Sr. Keehan backtracks?

Sr. Keehan!  GIVE BACK THAT PEN!

It seems that Sr. Keehan’s Catholic Health Association, which in abandoning unity with the bishops  gave cover to catholic dems so they could vote for Obamacare and get us now into the mess that has arisen, has done a little back-tracking.

This is from the site of the CHA with my emphases and comments.

Catholic Health World
February 15, 2012 Volume 28, Number 3 [Feb 15!]
Something has to be fixed
By SR. CAROL KEEHAN, DC
CHA president and chief executive officer

CHA and its members were profoundly disappointed to learn that the definition of a religious employer was not going to be broadened in the U.S. Department of Health and Human Services’ rules for preventive services for women.

The impact of being told we do not fit the new definition of a religious employer and therefore cannot operate our ministries following our consciences has jolted us. [Well well well… isn’t that interesting.  NOW something has to be fixed!  When you lie down with dogs, Sister, you rise us with fleas… and that beautiful pen you received when you sold out the bishops.] The contributions of Catholic health care, education and social services to this country’s development are legion. [Aren’t they just sooo special? Interesting choice of words, “legion”.] They have responded to the needs of all, not just Catholics. They have been delivered by many who do not share our faith, but share our commitment.

From President Thomas Jefferson [Not the other two guys?] to President Barack Obama, we have been promised a respect for appropriate religious freedom. [Note the qualifier.] The first amendment to our Constitution affirms it. We are a pluralistic country, and it takes respectful dialogue to sort this out fairly. This decision was a missed opportunity.

CHA has expressed concern and disappointment about this on behalf of the ministry. [You mean after going all weak-kneed at the White House seeking you out as a weapon against the bishops? Those phone calls from the White House could make smart people a little stupid.] We have said the problem is not resolved, and we must have a national conversation on this. CHA is working closely with the United States Conference of Catholic Bishops, [Is that so?] Catholic Relief Services, Catholic Charities USA, the Association of Catholic Colleges and Universities and others to look at options to resolve this. We will be discussing it at the CHA board meeting on Feb. 8.  [Note that the date of the release of this, at the top, is 15 February.  What’s up with that?  Or is that supposed to be 18 Feb?]

I assure you that we will use the time to pursue a correction during the one-year extension. We will give this issue priority and consult with members and experts as we evaluate options to deal with this. Any suggestions, comments or questions are welcome.  [Start by giving back that PEN!] I promise to keep the membership informed as we move along in this effort. Please keep this important effort in your prayers as well.

I’ll bet that what happened here is that the BOARD of the CHA thinks Sr. Keehan is too far out in weeds.  Sr. Keehan had her hand slapped by the board.

There is division in the CHA. Not everyone is with Sr. Keehan.

Don’t imagine that the people who have reined Keehan back are actually on the side of the bishops.  It is more likely that people who run hospitals, and not hospital associations, are making calls and pointing out how how much trouble they are really in over this HSS mandate.

If you didn’t see it when I posted it before, here it is again.

From Richard III. Buckingham starts to learn what it means to support the wrong guy.

[ENTER, Sr. Keehan with members of the CHA.  Barack walks in loggia saying his prayers.]

UPDATE: On the site of the National Catholic Register (that’s the good paper), you find this:

“If the CHA board hasn’t authorized this, if she has no mandate from the USCCB, and if there are no legally binding documents, she is operating without any legal, governance or regulatory basis. That is a hell of a situation for a Roman Catholic nun that heads the Catholic Health Association to be in.”

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This entry was posted in Dogs and Fleas, Emanations from Penumbras, Linking Back, Our Catholic Identity, Religious Liberty, The Drill, The future and our choices, The Last Acceptable Prejudice. Bookmark the permalink.

71 Responses to Sr. Keehan backtracks?

  1. Cathy says:

    Blah, blah, blah, if CHA is really upset about the mandate, why aren’t they doing what EWTN and Belmont Abby have already done and sue the government?

  2. isnowhere says:

    “Catholic health care, education and social services to this country’s development are legion.”

    I am sure it was not intended this way at all, but this came to mind: Mark 5:9

  3. Legisperitus says:

    Could this be CHA’s reaction to the fact that the original, un-“compromised” mandate actually went into effect on February 10?

    That wouldn’t be directly inconsistent with their approval of the proposed “compromise.”

  4. Marine Mom says:

    Not one us is free from human weakness…………………

  5. jhayes says:

    That statement by Sr. Keehan was published on February 2, prior to the February 8 meeting mentioned in it.

