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Senate bills fail but need to reform health care remains, says bishop

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WASHINGTON — After the Senate Republicans failed to get enough votes to pass a “skinny” repeal to remove parts of the Affordable Care Act in the early hours of July 28, a U.S. bishop said the “task of reforming the health care system still remains.”

The U.S. Capitol is seen prior to an all-night round of health care votes on Capitol Hill July 27 in Washington. The Senate rejected legislation to repeal parts of the Affordable Care Act. (CNS photo/Aaron P. Bernstein,

The U.S. Capitol is seen prior to an all-night round of health care votes on Capitol Hill July 27 in Washington. The Senate rejected legislation to repeal parts of the Affordable Care Act. (CNS photo/Aaron P. Bernstein,

The nation’s system under the Affordable Care Act “is not financially sustainable” and “lacks full Hyde protections and conscience rights,” said Bishop Frank J. Dewane of Venice, Florida, chairman of the U.S. Conference of Catholic Bishops’ Committee on Domestic Justice and Human Development.

It also “is inaccessible to many immigrants,” he said in a statement.

“Inaction will result in harm for too many people,” Bishop Dewane added.

The failed repeal bill was a pared-down version of earlier bills. It would have repealed both the individual mandate that says all Americans must buy health insurance or pay a penalty and the requirement all large employers offer health insurance to their workers. It would have expanded health savings accounts, delayed a tax on medical devices and increased funding for community health centers.

The vote was 51 against, and 49 in favor. All the Democrats voted “no.” Sen. John McCain, R-Arizona, joined two other GOP senators in rejecting the measure, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine.

Majority Leader Mitch McConnell, R-Kentucky, had pushed the latest version forward in hopes it would be passed and lead to a conference with the House, which May 4 passed the American Health Care Act to replace the ACA, to hammer out a compromise measure.

The Senate vote is over, but the need to reform health care remains, said Bishop Dewane, who urged the two political parties to get past their divisions and work for “the common good.”

“A moment has opened for Congress, and indeed all Americans, to set aside party and personal political interest and pursue the common good of our nation and its people, especially the most vulnerable,” he said.

He laid out four action items he said are essential to any bill to be considered in the future:

  • “Protect the Medicaid program from changes that would harm millions of struggling Americans.”
  • “Protect the safety net from any other changes that harm the poor, immigrants, or any others at the margins.”
  • “Address the real probability of collapsing insurance markets and the corresponding loss of genuine affordability for those with limited means.”
  • Provide full Hyde Amendment provisions and much-needed conscience protections.”

 “The greatness of our country is not measured by the well-being of the powerful but how we have cared for the ‘least of these,'” Bishop Dewane said. “Congress can and should pass health care legislation that lives up to that greatness.”

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Backgrounder: Getting a health care bill through Congress fraught with difficulties

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Catholic News Service

WASHINGTON — When the vice president has to cast a vote to break a tie in the Senate on whether to debate U.S. health care policy, let alone revise it, as Mike Pence did July 25, it is obvious that passing legislation to repeal, and/or replace, and/or reform the Affordable Care Act (ACA) is going to be a heavy lift in Congress. Read more »

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U.S. bishops’ committee chair sees little improvement in Senate’s revised health bill

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WASHINGTON — The Senate Republicans’ latest effort to overhaul the Affordable Care Act is “unacceptable” and shows little improvement over the lawmakers’ first attempt to reform the federal health care law, said the chairman of the U.S. bishops’ domestic policy committee.

“On an initial read, we do not see enough improvement to change our assessment that the proposal is unacceptable,” said Bishop Frank J. Dewane of Venice, Florida, chairman of the U.S. Conference of Catholic Bishops’ Committee on Domestic Justice and Human Development.

