violation of religious liberty.

In the time since, the nub of the issue has shifted to the concept of cooperation with evil, a moral construct that can be difficult to pin down, dependent as it is on personal intent and whether one's cooperation is "formal" (intending to support and engage in an evil act), or "material," a less direct engagement with an evil end and for which there are varying degrees of cooperation. According to an online paper of the National Catholic Bioethics Center, the principle of cooperation in evil "has been developed in the Catholic moral tradition as a guide to assist with the identification of different types of cooperation and the conditions under which cooperation may or may not be tolerated." It is a principle, according to the center, that acknowledges "it would be impossible for an individual to do good in the world, without being involved to some extent in evil."

At the same time, the principle is not intended to provide an easy back door out of moral conflict. The questions in the current conflict seem to center on whether the mandate is a serious threat to religious liberty and whether compliance with the accommodations the administration makes to religious groups still constitutes an unacceptable level of cooperation in evil.

The Becket Fund, a powerhouse law group that has represented a variety of religious and faith groups in religious liberty proceedings, has taken up the case against the mandate for the Little Sisters of the Poor, an order that specializes in care for elderly poor around the world. The order is one of a number of religious groups and individuals petitioning the Supreme Court. The group contends that the mandate "forces the Little Sisters to authorize the government to use the Sister's employee healthcare plan to provide contraceptives and abortion-inducing drugs -- a violation of their faith -- or pay massive fines, which would threaten their religious mission."

That is understandably loaded language from the sisters' lawyers. In reality, the Little Sisters and other religious groups objecting to providing contraception need only write a letter to the Department of Health and Human Services to notify the department of its objections.

Whether that is a level of cooperation in evil that would threaten a religious mission is the big question. Attorney Douglas Laycock, a law professor at the University of Virginia and a leading authority on -- and advocate for -- religious liberty, reasons that the arguments of mandate opponents in Zubik v. Burwell may actually put religious liberty at risk.

Regarding the argument that the notification of HHS forces the government to use the religious groups' insurers to provide the offending services, Laycock writes in a March 21 op-ed piece in The Washington Post: "Even if employers were required to do absolutely nothing, the insurance companies would still use the 'infrastructure' of any insurance plan that the employers voluntarily offered to their workers" to provide contraceptives. "The religious objectors demand a right to control how the government regulates insurance companies."

He contends that a further demand of religious groups -- that an exemption be granted to all conscientious objectors to the mandate -- could pose "a mortal threat to an essential and widespread source of protection for religious liberty." He notes that there are "thousands of specific religious exemptions in U.S. law" and if such exemptions begin to be applied in an "all-inclusive" manner, lawmakers may cease enacting any religious exemptions and "they will start repealing the exemptions they have already enacted."

Beyond the theoretical

Outside of current court battles, Catholics have wrestled for some time with the reality of cooperation in evil regarding health insurance issues and arrived at a variety of conclusions.

For instance, employees of ArchCare, a range of continuing care facilities of the Archdiocese of New York, who are members of 1199 SEIU United Healthcare Workers East, receive health insurance that includes contraceptive services. According to a 2013 story in The New York Times, the insurance covers about 3,000 workers. While the archdiocese does not pay directly for coverage, according to the story, it contributes, like other employers, to the union's National Benefits Fund and the fund, in turn, pays for the coverage.

When asked about the plan recently, archdiocesan spokesman Joseph Zwilling emailed a statement he made at the time disputing the story's equation of the union coverage with the HHS mandate "that improperly attempts to define the church's religious ministry and could force religious employers to violate their conscience." He drew a difference between a labor union, which is not subject "to the same constraints as the federal government" and the "government's violation of the archdiocese's federal rights."

In either case, however, he said "the Archdiocese has objected to the dilemma of choosing between providing health care to employees or violating its sincere religious beliefs in both instances." ArchCare did not exist, he said, when the contract with the union was finalized. When ArchCare was formed, he said, well before the tenure of current Archbishop Timothy Dolan, the archdiocese had no other option than to pay into the fund if it wanted to provide health care for its employees.