    Here it is on February 2.

    HERE

    Looks as if the people at their print magazine didn’t get the word that it was out of date.

  6. MarylandBill says:

    Not that I want to support Sister Keehan, but I would point out that her statement about “appropriate religious freedom” is technically accurate. The government has always reserved and exercised power to limit or outright forbid certain religious practices if it was seen to be in the broader public interest. Religious practices such as human sacrifice (except of course for secular sacrament of abortion!), polygamy and drug use are all examples.

    That being said, there is a huge difference between restricting certain activities that are shown to be harmful and mandating an action. It starts with mandating buying insurance; will mandating euthanasia of terminal patients or elderly above a certain age be next?

  7. Centristian says:

    “From President Thomas Jefferson [Not the other two guys?]…”

    Right? Were Washington and Adams somehow tyrannical violators of Americans’ religious liberty? I don’t even think their predecessor was guilty of that. I can think of only one American head of state who has acted like a tyrant in that regard…

    “…to President Barack Obama, we have been promised a respect for appropriate religious freedom.”

    Wasn’t there a time when nuns took a vow of silence? It might not be a bad idea to revisit that custom.

  8. Mrs. O says:

    This is from CHAUSA date 2/13
    CHA Will Review the Proposed New Rules for the HHS Mandate

    CHA looks forward to reviewing the specifics of the changes in the mandated benefits. Many members have called with questions about these since they were a concern as first published. On Friday, Feb. 10, 2012, we were notified that our organizations would not have to buy or refer employees for contraception and other services. We were also told that the self-insured plans would be accommodated in this. At this time, there are many unanswered questions about specifics. We now have the challenging work of reviewing the proposed rules, examining their impact and giving input before they are finalized.

    Because many members have asked about specifics in the rules and also the process for applying for the one-year exception, we have included links to the rules and to the guidance on the safe harbor with this email.

    As more is known about this, we will be getting that information out to the membership as quickly as possible.

    > Final Rules

    > Guidance on Safe Harbor

  9. robtbrown says:

    Secular liberals don’t understand that for Catholic liberals the conscience (well or poorly formed) is supreme.

  10. la2la says:

    Re: Thomas Jefferson. I believe Sister Keehan is referring to Pres. Jefferson’s 1804 letter to the Ursuline nuns of New Orleans. The good sisters were worried that their ownership of their convent and school in New Orleans would not be honored after the Louisiana Purchase. They wrote to the president for clarification.

    He wrote back the following: “…The principles of the Constitution and government of the United States are a sure guarantee to you that it will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from civil authority. Whatever diversity of shade may appear in the religious opinions of your institution cannot be indifferent to any; and it’s furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.”

    Ursuline Academy flourishes to this day (I was educated by them as a child). The letter is still in their hands. This administration is takes our civil society and turns it on its head. Sister Keehan should be ashamed.

  11. pookiesmom says:

    A fine mess the Church is in!! Because the Church was established by Our Lord for the salvation of the whole world, the landscape in this country might be entirely different had all Bishops, priests and laity boldly lived authentically Catholic lives right from the beginning of the Republic. The accommodation of the dominant Protestant culture by many in the Church (heresy of Americanism) in the 19th Century and the embracing of the contraceptive culture by most Catholics in the 20th Century(with little said by the clergy) has resulted in what we see today both within the Church and in our society as well. I fear the Holy Spirit is sweeping with a mighty broom. The Obama administration, CHA, USCCB, HHS mandate are just the details.

  12. Gretchen says:

    Call me cynical, but the sister’s intentions are clear from this sentence: “I assure you that we will use the time to pursue a correction during the one-year extension. We will give this issue priority and consult with members and experts as we evaluate options to deal with this.”

    She’s providing election-year CYA for Obama.

  13. TomD says:

    Centristian, perhaps a bit of a partisan “revelation” from Sister Keehan?

    Thomas Jefferson is considered, by Democrats, as the “founder” of their party, hence, perhaps, the reason for his being listed by Sister Keehan in this way, “From President Thomas Jefferson to President Barack Obama . . ..” Alternatively, Jefferson’s writings, in particular among the Founders, are very important to those with non-traditional religious sentiments.

    I suppose, in that sense, Washington and Adams don’t count. It is a curious and revealing way to frame our country’s history of religious freedom. Although Jefferson is a focal point of early religious sentiment for “liberals” in this country, Washington extensively wrote concerning it too. And he was, after all, our first President.

