WASHINGTON – Yesterday the Council for Christian Colleges & Universities submitted comments to the Department of Health and Human Services in response to the department’s March 21, 2012, Advance Notice of Proposed Rulemaking for “Certain Preventative Services Under the Affordable Care Act,” or the “contraceptive mandate,” as it has become widely known.
The contraceptive mandate requires all employers, including religious institutions, to cover contraceptive services in their health care plans, including covering the contraceptives Plan-B and ella, which are widely considered to be abortion causing drugs. Though the final regulations published on February 15, 2012, exempt churches from this mandate, the regulations do not offer exemption for other types of religious organizations, including CCCU institutions. Earlier this year, the administration responded to widespread concern about the narrowly defined exemption by proposing an “accommodation” for religious groups.
The CCCU has been lobbying the administration on this issue since the contraceptive mandate was included in the August 3, 2011, amendment to the HHS regulations entitled Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act (File Code CMS-9992-IFC2).
From the beginning the CCCU has argued that the exemption should be expanded to include all religious organizations, including CCCU institutions. Since the accommodation proposal was put forth, the CCCU has also explained why it is not adequate. In yesterday’s comments, CCCU President Paul Corts described, first, the fatal flaws in the administration’s overall framework and, second, the inadequacies of the proposed accommodation model in addressing the legitimate religious freedom concerns it purports to assuage.
“Its fundamental flaw is that the accommodation creates a two-tiered system of religious organizations—those which are deemed ‘more’ religious and are therefore exempted, and those which are deemed ‘less’ religious and are therefore only accommodated. The act of creating this distinction is unconstitutional,” wrote Corts. “The exemption also disregards the sincere claim by our institutions, and by other religious institutions that share our Christian faith, that we cannot meet the requirements of the exemption because doing so would force us to violate a key tenet of our faith: to live out our faith in all aspects of life beyond the walls of a church.”
In its comments, the CCCU stressed that its campuses are religious employers. Though the administration’s current definitions exclude them from qualifying for exemption, all CCCU member institutions hire only professing Christians for all administrative and full-time faculty positions. Many hire only professing Christians for all campus positions. The CCCU’s comments note that CCCU institutions are recognized as religious organizations in court cases, by Title VII, and by other federal laws. The CCCU advocates for the HHS regulations to afford them similar deference.
Corts urged HHS, if it insists on maintaining its current approach and retaining a narrowly-defined exemption, to seriously consider constitutional concerns as it selects parameters for the accommodation. “Doing this would mean that in every instance where there is a debate about how to define the scope of the accommodation, your Department would choose the option that creates the most expansive, protective accommodation,” he wrote.
Corts also addressed specific proposals in the department’s Advance Notice of Proposed Rulemaking. Regarding the inadequacy of a proposal to define the accommodation according to federal tax code definitions that would accommodate only institutions directly controlled by or associated with a church, a convention, or an association of churches, Corts noted that many CCCU institutions would not be accommodated under this proposal.
In response to the department’s questions about whether the accommodation should exempt only groups that oppose all of the mandated services, rather than just specific subsets of services, Corts noted that CCCU institutions do not have a monolithic position on these issues. Thus, an all-or-nothing accommodation does not allow for the nuances inherent at CCCU campuses.
The CCCU also takes issue with the proposed safe harbor deadlines and the ways they reduce the constitutional religious freedom of religious organizations.
Finally, the Corts advocated for a completely arms-length transaction between the employee and the insurance company that extricates the religious employer, even when objectionable products and services are offered for free. He explained that in order for this accommodation to have any chance of addressing the conscience concerns of institutions, there must be an arrangement that does not implicate the institution in any way in the coverage or provision of these services.
Three CCCU member institutions and one affiliate have filed suit against HHS on this issue, asserting that these regulations are an infringement of their religious freedoms: Colorado Christian University in Lakewood, Colo.; Geneva College in Beaver Falls, Pa.; Louisiana College in Pineville, La.; and affiliate institution Franciscan University of Steubenville in Steubenville, Ohio.
Previously, the CCCU signed an inter-faith letter dated August 26, 2011, to Joshua DuBois, head of the White House Office of Faith-Based and Neighborhood Partnerships; submitted comments on September 30, 2011, to the Department of Health and Human Services, Department of Labor, and the Internal Revenue Service; wrote a December 23, 2011, letter to President Obama opposing the limited religious protection contained in the mandate; delivered a March 9, 2012, letter to the White House expressing continued concern about the contraceptive mandate; and most recently joined nearly 150 other faith groups in a June 11, 2012, letter of protest to Secretary Kathleen Sebelius.
About the CCCU: The Council for Christian Colleges & Universities is a higher education association of 185 intentionally Christ-centered institutions around the world. The 116 member campuses in North America are all fully-accredited, comprehensive colleges and universities with curricula rooted in the arts and sciences. In addition, 69 affiliate campuses from 24 countries are part of the CCCU. The Council’s mission is to advance the cause of Christ-centered higher education and to help our institutions transform lives by faithfully relating scholarship and service to biblical truth. Visit www.cccu.org.