Bench Memos

Religious Liberty Remains Under Attack in Latest HHS Guidance

The latest administration proposal does nothing whatsoever to help businesses like Hobby Lobby or Dominos Farms. All for-profit companies are subject to the contraception/abortion mandate, just as before. They will have to seek legal protection from the courts, and in some cases (at least) will likely receive it from the Religious Freedom Restoration Act..

The administration has reduced the criteria for exempt “religious employers” from four to one. But that one is a curious choice. It is a test presently found in the tax law. It was not conceived, nor has it been applied to date, with any consideration of the issues it is now conscripted to handle, namely, the complicity of conscientious objectors in contraception and abortion. This tax provision is, moreover, unsettled in its meaning and is now going to be tested by a new and wholly unanticipated set of questions and claimants. Gauging the net effect of the new proposal is therefore hazardous. But one can say with considerable confidence the following: 1) religious hospitals are, as before, not exempt “religious employers”: 2) religious charities are likely not exempt, too, unless they are run out of a church or are very tightly integrated with a church. So, a parish or even a diocese’s Saint Vincent DePaul operations would probably be an exempt “religious employer”, whereas Catholic Charities, which are incorporated separate from the Church, run by its own executives although ultimate answerable to the local bishop, and funded mostly by the government, would not be; 3) the new proposal makes it more apparent than it was before and makes it very likely that parish grade schools are exempt “religious employers. Catholic high schools are a different matter. Some might qualify as “religious employers.” Most probably will not.

It is certain that Catholic colleges and universities do not qualify as exempt “religious employers.” The new proposal includes, however, a revised “accommodation” for at least some of these institutions. The proposal refines the administration’s earlier efforts to somehow insulate the colleges and universities from immoral complicity in contraception, mainly by shifting at least nominally the cost and administration of the immoral services to either the health insurance issuer (think Blue Cross) or to the plan administrator (for self-insured entities, such as Notre Dame). This proposal adds some additional layering to the earlier attempts to insulate the schools, and thus makes the question facing the colleges and universities more complex. It looks to me, though, as if nothing of decisive moral significance is included in the new proposal.


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