Dear Secretary Sebelius:
As the bishops representing the Roman Catholic Church in Louisiana, we vigorously oppose the Interim Final Rules on Preventive Services, 76 Fed. Reg. 46221 (August 3, 2011), insofar as they mandate coverage of contraception, sterilization, and related education and counseling. We oppose this mandate not only because it demeans human life by classifying human fertility as a disease but also because it is completely contrary to Roman Catholic teaching that fertility is a gift to be exercised responsibly and that enhances human flourishing, a teaching protected by the First Amendment to the U.S. Constitution.
To begin, we endorse wholeheartedly the detailed comments by the Office of General Counsel of the United States Conference of Catholic Bishops on these regulations filed on August 31, 2011. We also completely agree with the reasoning in Cardinal DiNardo’s September 7, 2011, letter to Congress seeking support for the Respect for Rights of Conscience Act, a bill made even more necessary by these interim final rules that, as presently written, threaten the religious liberty of the Catholic Church.
Turning to specifics, the rules’ requirement to include abortifacient drugs in health-care coverage violates the abortion and non-preemption clauses of the Patient Protection and Affordable Care Act (hereinafter, “PPACA”). Section 1303(b)(1)(A) of PPACA provides that nothing in Title I of PPACA, which includes the provision that deals with “preventive services,” “shall be construed to require a qualified health plan to provide coverage of abortion services . . . as part of its essential health benefits for any plan year.” Because the rules as written require the inclusion of abortifacient drugs, including drugs such as the one commonly known as Ella, they run afoul of the PPACA itself.
By virtue of PPACA’s non-preemption provisions, the rules also violate Louisiana Revised Statute 22:1014. Passed by the Louisiana Legislature in 2010, this law states: “[n]o health plan required to be established in this state through an exchange pursuant to federal health reform legislation . . . .shall offer coverage for abortion services.” “Abortion” as used in this Louisiana law includes the act of using or prescribing any medicine or drug to terminate a pregnancy and cause death to the unborn child. See PPACA § 1303(c)(1)(“Nothing in this Act shall be construed to preempt or otherwise have any effect on State laws regarding the prohibition of . . . coverage [or] funding . . . on abortions.”)
Further, the current form of the rules allows for religious exemption with respect to contraceptive services, but that exemption is unacceptable for at least two reasons. First, the exemption is not mandatory but left to the unbridled discretion of the Health Resources and Services Administration, i.e., the interim final rules state that HRSA “may” provide an exemption. Second, and more importantly, the proposed exemption is so narrowly drawn that it would force Catholic institutions, as a condition of offering health coverage to their employees, to violate the basic tenets of Roman Catholic faith.
The present form of the rule limits a “religious employer” to only those organizations described in specified sections of the Internal Revenue Code that inculcate religious values and that primarily employ and serve persons who share the organization’s religious tenets. This unduly and overly restrictive exemption essentially eliminates their applicability to many Catholic organizations and unfairly and improperly disregards the religious-motivated mission of the Church.
The mission and ministries of the Roman Catholic Church are animated and life-giving and extend beyond the church and school buildings to social, health and educational services. For example but without limitation, these ministries offer to feed and serve the poor, care for the sick, and educate all, not only Catholics, regardless of their religious convictions. The Roman Catholic Church does not limit itself to church services attended by Roman Catholics. Surely, our nation’s founders did not have such a cramped view of the exercise of religious rights as expressed in the First Amendment that a religion must only pursue its ministries in and for its own members but would be foreclosed from serving all in the general public through service and education and from employment of people of different faiths or religions who agree with the Church’s ministries of service. However, such a vision is what is contemplated in the rules’ present definition of “religious employer” and would punish a religion by forcing it to forego its basic beliefs while pursuing its ministry. Such a vision cannot be squared with the First Amendment.
While we recognize that many do not share the beliefs of the Roman Catholic Church, that is even more of a reason for the majority not to impose their beliefs on Catholics under the First Amendment. Indeed, the First Amendment exists precisely to protect churches from the views and desires of political majorities. Similarly, the interim rules should recognize and respect, not undermine, the religious liberties embodied in the First Amendment.
The present Administration has promised, time and time again, that it will provide Americans with health-care choices that do not undermine their closely-held values. Yet, that is not what these interim final rules have done. Instead, they will unduly and unconstitutionally restrict the ability of our Church as an employer and as a provider of life-affirming care to all in need.
The promotion of the present regulations turns a blind eye to a forty-year bipartisan consensus in the federal government to respect the rights of religious liberty and conscience in health-care matters. Sadly, these regulations ignore and nullify this respect. Therefore, we request that the regulatory requirement to cover contraceptive, sterilization, and related education and counseling be rescinded. Alternatively, we request that the regulations be revised to exclude any abortifacient drug and to revise any religious exemption to provide full respect for the religious beliefs of all, including the Roman Catholic Church and its members.
Sincerely in Christ,
The Most Rev. Gregory M. Aymond, Archbishop of New Orleans
The Most Rev. Robert W. Muench, Bishop of Baton Rouge
The Most Rev. Sam G. Jacobs, Bishop of Houma-Thibodaux
The Most Rev. Michael Jarrell, Bishop of Lafayette
The Most Rev. Ronald P. Herzog, Bishop of Alexandria
The Most Rev. Glen John Provost, Bishop of Lake Charles
The Most Rev. Michael G. Duca, Bishop of Shreveport
The Most Rev. Shelton J. Fabre, Auxiliary Bishop of New Orleansv