The U.S. Capitol in Washington. The Senate Republicans’ latest effort to overhaul the Affordable Care Act is “unacceptable” and shows little improvement over the lawmakers’ first attempt to reform the federal health care law, said the chairman of the U.S. bishops’ domestic policy committee. (CNS photo/Tyler Orsburn)

The U.S. Capitol in Washington. The Senate Republicans’ latest effort to overhaul the Affordable Care Act is “unacceptable” and shows little improvement over the lawmakers’ first attempt to reform the federal health care law, said the chairman of the U.S. bishops’ domestic policy committee. (CNS photo/Tyler Orsburn)

“We recognize the incremental improvement in funding the fight against opioid addiction, for instance, but more is needed to honor our moral obligation to our brothers and sisters living in poverty and to ensure that essential protections for the unborn remain in the bill,” he said July 13.

Bishop Dewane said the USCCB “is reviewing carefully the health care bill introduced by Senate leadership earlier today.”

Senate Majority Leader Mitch McConnell, R-Kentucky, introduced the Senate’s Better Care Reconciliation Act. The measure needs 50 votes to pass.

In his July 13 statement, Bishop Dewane referred back to his June 27 letter to senators that said any health care reform bill must uphold several moral principles: affordability; access for all; respect for life; and protection of conscience rights. The bishops also have stressed the need for U.S. health care policy “to improve real access” to health care for immigrants.

The U.S. Senate must reject any health care reform bill that will “fundamentally alter the social safety net for millions of people,” he said in the June letter. “Removing vital coverage for those most in need is not the answer to our nation’s health care problems, and doing so will not help us build toward the common good.”

Bishop Dewane also said in that letter the U.S. bishops valued the language in the earlier Senate bill that recognizes “abortion is not health care,” and that it at least partially succeeded on conscience rights. But he said it had to be strengthened to fully apply “the long-standing and widely supported Hyde Amendment protections. Full Hyde protections are essential and must be included in the final bill.”

The June 27 letter reiterated points the U.S. bishops made in reaction to a June 22 draft of the Better Care Reconciliation Act. Bishop Dewane had warned that the bill’s “restructuring of Medicaid will adversely impact those already in deep health poverty. At a time when tax cuts that would seem to benefit the wealthy and increases in other areas of federal spending, such as defense, are being contemplated, placing a ‘per capita cap’ on medical coverage for the poor is unconscionable.”

The revised GOP bill introduced July 13 retains big cuts in Medicaid funding and in subsidies for low- and moderate-income people. It also scales back the federal portion that covers the cost of Medicaid, leaving states to pay more and find new funding and/or reduce benefits and limit who can enroll in the program.

The measure provides for $45 billion in grants to help states combat abuse of opioids and other drugs; the first version allowed $2 billion. It also would let people use money from their tax-exempt health savings accounts to pay for insurance premiums.

In addition, people would be allowed to buy just a catastrophic health insurance policy to cover serious accidents and diseases, like cancer. Insurance companies also would be allowed to sell policies that do not include all the coverage mandated by the ACA, such as preventive care and mental and substance abuse treatment, as long as they sell one policy that includes those requirements.

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U.S. bishops focused on ‘ensuring fundamental right’ to health care

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Catholic News Service

INDIANAPOLIS — As the country awaits the U.S. Senate’s plan to repeal and replace the Affordable Care Act in the coming weeks, the U.S. bishops made it clear June 15 during their annual spring assembly in Indianapolis that their efforts are focused on “ensuring the fundamental right of medical care” for all people.

The U.S. Conference of Catholic Bishops also reinforced its stand that the American Health Care Act passed by the U.S. House May 4 needs major reform, to provide quality health care for the voiceless, especially children, the elderly, the poor, immigrants and the seriously ill.

Cardinal Daniel N. DiNardo of Galveston-Houston, who is president of the U.S. Conference of Catholic Bishops, center, speaks June 14 during the opening of the bishops' annual spring assembly in Indianapolis. Also pictured is Archbishop Jose H. Gomez of Los Angeles, USCCB vice president. (CNS photo/Sean Gallagher, The Criterion)

Cardinal Daniel N. DiNardo of Galveston-Houston, who is president of the U.S. Conference of Catholic Bishops, center, speaks June 14 during the opening of the bishops’ annual spring assembly in Indianapolis. Also pictured is Archbishop Jose H. Gomez of Los Angeles, USCCB vice president. (CNS photo/Sean Gallagher, The Criterion)

“We find ourselves in a time marked by a deep sense of urgency and gravity,” said Bishop George L. Thomas of Helena, Montana, in his remarks to his fellow bishops. “Within two weeks, we may see a federal budgetary action with potentially catastrophic effects on the lives of our people, most especially children and the elderly, the seriously ill, the immigrant and our nation’s working poor.”

