WASHINGTON -- Even with a new federal proposal that third-party administrators pay the costs of contraceptives for religious employers who object to the coverage, the health reform law's contraceptive mandate "remains radically flawed," according to the U.S. bishops.
The bishops made the comments in an internal memo March 29. A copy of it was released Monday to Catholic News Service.
The memo came in response to a rule proposed by the U.S. Department for Health and Human Services in a 32-page document that was published March 21 in the Federal Register. HHS has proposed new ways for religious organizations that have moral objections to providing free contraceptives to their employees to comply with the requirement.
Among the suggestions are having the costs covered by a "third-party administrator" of a health plan or "independent agency" that receives funds from other sources, such as rebates from drug makers.
Before it makes a final decision on the proposed ruling, the Obama administration is seeking public comment until June 19.
In their memo, the bishops said the details of the proposal are "both tentative and complex and demand further study." But based on an initial analysis, they said, the proposal had "the same fundamental issues" they had addressed in a March 14 statement titled "United for Religious Freedom."
The bishops said they would be commenting on the HHS proposal in more detail and inviting others to add their comments as well. The memo also said representatives from the U.S. Conference of Catholic Bishops will continue to meet with administration officials to discuss the new proposal.
They said under the new proposal, the government's four-part test to determine which religious organizations fit the mandate's religious exemption remained unchanged.
To be exempt from the requirement, a religious organization "has the inculcation of religious values as its purpose; primarily employs persons who share its religious tenets; primarily serves persons who share its religious tenets; and is a nonprofit organization" under specific sections of the Internal Revenue Code.
"The government has no place defining religion and religious ministry," they said, adding that "government's attempt to do so here is unconstitutional."
Even if the proposed rules would grant for some organizations a more limited form of religious freedom, "we contend that we already have that freedom in full and do not need to receive it as a 'grace' from the government," the bishops said.
Fundamentally, they noted, the HHS contraceptive mandate "still forces us to act against our conscience and teaching," particularly because the new proposal does not modify the inclusion of sterilization and contraceptives, including some abortifacients, in the "preventive services" mandate.
"Those falling outside the government definition of 'religious employer' will be forced by the government to violate their own teachings within their very own institutions," the bishops said. "Whatever funding and administrative mechanisms are ultimately chosen, it remains that many deeply religious institutions and individuals will be forbidden to provide even their own employees -- or, in the case of educational institutions, their own students -- with health coverage consistent with their values."
In announcing the HHS proposed rule, the Obama administration also said most college student health insurance plans will have to include free contraceptive coverage. Although the policy will apply to all colleges and universities, religiously affiliated institutions will be given an additional year to comply with the mandate.
Colleges that have self-insured student health coverage plans will not be required to offer free contraceptive coverage.
The proposal seems intended to "lessen the degree of 'cooperation in evil' required of nonexempt religious organizations," the bishops said in their memo. "But they do so by depriving these organizations of the ability to determine their employee and student benefits in accordance with their faith and moral teaching."
"It must also be very clear that the church, together with other religious groups and faith-based entities, will simultaneously continue to seek relief from the legislature and redress in the courts," the bishops said.
On Jan. 20, HHS announced that the federal government would require all employers, including religious employers, to provide no-cost coverage of all contraceptives approved by Food and Drug Administration as part of preventive health services for women. Only houses of worship are exempt.
In a revision announced Feb. 10 and published Feb. 15, President Barack Obama said religious employers could decline to cover contraceptives if they were morally opposed to them, but the health insurers that provide their health plans would be required to offer contraceptives free of charge to women who requested such coverage.
His announcement did not answer how the mandate applied to self-insured religious employers, but the newly published proposal reinforces mandated contraceptive coverage at self-insured Catholic hospitals and social service agencies.
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