The National Catholic Review

Notre Dame has now joined a number of other Catholic institutions in filing suit against a new mandate from the Department of Health and Human Services that may require the inclusion of contraceptive services in health plans beginning in August 2013 at religious institutions such as Notre Dame and other Catholic colleges and universities. Notre Dame President Father John Jenkins, C.S.C., who took a lot of heat for his decision to invite a recently elected Barack Obama to speak at Notre Dame's commencement in 2009, makes the case for the decision in a message to N.D. students and alumni:

Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. Many of our faculty, staff and students--both Catholic and non-Catholic--have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents. We do not seek to impose our religious beliefs on others; we simply ask that the Government not impose its values on the University when those values conflict with our religious teachings. We have engaged in conversations to find a resolution that respects the consciences of all and we will continue to do so.

Jenkins adds:

This filing is about the freedom of a religious organization to live its mission, and its significance goes well beyond any debate about contraceptives. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately leads to the undermining of those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.

Notre Dame thus joins a group of 42 Catholic dioceses, schools, hospitals, social service agencies and other institutions that filed suit in federal court on May 21 against the mandate. As Grant Gallicho at DotCommonweal points out, however, it's not clear that the mandate would apply to many of the institutions involved in the suits; dioceses and Catholic elementary schools are already exempt and many others may successfully apply for exemption before the mandate kicks in 15 months. Here's Grant again arguing that the H.H.S. exemption to the mandate, as a new comment period continues, is already broader than some critics at first believed. In the meantime, apparently discussions will continue between religious employers and the Obama administration even as the suits begin.


Michael Barberi | 5/23/2012 - 6:00pm
What about the Church of Scientology, the Jehovah Witnesses and other Churches where certain things, e.g., blood transfusions, go against their religious beliefs? Will they be allowed to excluded these services as a covered medical expense in their health plans?

It is indeed a slippery slope especially when a Caholic institution employs non-Catholic employees (and most of their employess are non-Catholic). Is the remedy, "don't work here if you don't like our healthcare plan"? 

While the Church will spend millions of dollars on a legal suite because the contraceptive mandate goes against their religious beliefs, YET, the Church spends little money on communications to remedy the contradiction of the "Silent Pulpit" when it comes to making known and enforcing their doctrine of contraception. Millions of young married Catholics do not confess contraception as a sin, and priests and bishops do nothing to remind these Catholics that receiving the Eucharist without reconciliation and absolution is a sacrilege. They turn a blind eye, a deaf ear and a closed mouth to those they know are committing an intrinsiic evil act (the Church's position, not mine). When it comes to contraception, they never mention sin, conscience, reconciliation and absolution, and sacrilige in any format...verbal or written..once a month or once a year. The silence is deafening.

I would like to see the same virtue of courage and bravery, exhibited in this confrontation with Obama, exercised to resolve the contradiction and inconsistency between the doctrine of contraception and pastoral practices...between the word and the deed. Where are the bishops and their rightiousness here?

Thomas Rooney OFS | 5/23/2012 - 8:34am
OFF-TOPIC to Rick...

Just to avoid confusion - you addressed me as "Fr. Rooney".  I'm not a priest.  The OFS stands for Ordo Franciscanus Saecularis.  I am a professed Secular Franciscan; husband, father of 2, servicing 4 cats. :)

Pax et Bonum!
Rick Fueyo | 5/22/2012 - 8:37pm
"Obamacare has 425,116 words, and the implementing regulations were an additional 2,163,744 (as of Feb), and growing. So, as of February 2012, we have over 2.5 million words governing life-and-death decisions and interfering with our religious and economic freedoms. Hence, my use of the term “monstrosity.” By the way, the US constitution has a mere 4,400 words.

The size of the “law” in itself is an attack on our freedom as even informed intelligent citizenry can’t agree on what is in it, making us the subjects of lawyerly aristocracy."

By that reasoning, please join your local Baptist Church. 

The 10 Commandements has 401 words, Christ's great commandment in Mark (its longest formulation in the synoptics), has 55, and that's in Olde English.

There are 1762 separate canons in the canon law.  You support an aristocratically oppressive Church.  Or maybe not.  Maybe its is just a mindless Fox talking point, devoid of substance.
Tim O'Leary | 5/22/2012 - 6:49pm
Rick #23

You are right that counting the pages may not give a good picture. So, how about the number of words? I did some searching. They can be got at

Obamacare has 425,116 words, and the implementing regulations were an additional 2,163,744 (as of Feb), and growing. So, as of February 2012, we have over 2.5 million words governing life-and-death decisions and interfering with our religious and economic freedoms. Hence, my use of the term “monstrosity.” By the way, the US constitution has a mere 4,400 words.

The size of the “law” in itself is an attack on our freedom as even informed intelligent citizenry can’t agree on what is in it, making us the subjects of lawyerly aristocracy. Fred’s #20 Patrick Henry quote is apt “Give me Liberty or give me Death!” It is too big, too invasive, too expensive, and too susceptible to ideological impulses of any present and future administration. Throw it all out and start again. We can do better.
C Walter Mattingly | 5/22/2012 - 4:15pm
This statement, as composed by Fr Jenkins, is huge.
Fr Jenkins, not one to cowtow to the opinions of others, took a lot of grief from the bishops for inviting President Obama to address Notre Dame, which was seen by many to imply his support of Barack Obama at a difficult moment. In return, President Obama committed to take very seriously, meet more than halfway, so to speak, the Church in its expression of its beliefs and exercise of its mission. In fact, as in his unyielding assault against providing vouchers to needy inner city children to attend better schools, his attempt to reduce financial support to the Church by restricting deductions for charitable contributions, and here overriding the free expression of the Church's beliefs in its endeavors, the president did not honor that commitment.
Apparently Fr Jenkins has had enough.
Equally valuable to Notre Dame joining this suit is the actual wording of Fr Jenkins' response, clearly delineating what is and isn't at issue. President Obama was advised by his own Catholic VP Joe Biden not to proceed on this front and was excoriated by Paul Shields and other liberal democratic Catholics who solidly supported him on virtually every issue. He shouldn't be surprised at this reaction to his throwing down the gauntlet.
Alfred Chavez | 5/22/2012 - 3:49pm
Those who say that Fr. Jenkins words are ''pure hysteria'' (#3) or ''hyperbole'' (#7) would no doubt have said that Patrick Henry was out of his mind when he addressed the Virginia legislature, and ended with-''Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!''
Vince Killoran | 5/22/2012 - 3:03pm
"If Jenkins didn't cave to near-unanimous outcry from the Bishops with respect to Obama's honorary degree, why do you know assume he's just become a tool for the Bishops?"