Referring to the House bill, known as AHCA, and its plan to “eliminate $880 billion from Medicaid over the next decade,” Bishop Thomas continued, “If left unchallenged or unmodified, this budget will destabilize our own Catholic health care apostolates, take food from the mouths of school-aged children and the homebound, and deny already scarce medical resources to the nation’s neediest in every state across the land.”

His passion growing as he spoke, Bishop Thomas concluded, “These are our people, our communities, our parishioners and members of our own beloved families. As a conference of bishops, we have the responsibility to read the signs of the times, to shine the light of the Gospel and Catholic social doctrine on this proposed budget.”

Bishop Thomas’ remarks drew appreciative applause from the U.S. bishops on the second day of their June 14-15 meeting.

He was the first bishop to speak following a report on health care reform by Bishop Frank J. Dewane of Venice, Florida, chairman of the USCCB’s Committee on Domestic Justice and Human Development.

In his report, Bishop Dewane also focused on how the U.S. Senate will soon turn its attention to repeal and replace the Affordable Care Act.

“The Catholic Church remains committed to ensuring the fundamental right to medical care, a right which is in keeping with the God-given dignity of every person,” Bishop Dewane said. “Both the lives of the unborn and adequate concern for those most in need anchor the USCCB’s messages to Congress at this critical time.”

He told his fellow bishops that the USCCB has been in constant contact with members of Congress since the House passed its version of a health care plan. Noting that the USCCB sent a letter to U.S. senators June 1, Bishop Dewane said, “It called on the Senate to strip away harmful promises of the AHCA or start anew with a better bill.”

The letter also provided recommendations and guiding principles for the senators as they craft their health care plan, starting with respect for life.

“No health care reform plan should compel us or others to pay for the destruction of human life, whether through government funding or mandatory coverage of abortion,” Bishop Dewane said about that priority in his remarks.

He also stressed that all people should have access to comprehensive quality health care and that the cost of health care be affordable, keeping low-income families in consideration. Any health care plan should also respect the conscience rights of people, from patients to providers.

“Those without a strong voice in the process must not bear the brunt of the attempts to cut costs,” Bishop Dewane said. “The bishops stand ready to work with Congress to address problems with the Affordable Care Act in ways that protect the most vulnerable among us.

“This is an important moment for the country and for the church. The teaching we bring to bear on questions of health and health care do not fit neatly or really, in many cases, not at all, into the single party platforms,” he continued. “Because of this, the church has a unique voice. The committee’’s work on this issue will remain active and diligent for the sake of those most in need at all stages of life.”

Following Bishop Dewane’s report, other bishops joined Bishop Thomas in sharing their reactions with their fellow bishops.

Cardinal Blase J. Cupich of Chicago said, “The issue is about the human person. We need to make sure that we put forward that our position is that the state has a responsibility in creating solidarity within a country of caring for those most in need.”

Bishop Robert W. McElroy of San Diego reflected on the comparison between the Affordable Care Act and the proposed plan that the U.S. House of Representatives recently passed to replace it.

“Health care is a fundamental human right, and government is its ultimate guarantor,” Bishop McElroy said. “The Affordable Care Act for all its flaws was a movement in favor of comprehensive health care. This is a movement away.”

Archbishop Joseph F. Naumann of Kansas City, Kansas, encouraged his fellow bishops to remember people who live in rural areas as they seek a comprehensive health care plan.

“Medical care in the rural parts is in a very delicate state in terms of getting enough doctors and hospitals in those areas,” Archbishop Naumann noted.