In a similar way, Fidelis Care, the marketing name for the New York State Catholic Health Plan that is commercially available, was forced by state law to offer a range of contraceptive services. According to Lois Uttley, director of Raising Women's Voices-NY, an initiative working to ensure implementation of the Affordable Care Act, the state has accommodated Fidelis' objections to providing birth control and abortion in several ways, depending on whether the coverage is in the Medicaid Market or through private health plans sold through the state marketplace. In one instance, they use a different insurance card for contraceptive services and abortions (covered by Medicaid in New York). Those providers are paid for by the state. In other circumstances, third-party providers are used.

"Fidelis enrollees have no abortion coverage at all," wrote Uttley in an email response to questions. "To get contraception for birth control purposes … enrollees are referred by Fidelis customer service representatives to a separate third-party independent practice association called United Life. This network of providers does not include any Planned Parenthood clinics, meaning that the usual source of family planning services for many women is no longer an option."

In an essay emphasizing the severity of the threat to religious liberty posed by the HHS mandate, Daniel Philpott of the Religious Freedom Project at Georgetown University's Berkley Center, places the current debate in context of a struggle that has occurred "over many centuries" between church and state -- the church's "right to give witness to the truths that they believe."

While no one expects to see martyrs over the issue, he writes, institutions objecting to the mandates are "having their religious freedom curtailed more sharply than religious freedom has been curtailed at any other time in the history of the republic." Consequently, he said, "they experience an injustice that resembles in form if not in magnitude those injustices that historically have produced martyrs."

Some members of the Catholic hierarchy, including the late Cardinal Francis George of Chicago, who said the church may have to shut down its ministries if the mandate were not revoked, and Archbishop William Lori of Baltimore, have viewed the mandate as among the highest threats to religious liberty in the United States. Lori, particularly, has organized elaborate programs, including an annual "Fortnight for Freedom," with the mandate a major target of the demonstrations.

In many states that require commercial health insurers to provide contraceptives, dioceses often self-insure, running their own not-for-profit insurance agencies and thus avoiding state requirements. In those instances, the plans are most often administered by familiar commercial entities that charge a fee. That arrangement, however, might raise in a different way the whole question of cooperation in evil, since the administrative fees go to commercial insurers that, in other circumstances, provide objectionable prescriptions and services.

Should the court ultimately rule in the government's favor, the church might turn to a place like Hawaii, where the diocese has worked with a commercial firm in a way that highly resembles the Affordable Care Act accommodation. The diocese does not inform employees about contraception coverage. Instead the contact is made via a form letter to insurance subscribers informing participants that the insurance company would provide separate payments for contraceptive drugs and devices.

The arrangement is engaged with regret. In a 2012 letter to his flock, Bishop Larry Silva of Honolulu said the church in Hawaii was hoping for a federal solution to the situation. "Sadly, here in Hawaii, because of the pre-paid health care law which has been in effect for over a dozen years the church has not been given any choice about accepting abortion, contraception, sterilization and in vitro fertilization in the insurance package. We cannot legally deny our employees health insurance coverage, nor would it be just to deny it, so these objectionable services are included."

In both Hawaii and Vermont, which has a similar requirement, church officials must rely on the persuasiveness of church teaching and the consent of the faithful to those teachings.

The picture is also mixed when it comes to higher education. "The bottom line is that this is a complex issue for our institutions that defies easy resolution," said Paula Moore, associate vice president of communications for the Association of Catholic Colleges and Universities.

In more than two dozen states, she said, state laws require inclusion of contraceptive services, but many permit exceptions based on religious beliefs. "In addition," she said, "some women's institutions confront complex politics among their alumnae on these issues." In other instances, she said, colleges are self-insured and, like dioceses in similar circumstances, can avoid state requirements.

[Tom Roberts is NCR editor at large. troberts@ncronline.org.]