Fr. Jenkins has faced enormous pressure since the honorary degree flare-up from conservative Catholics, including ND alumni (especially w/local bishop Kevin Rhodes at the helm).  I don't agree w/his decision to bring the university into the litigation but I understand how it was a strategic move to placate these forces.
Michael Barberi | 5/27/2012 - 2:22pm

This will be my last blog on this subject.

You are basing your judgment on your interpretation of fiduciary responsibity for a legal and regulatory perspective. Every benefit has a cost and this cost is often the up-front cost, with hope-for savings to come. Most health plans cover contraceptives, but some do not. You cannot narrow the definition of fiduciary and isolate a specific service, then say Ah Ha, give me a good reason for not including contraceptive coverage in you plan Mr. Employer or I will bring you to court for breach of fiduciary responsibility. For anyone with experience in the benefits industry such a situation is absurd. I ask you, what about the plan that is superior to other plans in an industry but does not cover the lack thereof a breach of fiduciary responsibility? What is an employer includes contraceptive coverage in their plan, but raises the annual deductible from $250 to $400? Both deductibles are reasonable and much less than the annual deductible in most employer plans. Would such a move be a breach of fiduciary repsonsibility?

As you can understand there are many complex factors that enter such decision-making, including the fact that the profits of the employer is down significantly and cost cutting, layoffs, and benefit reductions are the norm. No one cries "breach of fiduciary duty" in these and other cases. The argument from fiduciary responsibility is weak and will never be successfully used in this debate.
Jim Thomas | 5/27/2012 - 7:10am

I do not disagree with anything you've said.  My point is that the only reason given for the exclusion of contraceptives is a religious objection. 

While there are many ways to design any benefit plan, in all cases plan sponsors must base design decisions on factors relating to the interests of plan participants.  These plan sponsors are biased against contraceptive coverage.  If this bias is the only reason for excluding contraceptives (and no other reason has been given or even suggested), then the interests of the plan participants have been subordinated to the interests of the plan sponsor.

Was the decision to exclude contraceptives based on factors relating to the interests of plan participants?  If so, where is the evidence of that?
Jim Thomas | 5/25/2012 - 6:37am

You make very good points.  The HHS ruling was based on a number of studies that measured the impact of contraceptive coverage.  These studies concluded that such coverage significantly enhances the health of women and their families.  These studies also concluded that the additional cost of such coverage was .5% per year or less.  However, like any such study, the reported results are aggregate figures.  The experience of individual plans may be different.

As you point out, employers who self-insure must be measured differently from those who offer their employees private plans.  With private plans, employers enjoy the benefits of being in a risk pool administered by the plan provider.  The cost to the employer is known and fixed.  If private plans charge the same premium with or without contraceptive coverage (the proposed compromise), then it is clearly in the best interest of plan participants for employers to make such coverage available.

For employers who self-insure, measuring (or predicting) the relative cost/benefit of including contraceptive services isn't as easy.  Even so, I still believe that these employers have substantial fiduciary issues.

Looking over Notre Dame's filing with the United State District Court, they offer a number of arguments regarding the impact of the mandate on the University.  They believe that the mandate does not serve the interests of the school ... and I agree.  But what about the interests of plan participants?

It is the duty of Notre Dame and all employers who choose to serve as fiduciaries to manage their plans for the exclusive benefit of plan participants.  Conflicts of interest can and will arise from time to time.  In all such cases, the interests of the plan fiduciary must be subordinated to the interests of plan participants.

Notre Dame is soley focused on its own interests.  The University is not addressing or even acknowledging the interests of plan participants.  One cannot administer a plan for the exclusive benefit of plan participants without taking their interests into account. But that is exactly what's happening here.  Notre Dame is ignoring the interests of its plan participants, and in doing so it is clearly breaching its fiduciary duty.
Michael Barberi | 5/24/2012 - 5:32pm

The mandatory "free" contraception coverage is an illusion.

1. TPAs and insurers will simply build these costs into their retention or administrative expense charges, disguished under the growing cost of doing business. Anyone familiar with this benefits industry is well aware of this fact. There is no free lunch in business or insurance.

2. The "mandatory free" contraceptive coverage can work for "fully insured plans" because the insurer collects a fixed premium. After claims and expenses, they either make money or they do not. However, it does not work for self-funded plans because the plan sponsor is responsible for the claims liability. For example, claims are funded through a bank account set up by the plan sponsor, but the claims are paid by a TPA, using the funds of the plan sponsor. The plan sponsor hires the TPA to do claims adminstration for a "fee". Any so-called savings accure to the plan sponsor, not the TPA. Hence, if you preclude the TPA from charging a fee to administer contraceptive coverage, and you prevent the TPA access to any potential plan savings, then the TPA has an expense and the government is not giving the TPA any means to cover the expense, thus forcing the TPA to sustain a loss. This is illegal. The TPA cannot ask the plan sponsor for these so-called savings because the plan sponsor does not know where these savings come from. It is almost impossible to determine. Therefore, you have a situation that is untenable and illegal. The basis of the Obama argument is that contraceptive coverage should be 'free' because it saves money for the total healthcare plan. So, does many other services and products but they are not free. The Obama argument is a weak both from a legal and actuarial perspective. It will not hold up in a court of law.