He also viewed a call to repeal and replace the Affordable Care Act as an opportunity for the country.

“There was a lot of dishonesty in the Affordable Care Act, not just about the conscience rights and what was done to the unborn,” he said. “It was a house of cards. The Medicaid provisions were not sustainable by states, I don’t think. Also, we see that many other parts of it were collapsing in terms of what was really available to people.”

Archbishop Naumann added, “The new plans hopefully will really be something that is sustainable. I think this is an opportunity to do something different from other parts of the world, and to really develop quality health care accessible to all.”

Before Bishop Dewane’s presentation, Cardinal Daniel N. DiNardo of Galveston-Houston, USCCB president, opened the agenda item on health care reform was introduced by saying, “We as bishops strive to engage in this debate as a voice for the voiceless, for the poor, the sick, the unborn.”

“We also strive to bring to the fore the many moral questions in health care that can affect human flourishing, from life’s earliest days to its very final moments,” the cardinal said. “Our teaching has much to offer the current discussions, and we have a unique obligation as bishops to make those teachings known. We are also very concerned with how this debate affects the ability of the church to engage in its venerable ministry of healing the sick.”

— By John Shaughnessy, assistant editor, newspaper of the Archdiocese of Indianapolis.

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Church leaders welcome leaked HHS draft lifting contraceptive mandate

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Catholic News Service

 

WASHINGTON — A leaked draft rule from the Department of Health and Human Services exempting religious groups from the contraceptive mandate of the Affordable Care Act was welcomed by church officials and attorneys representing the Little Sisters of the Poor, one of the groups that challenged the mandate at the U.S. Supreme Court.

Archbishop William E. Lori of Baltimore, chairman of the U.S. Bishops’ Ad Hoc Committee for Religious Liberty, said in a June 1 statement that the leaked draft has “yet to be formally issued and will require close study upon publication,” but it provides encouraging news.

“Relief like this is years overdue and would be most welcomed,” he said. Read more »

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House narrowly OKs Affordable Care Act repeal-replace bill

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Catholic News Service

WASHINGTON — The House passed a bill to repeal and replace the Affordable Care Act by a four-vote margin May 4. The final vote was 217-213.

Assuming that all Democrats voted against the bill, which they did, the Republicans needed to avoid having 22 of its own House members defect to the “no” camp. In the finally tally, 20 Republicans voted against the measure.

President Donald Trump gathers with Vice President Mike Pence and congressional Republicans at the White House in Washington May 4 after the House of Representatives approved a repeal of major parts of the Affordable Care Act and replace it with a Republican health care bill. (CNS/Carlos Barria, Reuters)

President Donald Trump gathers with Vice President Mike Pence and congressional Republicans at the White House in Washington May 4 after the House of Representatives approved a repeal of major parts of the Affordable Care Act and replace it with a Republican health care bill. (CNS/Carlos Barria, Reuters)

This latest GOP repeal-and-replace bill was rushed through with such speed that the Congressional Budget Office did not have time to prepare an analysis of it before the vote.

The previous American Health Care Act was dealt a big blow after the CBO said that 24 million people would lose health insurance over the next decade had the bill become law. That version of the bill never came to a vote as different factions among House Republicans voiced their opposition.

The new version was nearly scuttled when key Republican lawmakers said they would vote against it because it would have allowed insurance companies to charge more to Americans with pre-existing conditions, which had been banned under the Affordable Care Act. Some of them announced they would support the bill after an added $8 billion over the next five years was added to an original allocation of $130 billion it to help alleviate those issues.

Even with the bill’s passage in the House, it faces an uncertain future in the Senate.

Planned Parenthood would be blocked from receiving federal funding for one year under the new bill.

Catholic leaders were wary of the repeal-and-replace efforts.

Sister Carole Keehan, a Daughter of Charity who is president and CEO of the Catholic Health Association, said in an April 26 statement that changes to the bill, “intended to make it more palatable to those who did not support it initially, are even more disastrous for people who have just gotten health care.”

