Where Did the HHS Mandate Come From? Labor and Employment Law and Catholic Institutions

Many Catholics have been baffled a particular aspect of the contraception mandate proposed by the U.S. Department of Health and Human Services:  the definition of a religious employer. The rule granted an exemption to an institution that “(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization.” The definition effectively excluded most Catholic hospitals and higher education institutions.

Although the mandate is new, the distinction is rather well established in labor and employment law – helping explain, for instance, why employees of Catholic hospitals can turn to the National Labor Relations Board (NLRB) or Equal Employment Opportunity Commission (EEOC) for protection of their rights, while those employed by a Diocese or parish cannot.


Jurists have generally read the expansive protections of our First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) as conferring virtual immunity from government regulation on houses of worship. The courts often defer to the elected branches of government, however, when dealing with religious-affiliated organizations operating in the secular realm, employing and serving those who are not co-religionists.

Catholic hospitals pretty clearly fall in the latter category, but schools are a bit of a mixed bag. In NLRB v. Catholic Bishop of Chicago (1979) the Supreme Court ruled that K-12 schools, which include mandatory religious instruction, belong in the category immune from regulation under the National Labor Relations Act. Manhattan College and St. Xavier University, which are currently fighting union organizing efforts by their adjunct faculty, are currently arguing much the same case – though from a weaker set of facts, since Catholic higher education institutions don’t necessarily make religious education much of a priority.

None of this background renders the mandate by Health and Human Services wise or just. But it does render it a bit more comprehensible, and can inform our dialogue as we seek redress.

Clayton Sinyai


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Marie Rehbein
6 years 2 months ago
It might also be helpful to note that in 2000 the Equal Employment Opportunity Commission determined that excluding oral contraceptives from health insurance policies was a form of discrimination under Title VII of the Civil Rights Act of 1964.
Tom Maher
6 years 2 months ago
The author ask a great question but answers the question in correctly.

The author asks "Where did the HHS mandate come from " ? 

After all this is a regulation that senior White House advisers urged the President not to be issue.  Issuing or not issuing a regulation with the great foreseeable impacts as this regulation has could have been avoided but wasn't.  Many politcal analyst believe the answer to the author question is elelcltion year politcs or some other politcial calculation.

Intended or not it is obvious that health care regulation have now become very politcized.  Politics is now recognized to be heavily part of the implementation of the new health care law.  One can only wonder what will the Obama administration do next and for what reason?   Why would the adminstration making th enew health care law even more unpopular than it already is risk further public disaaproval in an election year if there was no poitcal gain?  Or is this just naother example of inept policy making on the part of the Obama adminsitration?  But why would the Obama Aadministration go agaisnt their own senior advisers?

But the author effectively does not see what the fuss is all about.  To him "religious employers"  are the asme as nay other employer becasue the adminstration says so.  Astonisdhingly the author answers that there is no Constitutional religious liberty problem to be reviewed.  This mandate is just another labor law regulation.  As if the  Consitutional restrict religion to only worship and prevent any other wider mission or purpose. 


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