  14. JenniferGM says:

    How does this woman have so much sway and power? It really makes me queasy to observe her actions. We noticed she’s also on the Board of Trustees with Catholic Charities, the other organization that spoke up before the Bishops and agreed to the “compromise.” Why oh why do these people remain allied with the Church when they don’t follow the teachings?

  15. Doubtful Thomas says:

    Father Z: I’m afraid I must disagree with you. I don’t think Sr. Keehan should give back that pen. I think she should sell it on ebay and donate the proceeds to a pro-life organization.

  16. John 6:54 says:

    From President Thomas Jefferson [Not the other two guys?] to President Barack Obama, we have been promised a respect for appropriate religious freedom. [Note the qualifier.] The first amendment to our Constitution affirms it. We are a pluralistic country, and it takes respectful dialogue to sort this out fairly. This decision was a missed opportunity.

    Fr. Z check your 3rd paragraph I think you have some red & black mixed up.

    Also I saw Cardinal-designate Dolan on a CNA interview and he seemed to sympathize with Sr. Keehan saying she was in a “tough spot” Why can’t we just call a spade a spade?

  17. SonofMonica says:

    Re: From President Thomas Jefferson to President Barack Obama

    I took her statement to be a recognition that the Bill of Rights, including the First Amendment was only ratified in 1791, and thus was not included in the U.S. Constitution as originally ratified. John Adams was President in 1791. But he took office before the ratification of the Bill of Rights. So, in some sense, she is correct. The First Amendment and its express protection of religious liberty was not in place at the time that Washington and Adams took office.

  18. digdigby says:

    Thomas Jefferson wrote the Bible. At least he wrote himself his own version in which he carefully removed all miracles and ‘supernatural stuff’. The ‘enlightenment’ arrogance is breathtaking and an intimate part of our nation’s ethos and fetishism for so-called freedom. No ‘tyrannical medieval king’ had a fraction of the wealth, power and control of the ordinary people as does an American president.
    http://www.angelfire.com/co/JeffersonBible/

  19. DisturbedMary says:

    I don’t believe a word that comes our of her mouth or from her Pen. Larry Snyder, head of Catholic Charities also backtracked. He’s another one I don’t trust. Their big business is at stake.

    Last night I sent back the NY Archdiocese Stewardship Annual letter circling its mention of Catholic Charities in its letter as the reason I wasn’t participating this year. There are plenty of solid Catholic charities that I don’t have to wonder about.

  20. TomD says:

    SonofMonica, John Adams was President from 1797 to 1801 . . . elected to the office in 1796. George Washington was elected in 1789 and served until 1797. The Bill of Rights legally became part of the Constitution on December 15, 1791, when Virginia, the ninth state to do so, ratified the first Ten Amendments to the Constitution.

    So your statement that, “The First Amendment and its express protection of religious liberty was not in place at the time that Washington and Adams took office,” is factually incorrect.

  21. Dan says:

    Not sure if anyone has seen this yet, but the rule implementing President Obama’s Friday announcement has just been published in the Federal Register. Here are the details:

    -The “religious employer exemption” will not change.

    -However, there will be a 1-year safe harbour for non-exempt, non-profit organizations with religious exemptions (i.e., Catholic hospitals, schools, charities…)

    -During that safe harbour period, HHS will initiate a rulemaking procedure to implement the President’s compromise.

    -The details of that compromise include the following:
    Insurance issuers will have to offer plans WITHOUT contraceptive coverage to the objecting employer.
    However, these issuers shall simultaneously offer such coverage directly to an objecting employer’s plan participants who desire it
    The insurers will have to offer these services free of charge. The Administration has reasoned that insurers can absorb the cost of providing free contraceptives because the insurers are actually saving money in the long term when a woman chooses to use contraception.
    A similar policy will be developed that achievs the same goals for self-insured group health plans sponsored by objecting employers.

    The commentary to the rule in the Federal Register makes it clear that this policy was developed in order to satisfy objections under the Religious Freedom Restoration Act. HHS has reasoned that, because religious employers will no longer be paying for contraceptives (either direclty or through the insurance compnay, since the insurance company has to absorb the cost on its own), there is no long a prima facie case that the mandate substantially burdens religious exercise.