“The ACA is, by no means, a perfect law,” said a March 17 letter to members of Congress by Bishop Frank J. Dewane of Venice Florida, chairman of the U.S. bishops’ Committee Domestic Justice and Social Development. “The Catholic bishops of the United States registered serious objections at the time of its passage. However, in attempting to improve the deficiencies of the ACA, health care policy ought not create other unacceptable problems, particularly for those who struggle on the margins of our society.”

At that time, Bishop Dewane lauded the “critical life protections” in the original bill,

In her own letter, sent March 8 to members of Congress, Dominican Sister Donna Markham, president and CEO of Catholic Charities USA, said that despite the “commendable efforts” to protect the unborn and give states greater flexibility, the prospect of 70 million people on Medicaid getting reductions in health care “undermines access to life-saving coverage.”

One provision of the bill would let the federal government stop providing enhanced funding for new Medicaid enrollees after 2019, which would likely cause most of the 31 states and Washington that expanded Medicaid under the Affordable Care Act to drop it, according to a May 3 analysis by the Center on Budget and Policy Priorities. An estimated 11 million people receive Medicaid under the ACA. The bill also allows states to impose a work requirement for Medicaid recipients.

The legislation also would allow insurers to charge higher premiums to those in their 50s and early 60s, compared to younger consumers. Taxes on the wealthy, insurers and others under the ACA would be eliminated under the new bill, as would the individual mandate imposed by the ACA with its attendant penalties for noncompliance. The bill also would replace federal subsidies tied to personal income and insurance premiums and replace it with refundable tax credits based mainly on age to purchase health insurance.

One popular part of the ACA that was retained in the new bill was a requirement that children be carried on their parents’ family policies to age 26.

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New U.S. health care bill withdrawn after if falls short of votes in the House of Representatives

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Catholic News Service

WASHINGTON — Sister Carol Keehan, a Daughter of Charity, who is president and CEO of the Catholic Health Association, doesn’t mince words when it comes to the American Health Care Act, which was short of votes and withdrawn by House Republicans late March 24.

U.S. House Speaker Paul Ryan recommended March 24 that President Trump withdraw the American Health Care Act when it didn't have enough votes in the House. (CNS/Joshua Roberts, Reuters)

U.S. House Speaker Paul Ryan recommended March 24 that President Trump withdraw the American Health Care Act when it didn’t have enough votes in the House. (CNS/Joshua Roberts, Reuters)

Two days before the GOP legislation was set for an initial vote in Congress and then delayed due to last-minute wrangling and efforts to gain support, she described the bill as a disgrace, a pro-life disaster, a huge step back, catastrophic for Catholic social teaching and something that would do incredible damage.

The woman religious, who heads an organization of more than 600 hospitals and 1,400 long-term care and other health facilities in the United States, has a vested interest in the nation’s health care and she also knows the ins and outs of health care legislation from working behind the scenes “forever,” as she describes it, on the Affordable Care Act.

At the time that the ACA was being drafted, some Catholic organizations opposed key elements of the measure. Once it became law, more than 40 lawsuits were filed to challenge the subsequent Department of Health and Human Service’s mandate requiring that insurance plans include coverage for artificial birth control, sterilization and drugs that lead to abortions.

Sister Keehan is quick to point out that the health care legislation signed into law seven years ago is far from perfect, but she says it was an “incredible step forward.”

“I do recognize the political conflict and the imperfections in the bill, but when you can make insurance that much better for people who have it and give 20 million Americans insurance, that is a huge step forward,” she said March 21 in her Washington office.

At a 2015 Catholic Health Association gathering in Washington, President Barack Obama thanked Sister Keehan for her steadiness, strength and “steadfast voice.”

“We would not have gotten the Affordable Care Act done had it not been for her,” he said.

The immediate repeal and replacement of the ACA was a key promise of President Donald Trump’s campaign, but the GOP health care measure has faced opposition from both conservative and moderate Republicans. Trump told House Republicans that he will leave ACA in place and move on to tax reform if they do not support the new health care legislation.