The Obama administration, in its latest compromise position and request for comments, offered several "ideas" that might work....but none do.

Anything is possible, but based on my experience this mandate will go nowhere. 
Rick Fueyo | 5/24/2012 - 4:40pm
In terms of the new landscape of insurance coverage after full implementation of the ACA, contraceptive coverage will be "free" in terms of plan costs, along with all other mandatory preventive coverage. It's not a delusion; it's an economically rational move for an insurer. It makes sense for an insurer to provide medical services for free if they will prevent more expensive medical claims down the line. A pregnancy is always more expensive than a contraceptive prescription.
That has not worked in the past for that or other preventive services such as checkups, because all insurers excluded pre-existing conditions. Thus, without portability, an insurer could subsidize preventive care but then never reap the benefits if the employee did not stay under their plan. But the employees are staying under the plan long-term, and indeed it makes sense to provide "free" preventative coverage. I appreciate the moral objection to contraception being considered a mandatory "preventative" coverage. But from the purely neutral standpoint of health economics, it makes perfect sense, and proponents of the plan that indicate that it is free are not engaging in doubletalk
Michael Barberi | 5/24/2012 - 3:25pm

This cost to add contraceptive coverage to a healthcare plan is not free. There is the cost of administration and the claims cost of the contraceptive products or services....end of discussion. The government cannot deny a plan administrator for charging for the cost of benefits and their administration without due process.

I agree with you that some experts will argue that the "value" of the plan with contraceptive coverage is more valuable that the plan without it. However, a value is different than a cost or a savings.

You make the presumption that the total cost of the healthcare plan with contraceptive coverage is equivalent to the total cost of the plan without it. However, for an plan sponsor that must deal with reality, in terms of spending money, the plan sponsor will have to shell out a cost for the contraceptive coverage with the hope that the total cost of his healthcare plan will be the same or less. This presumption may be true or not, but it is almost impossible to prove it. For that matter, the cost of many prescription drugs produce greater savings by preventing unnecessary medical expenses. However, no drug plan administrator offers plan sponsors certain drug coverage without the cost of the drugs. In other words, there is no free lunch and the hoped-for savings, if experienced, are merely a side benefit.
Jim Thomas | 5/24/2012 - 2:40pm

I agree that cost/benefit analysis can be complicated, especially when there are multiple variables to consider.  But the situation at hand is not so complicated, in my opinion, since we seem to be dealing with a single variable.

The facts are these, as I see them.  For a given outlay (cost), the employer can have a plan with a certain menu of services that does not include contraceptives.  Or, for the same outlay (cost), the employer can have the exact same menu of services ... plus contraceptives.  If we accept that the DOL argument is correct, then I see no way to argue that the plan without contraceptives is equal (let alone superior) to the exact same plan plus contraceptives.

I would agree that an employer might ''shake things up'' by adding and removing a number of items from the menu, and it may be possible to demonstrate that the new menu is at least equal to if not superior to the old menu.  That is not what seems to be happening here.  I have not heard a single voice among those protesting the HHS mandate suggest that their plan is as good as if not better than that mandated by HHS.

I have to believe that they would make such an argument if they could.
Michael Barberi | 5/24/2012 - 2:12pm

You make a reasoned argument Jim, but the decision to include or exclude coverage for certain healthcare expenses based on a cost/benefit justification is not that simple. There are many services that can be beneficial to the health of plan members, but are not included for many reasons. The cost/savings issue is one of them, but many organizations claim that certain services or products have a positive cost/benefit ratio. Nevertheless, the statistical and actuarial proof is something different. If you study actuarial science and analyze healthcare expenditures, you will realize that cost or savings vary greatly by demographic, geographic, occupation, industry and health status of the selected population under study. Hence, what you often are left with is a "cost" (e.g., the cost of administration and the claims cost of contraceptive coverage) while you "hope to see savings in your total healthcare plan". The problem is that it is almost impossible to isolate those so-called savings, despite the pragramic argument.

The upshot of all of this is that it is not a ipso facto violation of fiduciary duties to exclude contraceptive coverage, based on a positive cost/benefit analysis, except if it is discrimatory or a violation of state or federal regulations. 

Don't get me wrong, I am in favor of contraceptive coverage and when I was a senior partner of a large consulting firm, most of my clients included contraceptive coverage. The question is: Can a plan sponsor exclude contraceptive coverage for acceptable reasons (e.g., not a violation of any regulation or law, or breach of fiduciary duty)? My judgment tells me that if they do so, it would not be a breach of fiduciary duty. 

Michael Gillman | 5/24/2012 - 11:57am
Barberi, spot on. This whole thing paints an ugly picture of the position that birth control holds in the Church. It is as if the leaders are comfortable in the scenario where the use of birth control is just other people's sins. This mandate might actually be good for the church because it brings the Bishops out of the ivory tower and into the moral arena where their flock resides. Many women are faced with a difficult situation where they may not be able to afford to have another child but do not want to stray from church teaching. Now the church leaders face dilemmas as well.
Jim Thomas | 5/24/2012 - 9:15am
I want to add some details regarding the fiduciary issue.

The duty to act exclusively for the benefit of employees means there are standards of conduct that employers must meet.  This is true even when the employer expresses moral or ethical concerns.  This issue was addressed in a May 28, 1998 Advisory Opinion issued by the Department of Labor.

