Lex Cordis Caritas - The law of the heart is Love

by Bishop Thomas John Paprocki

My dear brothers and sisters in Christ:

On Aug. 1, the mandate of the federal Department of Health and Human Services (HHS) went into effect, requiring employers who offer group health insurance in a business of any size to provide coverage for contraception, abortion-inducing drugs and sterilizations. Some owners of Catholic-run businesses or organizations have asked what this means for them and what their options are in light of Catholic moral teaching.

This is a complicated and difficult situation, but I can offer some basic information provided by the staff of the United States Conference of Catholic Bishops and the ethicists at the National Catholic Bioethics Center.

First, it is important to realize that an entity is not faced with enforcement on that date if any of the following apply:

  • It fulfills all four prongs of the very narrow four-pronged definition of "religious employer," that is, it: (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 as defined in the Internal Revenue Code;

  • It fulfills the less stringent criteria for the one-year "safe harbor" (for nonexempt, nonprofit employers with a religious objection that, consistent with state law, have not been providing contraceptive coverage in their health coverage);

  • It is "grandfathered" (i.e., it had a group plan that did not cover contraceptives or sterilization as of March 23, 2010, and no substantial changes of certain kinds have been made in the health plan since March 23, 2010);

  • The plan year for its health coverage begins at another time of the year (e.g., if the plan is renewed in January each year, that is the time when the mandate will apply);

  • It is a small business (fewer than 50 employees) that does not offer a health plan (oddly, such a small business is not penalized for not offering a plan at all, but can be penalized for offering a plan that does not include all mandated benefits).

The non-faith-based employer of conscience is left with the following options:

  • Willingly assent. Comply with the provision of the morally objectionable insurance coverage. Catholic moral teaching does not admit this form of cooperation as morally licit under any circumstances.

  • Provide morally non-objectionable insurance. Refuse to comply by continuing to provide nonobjectionable insurance coverage through a plan that does not include coverage of contraceptives, abortifacients, or sterilizations, running the risk of serious financial and legal repercussions. This option would subject the employer to the exorbitant penalties of $100 per day per employee, as well as the potential legal actions taken by employees and by the federal government. A business with only 15 employees would face roughly half of a million dollars in fines per year. In most circumstances, this option would not be prudent.

  • Drop all coverage. Refuse to comply by dropping all health insurance coverage for employees while providing fair compensation for lost benefits. Dropping all coverage appears to be the most morally sound approach. However, beginning in January 2014, an employer with more than 50 full-time equivalent employees could incur a penalty of approximately $2,000 per employee per year beyond the first 30 full-time employees not offered a health plan, as well as incur the potential legal actions taken by employees and the federal government. This option has the disadvantage of shifting the cost, burden, and quality of health care coverage for employees and their families onto the employees themselves. At a minimum, justice would require fair compensation for lost benefits in the form of a salary increase or other economic benefit and adequate notice to allow employees to find individual coverage before losing their employer-sponsored coverage. The National Catholic Bioethics Center advises, "As unfortunate as it is, this approach appears to be the most morally sound and fiscally survivable option for the employer at present."

  • Temporarily comply under protest. Refuse to fully comply while voicing opposition to the unjust mandate, actively pursuing legal avenues to eliminate its substantial burden on the free exercise of religion, and tolerating a group health plan that contains the morally objectionable coverage only until January 2014, at which time employees in every state will have access to affordable insurance exchanges. The ethicists of the National Catholic Bioethics Center believe that temporary compliance with the mandate, coupled with active opposition by all reasonable and legal means available, is a morally tolerable option only as a last resort, provided that this compliance ends once the insurance exchanges are available to employees in 2014.

The reasonable hope of successful legal challenges was recently bolstered by a federal court in Denver: Hercules Industries, a Colorado-based family-owned business, has already succeeded in securing a temporary injunction against enforcement of the mandate based on the Religious Freedom Restoration Act of 1993. (See Newland v. Sebelius. It is important to note that this ruling applies only to Hercules Industries. Moreover, the merits of this case have not yet been adjudicated.)

The above analysis is intended to provide moral guidance in accord with Catholic teaching. Employers should rely on the advice of their own legal counsel for the implications of any contemplated course of action. It is regrettable that the administration's implementation of the Patient Protection and Affordable Care Act has put conscientious employers in the predicament of facing this moral dilemma. I pray that a just and moral solution may yet be found.

May God give us this grace. Amen.