Watching the GOP efforts to repeal and replace the ACA has been hard for Sister Keehan mainly because she and other health care leaders were not consulted in the process.

“We should never, ever throw together a bill that’s going to be such a profound impact on the people of this country in this short of time and without any input from those who care for them,” she said.

The work on these two health care bills couldn’t have been more different, she pointed out, noting that prior to the ACA launch she felt like she “lived in committee rooms” because she was constantly meeting with committees, groups and subgroups at the White House and Congress.

With the GOP health care plan, she said there wasn’t any opportunity for hospital groups or the American Medical Association to give any advice.

“We’ve just been dismissed,” she said, noting that she attended a few small group meetings on Capitol Hill but “they were not meetings to get our input on what ought to be done with the bill but meetings to tell us what was going to be done.”

“This has just been railroaded through Congress,” she added.

While the U.S. bishops have applauded pro-life elements of the American Health Care Act, they also have criticized other elements and expressed concern for its impact on the disadvantaged.

In a March 17 letter to House members about the GOP measure, Bishop Frank J. Dewane of Venice, Florida, chairman of the bishops’ Committee on Domestic Justice and Human Development, said the inclusion of “critical life protections” in the House health care bill is laudable, but other provisions, including those related to Medicaid and tax credits are “troubling” and “must be addressed.”

He said the bill’s restriction of funds to providers that promote abortion and prohibiting federal funding for abortion or the purchase of plans that provide abortion “honors a key moral requirement for our nation’s health care policy.” But he also criticized the absence of “any changes” from the current law regarding conscience protections against mandates to provide certain coverage or services considered morally objectionable by employers and health care providers.

“The ACA is, by no means, a perfect law,” Bishop Dewane said. “The Catholic bishops of the United States registered serious objections at the time of its passage. However, in attempting to improve the deficiencies of the ACA, health care policy ought not create other unacceptable problems, particularly for those who struggle on the margins of our society.”

Main provisions of the new House bill include: eliminating the mandate that most individuals have health insurance and putting in its place a new system of tax credits; expanding Health Savings Accounts; repealing Medicaid expansion and transitioning to a “per capita allotment”; and prohibiting health insurers from denying coverage or charging more money to patients based on pre-existing conditions.

Sister Keehan said she thanked Bishop Dewane for his letter to Congress and said the bishops had carefully gone through the legislation measure by measure on a number of issues. She also noted that she knows people in the pro-life community either think the new bill is strong enough or not doing enough.

As she sees it, the bill is “a pro-life disaster in the fact that when you take health care away from people, you take life.”

“If you want to really, really strengthen the pro-life culture in this country, you make sure people know that their lives and the lives of their children are so valued by our country,” she said, which means providing quality maternity and pediatric care and offering programs like Head Start and food stamps.

Although she said under the ACA no federal funds could be spent on abortion, a nonpartisan government agency in an assessment of the law in 2014 said abortion coverage was available in some plans. Sister Keehan also said the law included help for pregnant mothers to get drug rehabilitation, housing and maternity care, which are not included in the new bill.

“I don’t find this a pro-life bill at all from every perspective,” she added about the new measure.

When asked if there was a silver lining with people at least talking about the need to provide insurance for all Americans, Sister Keehan said the health care crisis for so many people doesn’t give “the luxury of time.”

“To be the only industrialized nation in the world that does not guarantee all its citizens health care is a disgrace,” she said, adding: “We are at a real crossroads in our country’s sense of its responsibility to its people.”

 

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Hackett reflects on his three years as U.S. ambassador to Vatican

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Catholic News Service

VATICAN CITY — Ken Hackett, the U.S. ambassador to the Holy See, is gearing up to try retirement for the second time. The retired president of Catholic Relief Services, the U.S. bishops’ overseas aid agency, is leaving his ambassadorial post three years and three months after presenting his credentials to Pope Francis. Read more »

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Washington Letter — Theologians’ brief in HHS mandate case might lead to compromise ruling

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Catholic News Service

WASHINGTON — Supreme Court cases, with their multiple friend-of-the-court briefs, leave extensive paper trails behind them and although these briefs might get lost in the shuffle, occasionally some stand out.