This Advisory Opinion was in response to questions regarding the ability of plan sponsors to include socially-responsible or so-called ethical funds in employee retirement plans.  These products have portfolios that exclude investments that some find morally objectionable, similar to the way church-affiliated employers would exclude medical services they find morally objectionable from healthcare products.  This similarity provides a precise analog to the health care issue.

The Advisory Opinion reaffirmed the obligation of plan fiduciaries to act for the exclusive benefit of plan participants.  The opinion made it clear that fiduciaries must ordinarily consider only factors relating to the interests of plan participants.  However, the DOL did not rule that other factors could not be taken into account.  Plan fiduciaries are allowed to take other factors into account when choosing products as long as the chosen products are equal or superior to alternative products.

This poses a problem for those who want to exclude contraceptives from the health plans of religiously affiliated employers.  The Institute of Medicine has concluded that contraceptive coverage enhances women's health and the health of their families.  In addition, multiple studies have shown that there is little or no difference in the plan cost for contraceptive coverage, since plans with such coverage have lower maternity-related claims.  If you eliminate medical services without at least reducing premiums to create a cost/benefit equivalency, the resulting product is clearly inferior to the alternative.  That may be why opponents of the HHS mandate are not arguing that banning contraceptive coverage is in the best interest of plan participants. Instead, they want to subordinate the interests of plan participants to their own interests as church-affiliated employers.  The problem is that doing so is a clear breach of fiduciary duty.

The remedy is simple.  When there is a conflict of interests, a fiduciary has a legal and ethical duty to step aside in favor of a third party free of conflict.  I find it curious that the consciences of employers that are so bothered by the thought of employees using contraceptives suddenly goes silent when it comes breaching their own legal and ethical obligations.
James O'Reilly | 5/23/2012 - 3:18pm
Once can get lost in the discussion of the size of the Healthcare legislation document. One can debate the need for having a national health care insurance plan for all citizens (like most other industrialized first world countries).
However, a mandate that directs employers who are paying for a health care plan to provide services in that plan that violates moral, and religious, principles held by the employer is worth fighting legally.
The issue for many Catholics is not contraception, but it is the ''morning after pill'', an abortion in plain language. I support the need for a national health plan, but I support Notre Dame's resistance to the ill-conceived mandate just as vigorously.
Let's not let the attorneys distract us with legalisms. An abortion is the taking of a human life, and that is what this mandate is all about!
Amy Ho-Ohn | 5/23/2012 - 11:24am
One thing's for sure: if they lose all of these lawsuits, nobody's ever going to take the USCCB's legal threats seriously again. It will be like taking out a huge full-page ad in the NYT saying, "We've lost out clout!"

They probably thought of that, though.
Michael Gillman | 5/23/2012 - 10:42am
#27 Rick: I would agree that the law is indicative of the fact that we are indeed living in a "lawyerly aristocracy" but I would submit that this has long been the case and this type of aristocracy is certainly preferable to a plain-old aristocracy. This is of course not the best society that human beings can come up with but looking back is not going to provide us with many good alternative candidates. What worries me is that the "lawyerly aristocracy" is creeping into the church leadership as well. I will never forget when I was sitting in mass at the Basilica at Notre Dame and the rector read a letter from Bishop Rhoades that contained a mini-lecture on religious freedom and the United States constitution. Spare me please. The Church's role is to be witness to the kingdom, not a particular method of constitutional interpretation.
Vince Killoran | 5/23/2012 - 10:16am
Tim at #28: "Amy and Vince above expressed cynicism about the legal fees the universities would be paying (informed later it would be pro bono). They must be outraged at the huge cost of these legal fees (paid by the hour by us taxpayers) to write these implementing regulations."

Actually, I don't consider this a "nuisance case." I was mostly just observing that the Church makes telling decisions on where to spend its money. It's good to learn about the Jones Day pro bono work (UND will need its money for other pending lawsuits against it)-I hope they can pass the bill on to their uber rich clients. Still, the government must now mobilize its army of lawyers as well and that isn't cheap. 

Tim's brief against excessive policy language has a populist tone whose message seems to be "Isn't government bad?"  The fact of the matter is that powerful institutions of all kinds deploy dense and inaccesible language in their work. That comes in equal parts from the complex modern society in which we live and the culture of power brokers.  Rick's response at #23 is good.
Michael Barberi | 5/25/2012 - 2:57pm

I believe you are mixing apples and oranges. There are many types of fidiuciaries. For example, the TPA for a self-funded plan is a "claims fiduciary" and the plan sponsor is a "plan fiduciary". The key work here is "plan". They are responsible for managing and administering the plan in the best interests of plan participants. The "plan" is what the plan document says it is. This has nothing to do with plan design policy decisions. A plan sponsor does not have a fiduciary duty to ensure that the plan design is lower, the same or richer than the vast array of plans within their industry. That is why there are many different plans across the US enterprise system. Given this, states and the federal govenment sometimes determines that certain beneifts be included in health plans for any number of reasons. Also, plan benefits must not be discriminatory. 

Your argument that the HHS (I thing it was the NIH) issued a report saying contraceptive coverage saves money for health plans, is not a good argument. There are many studies that say the same thing about many other products and services. Are they all to be included in health plans for "free"? Of course not. 

The point is that a plan sponsor does not have any fiduciary duty to include certain specific services in their health plan. For example, there are solid arguments and concrete evidence that certain plan designs are more cost effective and improve the quality of care than other plan designs. Does this mean that all plan sponsors have a "fiduciary duty" to ensure that their 'plan design' is in the best interests of employees? What is the criteria?  If most of employers in their industry includes contraceptive coverage, but they do not, does this meand they breach their fiduciary responsibilities? Of course not. What if their plan is richer than the average plan, but does not included contraceptive coverage? Again, what is your critieria for "fiduciary duty" in these types of cases?

Jim, keep in mind I am for contraceptive coverage. I am also sensitive to claims of reedom of religion and the constitutionality of mandates. These are complex issues where there are no easy, ipso facto, answers. However, there are fundamental problems with the Obama contraceptive mandate and his demand the cost be "free"....apart from any freedom of religion or constitutional argument.  

Michael Gillman | 5/31/2012 - 1:25pm
^ you mean Jim.
Tim O'Leary | 5/29/2012 - 9:36am
Jim & Rick (multiple)
Michael Barberi and I disagree on the morality of contraception but he is correct on the irrelevance of the fiduciary discussion in settling this issue. As long as the prospective employer and its insurance provider fully disclose what they are willing to cover and not cover, for conscience or other reasons, and the employee accepts the position, then they have a fiduciary responsibility to stick to their contractual promises.

The government is now trying to force a complex market into their ideological straitjacket, and to narrow the definition of a religion. They will then pick and choose who will get waivers (e.g. the Amish, but not Catholics). And all this can be changed by the next administration. This is a new power grab by the federal government. It should not stand.

By the way, since this blog discussion began on May 21, Obamacare regulations have grown by another 50,000 words (if past growth has stayed steady). So, who knows what else they have added.

Michael Gillman #36
The Institute of Medicine (IOM) is packed with pro-abortion members, from such organizations as Planned Parenthood and NARAL, and so cannot be seen as a non-partisan medical organization. Of course, they will conclude that contraception is good for you, but they are unlikely to stop there (if Obama wins in November). This is their first tactical test. See the brief bios of some of the pro-abortion IOM members here
Michael Gillman | 5/23/2012 - 3:38pm
If a woman goes to her Catholic employer and tells him, "I am going to use my next paycheck to finance the abortion of the fetus that I am currently carrying" is it morally wrong to pay the employee her wages? Is it a violation of religious freedom for the law to demand that she be paid. In order to avoid this moral quandry the solution is to not employ.
Tim O'Leary | 5/22/2012 - 11:41pm
Rick #27
I looked for this data when you claimed the oft quoted number of pages was an exaggeration. I was shocked to see how fast the “law” was growing (over a million new words a year – this was news to me), being created by unelected lawyers in the Sebelius bureaucracy. This is most likely where the reductionist view of religious institutions (service only to Catholics by Catholics) was invented. Amy and Vince above expressed cynicism about the legal fees the universities would be paying (informed later it would be pro bono). They must be outraged at the huge cost of these legal fees (paid by the hour by us taxpayers) to write these implementing regulations. It’s worse than the U.S. tax code, another monstrosity.

I don’t like inefficiency in any organization, but the Catholic Church at least has the excuse that it is a 2,000 year-old worldwide organization of a billion people, not 2 year-old legislation designed to reduce the cost of healthcare (what a laugh!). The whole Code of Canon law (I have a copy) is less than 300 pages, and grows very slowly. There really is no comparison. My recommendation stands.
Tom Maher | 5/22/2012 - 7:00pm
Fred Keyes # 20

Wonderful comment Fred.  I loved it.

Liberty does indeed have a very deep historic context in America life which is why Liberty as enshried in the U.S. Constitution is the fundemental laws and priniples of our nation today.  

Patrick Henry and the other patriots risked their personal freedoms for expressing their political grivances and their demands for liberty.  Their expressions were considered acts of treason agasist the King.  So after these liberties were secured by the American Revolution, America's founders made these liberties that were at risk under the King the central foundation of United States law and society as written in the Bill of Rights in the U.S. Constitution.

It can not be forgotten that the American Revolutionary war was actually fought to secure these Liberties.  These Liberties are now solidly an expected part of American life.   Defending ones Liberties is completely manstream and expected in America.
Rick Fueyo | 5/22/2012 - 5:34pm
"What is odd is people's ignorance or primitive undersatnding of how the Consttution does limit government power."

Before pedantically condemning others' ignorance, I would try to make sure that I show a greater knowledge of the actual legal principles involved. Your post does not.

You have announced the recent decisions is brought principles without making any attempt to actually apply them to the facts at issue. If the Court follows its existing jurisprudence, it is highly doubtful that it could strike down the regulations. 
Rick Fueyo | 5/22/2012 - 5:32pm
Fr. Rooney:

Let me attempt to answer the following:

''I haven’t read the 5,931 pages of Obamacare but does anyone know if it contains the power to define a religious institution?''''

I suspect it does not. First, as an aside, the reference to the number of pages is a polemic, a talking point. Legislation is mandated to be written with very few lines per page, with numbers, et cetera. I would suspect that a normal reading, the legislation would be about 5% as long number of pages. Those that oppose the legislation like to use that number to create a false impression.

That said, I'm nearly certain that there is no definition provided within the text of the legislation itself. That would be provided within the implementing regulations drafted by Health and Human Services pursuant to provisions of administrative law, with comment periods.

That is what is occurred so far, in the initial round of announced regulations have been withdrawn in part and the purported ''accommodation'' issued, which is now in the comment period, with affecetd parties ermotted to comment before the final regulation is implemented.  It is very likely that the lawsuit is premature, and could be dismissed on ripeness prudential doctrines.

That aside, I can roughly address your question. Pre-existing constitutional case law recognizes a ministerial exception for any generally applicable law. It was recently litigated before the Supreme Court, and has been a few times in our history. Essentially, any generally applicable law cannot apply to ''ministers'' to the extent it interferes with their religious beliefs. So the question is not in defining a religious institution, but in defining which of that instuitutions' employees would fit under this exception. Generally, an institution whose primary purpose is religious, and whose employees are compelled to abide by those beliefs, and whose ''client'', for lack of a tour, are also compelled to, are blanketly subject to a ministerial exception.