Women religious demonstrate March 23 against the Affordable Care Act's contraceptive mandate outside the U.S. Supreme Court in Washington. A brief filed by Catholic theologians could impact the court's efforts to seek a compromise. (CNS photo/Jim Lo Scalzo, EPA)

Women religious demonstrate March 23 against the Affordable Care Act’s contraceptive mandate outside the U.S. Supreme Court in Washington. A brief filed by Catholic theologians could impact the court’s efforts to seek a compromise. (CNS photo/Jim Lo Scalzo, EPA)

In Zubik v. Burwell, the challenge to the Affordable Care Act’s contraception requirement, more than 30 briefs were filed by religious, political and health groups weighing in both for and against the mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance even if they are morally opposed to such coverage.

One of these briefs, submitted by a group of 50 Catholic theologians and ethicists, may have been instrumental in prompting the court to issue its March 29 order for new written arguments by both sides.

Legal analyst Lyle Denniston, who writes for scotusblog.com, a blog on the Supreme Court, said if the justices succeed in finding a way to make the Affordable Care Act’s contraception requirement “work in a way that more or less satisfies everyone,” the group of theologians “should take at least some of the credit.”

He said the court very rarely asks for more information after oral arguments and the request was so unusual “it may not have any parallels in the court’s history” except for the call for expanded constitutional arguments when the court was reviewing the school desegregation case, Brown v. Board of Education.

The 45-page brief from the theologians is steeped in Catholic moral theology and hinges on the notion that religious employers object to the mandate and the Obama administration’s “work-around” — that allows them to acknowledge their opposition to the requirement and arrange for a third party to provide the contraception coverage — primarily because it makes them complicit in sin.

This objection, spelled out in the theologians’ brief, is not something that can be compromised, thus pointing to another way to make the Affordable Care Act’s requirement work, which the court seems to be reaching for in its order.

The court proposed that religious employers would not be asked to fill out a form or send a letter stating their objection to contraception coverage but would simply do nothing and the insurance companies, taking the cue from the employer’s stance, would provide the necessary contraception coverage.

Religious groups reacted favorably to this idea, stating in a new brief that this would use the least restrictive means for the government to protect women’s access to contraceptives while ensuring that religious employers are not complicit in what they regard as sinful.

Complicity in sin is not often the topic du jour in court hearings, but it came up during the March 23 oral arguments of Zubik. Paul Clement of the Washington-based Bancroft firm, who was one of two lawyers representing the plaintiffs, argued that religious freedom was at stake in the federal government’s accommodation because even though the contraceptive coverage would be supplied by a third party, the religious employers would still be complicit in providing something that goes against their beliefs.

U.S. Solicitor General Donald Beaton Verrilli Jr., in defending the federal government, argued that the government’s accommodation was the least restrictive approach, and he also did not think the plaintiffs, by using third parties, were complicit in what they disagreed with, even though they have repeatedly stated this.

For all the arguments that the religious groups should simply fill out the paperwork to remove themselves from something they disagree with on moral grounds, the theologians’ brief pointed out that it’s not that simple.

The brief notes that “compliance with the mandate” by filling out a form or submitting notice to the Health and Human Services Department would involve “either formal cooperation in wrongdoing, or impermissible material cooperation in serious wrongdoing.”

They gave the historic example cited by Catholic moral theologians about a servant ordered by his master to hold a ladder against a house so the master may “enter a window to commit a forbidden action, such as burglary or adultery.”

“Under Catholic moral theology, such formal cooperation is impermissible, even when committed under duress, and regardless of whether the master actually succeeds in perpetrating the wicked action,” the brief notes.

It also links this analogy to the current case saying the contraceptive mandate places the religious objectors in a situation akin to the servant who obeys a command to participate in the master’s scheme and it likens the master to the government “which is attempting to implement a program designed to promote the use of contraceptives and abortifacients” which the brief says is “plainly impermissible under Catholic doctrine.”