This is a case where the wonderful social services that are relatively unique to the Catholic Church are at issue. Though some other churches operate schools and hospitals, most, but not all, do so only for like-minded believers. In that case, there is no issue. But as we are all aware, the Catholic Church is admirably different.  The issue is whether churches, hospitals, etc., who hire employees of all faiths and provide services to those of all faiths can be exempted in the role of an employer from an otherwise generally applicable law. The latest accommodation went much further in this regard, although it still has the same definition of ministerial employee, but sought to change the operating mechanism as to how the benefits were provided to try to separate out the employer from providing the objectionable benefit, in this case reception. It may not always work for self-funded insurance plans, although even those can have a third-party administrator, which is something I considered. Perhaps for church employers, there can be a provision a third-party administrator, which is pretty common in the benefits world.

But I hope I've answered your question.
Michael Barberi | 5/22/2012 - 4:42pm
Jim McCrea, Tim O'Leary and others:

1.  A fiduciary must administer the health plan for the benefit of the employees in a non-discrimatory fashion. This has nothing to do with the decision to include or exclude certain covered services in an plan sponsor's health plan. That is a separate issue made by the plan sponsor. Many times a plan sponsor must cover certain services based on state or federal law. Once the plan is in effect, then the fiduciary must follow their legal responsibilities per ERISA and other legal statues or codes. 

2. The real issue is the definition of a religious organization, an organization that would be exempt from any type of mandate that requires a plan sponsor to cover certain services that are against the tenents of their faith/religion. The slippery slope is the definition. Can a religious organization exclude blood transfusions as a covered service in a health plan they sponsor for their employees, because it is against their religion? You get the picture. Nevertheless, I believe a definition can be constructed and be constitutional.

3. The other real issue is the Obama contraceptive mandate. It simply does not work for self-funded plans, prevalent among large employers. A third party administrator (TPA) that must cover contraceptive services for free, is denied the finanical means to cover the cost of providing and administering these covered benefits. For example, there is no means to recover any savings that may accrue to the plan sponsor. Plus the TPA cannot charge the employer or employee any type of financial fee or premium. It is practically impossible to determine and pinpoint with actuarial accuracy any potential savings. Most insurance companies or TPAs will go to Court over this issue and WIN. 
Michael Gillman | 5/22/2012 - 1:47pm
@Tim O'Leary: You said that you just have to exist to be required to pay for free sterilization. You mean you have to be an employer. If this was so important to the Bishops then they shouldve leveraged their institutions against the president during their private compromising session. This is why the religious freedom claim is essentially lacking. There isnt a constitutional right to be an employer on whatever terms you want. Certain exceptions have been made in many statutes to avoid possible conflicts with religion whether it be because of constitutional avoidance or policy preference. Hosana-Tabor is an application of the ministerial exception, which recognizes that government interference on who can propogate the faith does collide with the first amendment's mandate that no law be passed that prohibits free exercise, but a strict understanding of the ministerial exception would suggest that it is not implicated in this mandate. If you want to run a business you have to pay for a wide range of health benefits. The mandate, if it cannot be accepted by the Church certainly places a tremendous burden/fatal blow to catholic hospitals, schools, etc. but it doenst burden anyone's right to heal the sick or teach.
Michael Gillman | 5/22/2012 - 1:29pm
@Tom Maher: "These legal actions are all about Constitutional law of which Religious Liberties figures ve3ry powerfully and always has." This is the point that is lost. What is the official church teaching on the interpretation of the U.S. Constitution? That's fine (sort of) if ND wants to file a lawsuit (especially if it is pro bono, Josh where did you read that?) but I do kind of resent every priest in the country trying to give a half baked religious freedom constitutional law argument, and the implication made by the Bishops (or at least Bish. Kevin Roades) that somehow as Catholics we must be opposed to the mandate and we must understand that the compromise was a sham. Here the bishops reach a little too far. After all, by Fr. Jenkins' own admission, this isnt about access to birth control it is about religious liberty. The idea that the Catholic Church is under attack in the United States has never been less true. More than half the Supreme Court, leaders of both parties in the house, etc. This poses a threat to the church but not the kind that the culture warriors are afraid of. I think the Bishops are suffering from a little too much "cathedra christianity" which involves little more than individualized piety with a dash of politics on the side. This is a perfect example. The clergy has shown little interest in understanding the laity on this issue (and therefore the laity doesn't really try to understand the teaching). This is all fine as long as the Bishops don't have their robes dragged into the mud. The kind of legal technicalities at issue here are the kinds of things that matter to people who sit in offices and read for a living, to most people these distinctions are utterly incomprehensible. 
Joshua DeCuir | 5/22/2012 - 12:30pm
Boy, talk about hyperbole, Amy.  For one thing, if Jenkins didn't cave to near-unanimous outcry from the Bishops with respect to Obama's honorary degree, why do you know assume he's just become a tool for the Bishops?

"(1) There is a pretty obvious quid pro quo involved: the lawyers do the legal work and the bishops lobby from the pulpit in support of the lawyers' preferred political candidates."

- In order for there to a quid pro quo there has to be - by definition - an exchange of goods or values.  Nothing you've descirbed in your comment meets that requirement.  So I'm afraid you're running out of latin phrases to throw out.

"(2) It may not be pro bono indefinitely. At some point, the lawyers could say, "Oops, this thing has turned out to be an embarassing flop. We're pulling out now, unless you'd like to hire us to continue."'

- Rest easy, this is prevent by state bar ethics rules.  The only viable option would be withdrawal.

"(3) Once the Diocese of NY and Notre Dame have thrown their credibility behind this thing, there will be pressure on lesser diocesan and academic luminaries to jump on board; not everybody is going to get the work done pro bono."

- Again, since they would presumably be joining the suits already filed - or the suits are likely to be consoldiated in one federal court, this won't happen. 

"If my taxes pay lawyers to develop solid, coherent, publically beneficial legislation on the government's dime, I call it money well spent. The PPACA may not be a paragon of good legislation, but all in all, it's good, useful work and I don't mind paying for it."

Well obviously, as you yourself admit, not everyone feels the way you do.  The problem howver, is that unlike your voluntary donations to the Catholic Church - which are, again, voluntary, taxpayer money isn't (at least without penalty).

Forget the silly conspiracy theories and focus on the substance.

Amy Ho-Ohn | 5/22/2012 - 10:16am
I'm aware that the legal work is officially pro bono (i.e., pro bono episcoporum, pro malo civium) right now. However: (1) There is a pretty obvious quid pro quo involved: the lawyers do the legal work and the bishops lobby from the pulpit in support of the lawyers' preferred political candidates. (These are also, obviously, the bishops' preferred candidates, but that is their personal preference, not a matter of doctrine.) (2) It may not be pro bono indefinitely. At some point, the lawyers could say, "Oops, this thing has turned out to be an embarassing flop. We're pulling out now, unless you'd like to hire us to continue." (3) Once the Diocese of NY and Notre Dame have thrown their credibility behind this thing, there will be pressure on lesser diocesan and academic luminaries to jump on board; not everybody is going to get the work done pro bono.

@Tim, my point is that nobody is under any religious obligation to support the bishops in this, any more than one is obliged to root for the sports teams the bishops root for.

If my taxes pay lawyers to develop solid, coherent, publically beneficial legislation on the government's dime, I call it money well spent. The PPACA may not be a paragon of good legislation, but all in all, it's good, useful work and I don't mind paying for it.
Tim O'Leary | 5/22/2012 - 10:01am
Amy #9
There is certainly no claim from my side that infallibility has anything to do with a citizen (Bishop, monk, university teacher, left-wing blogger, etc.) standing up for his/her rights. These are prudential decisions – no disagreement on that. Glad to hear there is some concern for legal fees from you and Vince. I wonder how much per page they got for putting Obamacare together, and how much they will earn telling people what’s in it. As Nancy Polosi said, ''We Have to Pass the Bill So That You Can Find Out What Is In It.” As with the Gallico comment in the above article, so many times I hear the “it’s not clear” about this monstrosity. Also, several on the nut-free left keep thinking this mandate pertains only to organizations taking federal money. It’s not. You just have to exist to be required to pay for free sterilizations.

Vince #7
It wasn’t always so tricky defining a religious institution. But any definition that requires one to pay for unlimited amounts of contraception if one wants to set up a soup kitchen is a looney idea (or does one need a sign “only Catholic homeless need apply”). Here’s another question on ObamaCare that probably no one really knows the answer to. Since there is no co-pay, can one order huge amounts of contraceptives or is one limited to what one can personally use?
Tom Maher | 5/22/2012 - 9:46am
These legal actions are all about Constitutional law of which Religious Liberties figures ve3ry powerfully and always has.  What is odd is people's ignorance or primitive undersatnding of how the Consttution does limit government power.  What is unusual in the history of the United States it is rare for a religion to have to sue the government to have the government properly conform tot he Consitution. Especially when President Obama is a Constitutional lawyer.  Until fairly recenetly governments were well aware and respected the rightrs of religions as a key duty of the Government that noone would think of infringing on.  But in an increasingly secular society Religion is not well regarded or is even hostily regarded in favor of increasing the an all-powerful state.  But the rights Constitution to limit the reach of government is still very much in force.  If yu do not think so you should be ready to be surprised just how powerful Religious rights are in America.  These lawsuit are all about the Consistutional Religious Rights doctrine whcih very powerfully favor religion. 

The first words of the First Amendment contain the Religious Liberty clauses which even uninterpreted limit the power of government to be involved in the affairs of religion.

The analytic focus needs to be on how has the Supreme Court intepreted the Religous Liberty clasues over the last 200 years.  The Supreme Court has developed an elaborate and extensive set of Religious Liberty doctrines and continues to do so.  For in a 9 - 0 ruling affirmed the "Minsterial exemprtion" which affirms the right of religious organizations to to chose and remove ministers free anti-discrimination laws and other labor laws.  This recent decison is called Hosanna Tabor Evagelical Church and School v the EEOC explains and uses two cneturies of Religous Liberty doctrines.   THis decision is the current state of Constiitutional law on Reeligious Liberty which elaborately favors religion freedom from governhment iinvolvment, nterference and entanglement.

Try focusing on the "Congress shall make no law ..." part of the First Amemndmen,  THis phrase has powerful meaning that is enforced by the courts. 
Joshua DeCuir | 5/22/2012 - 9:32am
"I agree, it looks like the bishops are being taken for a ride by some money-hungry lawyers on this one."

FACT: The attorneys representing Notre Dame are doing it on a pro bono basis. 

The rhetoric here is time-worn and tiring.  It seems to me going to court is a good way to solve it: try your case and whoever wins, wins. This quote from Dr. Callahan's piece is worth chewing on in light of some of this "hyperbole": "I maintain that in debate you should correctly state your opponent’s position- to his or her satisfaction.  Then you can show how and why you judge your own position to be more valid.  Isn’t this the rule of fidelity to the Truth that preserves western civilization?"

PS - Winters, to his credit, has been steadfast in his criticisms of the Administration's original and "amended" mandates.  He deserves credit for that act of intellectual courage.
Thomas Rooney OFS | 5/22/2012 - 8:52am
@ Tim O'Leary #6 asks:

"I haven’t read the 5,931 pages of Obamacare but does anyone know if it contains the power to define a religious institution?"

Now THAT'S a good question, and one that I've not seen asked in this debate thus far, anywhere.  I would love to know the answer (without tooth-combing a 6,000 page piece of legislation!  I ain't got that kind of time!)
Amy Ho-Ohn | 5/22/2012 - 7:09am
Hey Vince (#3 and 7), I'm out here in left field with you. Too many nut trees growing in right field, for my taste.