If the justices find a way to reach the type of Solomonic compromise many say they are looking for with the contraception requirement, religious groups would have to enter new contracts for new health plans, and the government would have to write new Affordable Care Act regulations, which will certainly take some time, but can be accomplished.

If the justices are unable to find a compromise and they reach a split decision, the contraceptive mandate for religious groups will be interpreted differently in different areas of the country.

 

Follow Zimmermann on Twitter: @carolmaczim.

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Religious groups back Supreme Court’s idea on contraceptive coverage

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WASHINGTON — The religious nonprofits challenging their participation in the contraceptive mandate under the Affordable Care Act agreed with a U.S. Supreme Court proposal that such coverage be provided through an alternative health care plan without involving the religious employers in a legal brief filed with the court.

The brief, filed April 12 in the case of Zubik v. Burwell, said that as long as any alternative plan offering contraceptive health coverage is “truly independent” of the petitioners and their health insurance plans, then they would no longer object to the ACA’s goal of providing access to free birth control to women.

Sister Loraine Marie Maguire, mother provincial of the Denver-based Little Sisters of the Poor, speaks to the media outside the U.S. Supreme Court in Washington March 23 after attending oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS photo/Joshua Roberts, Reuters)

Sister Loraine Marie Maguire, mother provincial of the Denver-based Little Sisters of the Poor, speaks to the media outside the U.S. Supreme Court in Washington March 23 after attending oral arguments in the Zubik v. Burwell contraceptive mandate case. (CNS photo/Joshua Roberts, Reuters)

Any such an arrangement would require a separate insurance policy, a separate enrollment process, a separate insurance card and a separate payment source and be offered to employees through a separate communication, thus protecting the petitioners’ objections under the Religious Freedom Restoration Act to the contraceptive mandate, the brief said.

“We said yes to the court. There certainly are ways that people can get contraceptive coverage without using the religious organization providing health plans to do it,” Mark Rienzi, senior counsel with the Becket Fund for Religious Liberty, said during a press call April 13.

“The point of the case is not to say the government cannot get people to have contraceptives. … The claim has always been ‘I just can’t be involved. You can do whatever you want, just leave me out of it,’” he added.

“Our argument is if the government is willing to do something separate, that would be fine with us,” he told reporters.

Health insurance programs already exist in states across the country that offer separate contraceptive and abortion coverage under the ACA to meet employer concerns, Rienzi said.

Zubik v. Burwell is a consolidated case involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, the Archdiocese of Washington, and other Catholic and faith-based entities. The groups are challenging the ACA’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through employer-provided health insurance even if they are morally opposed to such coverage.

Briefs from the religious groups and the federal government were filed in response to a March 29 order from the eight Supreme Court justices outlining the procedures objecting religious employers must follow if they do not want to provide insurance coverage of contraceptives. It suggested that the groups could contract a third party to provide health insurance for their employees but they would need to inform the insurance company that they did not want the plan to include contraceptive coverage that they find objectionable.

The government’s brief argued that it wanted to keep the contraceptive mandate intact, but offered that it would go along with the court’s suggestion despite the possibility that it might not close the door on future legal challenges.

The court’s alternative, the government said, would work only in cases in which a religious employer uses an outside insurance company for health care coverage. The government also said that the religious groups had never indicated throughout years of litigation that they would accept what the justices ultimately suggested.

The brief reiterated that requiring a religious employer to send its objection to contraceptive coverage in writing is a “minimally intrusive process.”

However, it is that “work-around” of filing written paperwork with the government stating objections to such coverage that led to the lawsuits from the religious groups, which maintain that even complying with the so-called accommodation still involves them in providing coverage that violates their deeply held beliefs.

The court’s March 29 order said that insurance companies could “separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

With the plan, the objecting religious employers would not have to submit a form to the government or their insurance companies about the coverage.

Both parties have until April 20 to file responses to the briefs. The court is expected to rule on the case near the end of its term in June.

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