I agree, it looks like the bishops are being taken for a ride by some money-hungry lawyers on this one. I wouldn't mind if I weren't on the hook to pay for their ride. How much did the Mormons spend defending polygamy, does anybody know?

As far as I know, the ordinary magisterium is infallible when it speaks on a point of faith and morals. When it expounds on a point of constitutional law, nobody is obliged to pay any attention, especially if it sounds as crashingly stupid as it does just now.
Tom Maher | 5/22/2012 - 1:18am
Notre Dame and 42 other Catholic enities such as the Archdiocese of New York have filed suit in various federal courts throughout the United States on May 21.  The cause of action is a basic Religious Liberty claim where Obama admistration in its HHS regulation is defining what is and what is not a religous organization - a cleasr violation of the First Aaendment entangling government in the affairs of any religion.   Religous defines itself.  The First Amendment instructs "Congress shall make no law ..."  which has always been intrepreted that the government such as HHS must stay out of defining religiion.

The First Anendment religious liberties rights trumps any law of Congress including the new health care law.

America magazine with its "Policy, not Religious Liberty" stance is way out in left field in dneying the essential Religous Liberty rights now being pursuid in federal court by these lawsuits.  
Vince Killoran | 5/21/2012 - 11:49pm
It's not an NCR "article" or their editorial-it's a blog by Michael Sean Winters who is all over the place on this issue. If you put stock in the NCR's position stay tuned for their editorial which will take a different view I'm sure.

The issue of defining an institution as "Catholic" is a tricky one-once you get past the Catholic parish office or those working in convents etc. you are dealing with large institutions, many accepting huge amounts of tax dollars and often the majority of the people they serve are non-Catholic.  Policymakers must make reasonable distinctions.  The danger is to let any organization or business make the "Catholic" claim and pretty soon that USCCB spokespersons wish back in February that the local Taco Bell franchise owner who happens to be Catholic can demand an exemption.  Pure chaos and injustice.

As for your "lonely in  left field" comment  you must not be reading the polls (

Finally, do you really think that, if this policy goes into effect, it will, in the words of Fr. Jenkins, "be the end of genuinely religious organizations in all but name?" That is pure hyperbole.
Vince Killoran | 5/21/2012 - 4:22pm
I'd love to know how much the lawyers will reap from this little legal action.

The quoted section after "Jenkins adds" is pure hysteria on the part of the university president. Irresponsible.

As for "We do not seek to impose our relgious beliefs on others.  .  .": That is exactly what the USCCB et al. seek to do. This will be the result for the non-Catholic janitors, nurses, secretaries on college campuses and in hospitals across the country. This, despite HHS guidelines do not require Catholic insitutions as employers to cover, pay for, or offer referrals for reproductive matters that they oppose.

Tim O'Leary | 5/21/2012 - 10:37pm
Jim #2
It is worth noting that the NCR article (top of your link) praised Notre Dame for their measured approach (so much for Vince’s #3 hysteria comment – it’s getting lonely so far out in left field).

This talk about a fiduciary responsibility is a red herring to the objection raised by the University (thank God they finally found some moral backbone). Jim’s point argues that the employers must override their own consciences and ethics and essentially act as amoral servants of the employees, and only the ethics of the employees have any standing. If this were the case, ND couldn’t even object to paying for abortion services (currently an excluded exception – until after November if Obama wins?).

Regarding the last point in Kevin’s article, all religious institutions, not just Catholic, should be concerned when the government usurps the right to define what a religion is and what its mission is. The very idea of defining an institution as Catholic only when it employs Catholics and cares for Catholics should cause outrage in those who give paramount importance to the “social” gospel.

I haven’t read the 5,931 pages of Obamacare but does anyone know if it contains the power to define a religious institution?
Jim McCrea | 5/21/2012 - 4:17pm
To poach from a sister publication:
“Submitted by Jim978 (not verified) on May. 21, 2012.
The principal difficulty as I see it is not the position of HHS. Notre Dame (like every other employer) assumes the duties of a fiduciary when it administers a health care plan for its employees. Like all fiduciaries, it has a duty to administer that plan for the exclusive benefit of its employees. Please, someone correct me if I am wrong, but I have yet to hear an argument made that Notre Dame is refusing to include contraceptives in its plan because that is what is best for its employees.
The reason Notre Dame is not making such an argument is that this isn't about what is best for the employees. This is about a conflict between the interests of Notre Dame and the interests of the participants in their plan. In any case involving a conflict of interest, a fiduciary has a legal and ethical duty to step aside in favor of a third party free of conflict. For a fiduciary to do otherwise is a breach duty.
Freedom of religion does not include the freedom to breach one's fiduciary duty.”
Rick Fueyo | 5/21/2012 - 4:48pm
I decided to look it up a bit, and without turning this into a legal discussion, it is possible in employer can serve as a fiduciary for its employees with respect to the benefit plan. However, and again try not to think that's a legalistic distinction, I'm not sure how that would apply in a constitutional challenge. The Constitution would trump the law of trusts. However, if it is true that an employer merely administers its health plan for the benefit of the employees, it would seem difficult to argue that an individual conscience was being violated by having benefits within the health plan that violated the conscience of the employer, when the plan is being run for the benefit of the employees. Interesting, but I don't know how significant this legal issue will be
Thomas Piatak | 5/21/2012 - 3:35pm
Cheer, cheer for Old Notre Dame!
Rick Fueyo | 5/21/2012 - 4:32pm
The fiduciary argument is interesting. I am an attorney, but I don't know about this area of law. That sounds more like something relevant to ERISA.  I have never heard that an employer administering other aspects of its benefit plan does so as a fiduciary for its employees. If so, however, that would seem to undercut this argument