    From a purely legal perspective, I tend to agree. As a Catholic, I fully accept Humanae Vitae and the Church’s teaching on contraception. I believe it is morally wrong for the government to mandte that insurance companies provide contraceptives free of charge, and thereby encourage mortal sin. Nevertheless, there is a difference between encouraging mortal sin and expressly violating the Church’s first amendment rights. Objecting Catholic institutions will only be required to purchase insurance plans that DO NOT include contraceptives. Insurance companies will have the financial burden to absorb the cost of providing these devices free of charge to employees who nevertheless ask for them.

    Is this “revised” mandate, from a moral perspective, a good thing? NO. But does it violate the First Amendment or the RFRA? No.

  22. Dan says:

    From the National Catholic Register:

    WASHINGTON — President Barack Obama on Feb. 10 confirmed that his administration was offering an “accommodation” to religious groups opposed to a controversial federal rule requiring private health plans to provide contraception and abortion services.

    As reported in the media, church-affiliated employers would not have to directly cover those services; instead, their insurance plans would cover them.
    Read more: http://www.ncregister.com/daily-news/what-did-catholic-health-associations-sister-carol-know-and-when-did-she-kn/#ixzz1mTmxFVXC

    The assertion that Church organizations’ insurance plans will have to cover contraception is false. According to the rule, objecting church institutions will be able to purchase plans WITHOUT contraceptive coverage. The insurance COMPANIES, not the CHURCH, will then have the burden of supplying contraceptives to those employees who ask for them. To sum up, the Church’s money will not to to purchasing plans with contraception.

    Is this a moral solution? No. The administration is still requiring insurers to subsidize mortal sin. And that is never right. But there is a big difference between God’s law and man’s law- and this compromise does not offend the law of man as codified in the 1st Amendment. Accordingly, I have to say that the Church no longer has a valid free exercise claim. The bishops should instead concentrate on preaching about the immoraltiy of contraception so that the people in the pews will voluntarily reject this vice.

  23. Supertradmum says:

    What in the heck is appropriate religious freedom?

  24. amenamen says:

    Thank you, jhayes. Clearly this is an outdated statement, issued two weeks ago, on February 2, and belatedly published today in Catholic Health World, a biweekly newsletter. It does not indicate a change in the position of the CHA as stated on February 10.

  25. wmeyer says:

    And where in the Constitution is the provision for the government to limit religious freedom?
    We’d have been better off with Mormons practicing polygamy than we are now with this nonsense.

  26. amenamen says:

    Re-reading Sr. Keehan’s statement, realizing now that it was actually written over a week before her statement on February 10, I am interested in what she meant by saying, “CHA is working closely with the United States Conference of Catholic Bishops …”

    How closely was she working with the bishops when she made her statement on February 10?

  27. Elizabeth D says:

    Supertradmum, that is when the demand for religious freedom exceeds the supply, and it has to be carefully rationed in a way that is appropriate and “fair”. The problem, you see, is that the religious freedom wells are drying up, the earth’s supply of this precious resource is rapidly being exhausted. There is nothing anyone can do about it. That is why it has to be alotted appropriately, while patriotic citizens transition to the use of cheap and plentiful alternatives such as secular humanism and new-ageism.

    (I am kidding)

  28. oddfisher says:

    Dan, you’re missing the point. Every woman who works for a non-exempt organization will have, as a benefit of that employment, free contraceptives, abortifacients, and sterilization. It hardly matters that she’ll be informed of those benefits by the insurance company rather than the employer. They will still be job benefits.

  29. Clinton says:

    Supertradmum asked “What in the heck is appropriate religious freedom?”.

    It’s simple, really. It’s whatever the federal government’s bureaucrat du jour deems to be appropriate.

  30. Supertradmum says:

    Thanks, Elizabeth D, and here I was thinking it was freedom to be like Sr. Keehan.

  31. amenamen says:

    A slip of the … pen?

    Sr. Keehan could use a good editor or proofreader to catch simple errors in American history, like forgetting the first two presidents (or is she including the 44th president among the Founding Fathers?). She has also revised the Bill of Rights, adding the word “appropriate” where it never used to be. Maybe she needs a new pen.

  32. NoTambourines says:

    Supertradmum– Re: “appropriate religious freedom,” I’m reminded of the hollow or vague assurances of religious tolerance that we’ve seen out of places like Iraq or Egypt: everyone will be “free” within the “appropriate” limits of the law, but that all depends on what the laws say and who’s making them.

    The other thing that comes to mind is that perhaps the administration supposes they can make the Catholic ruling against contraception go the way of Mormon polygamy. That would be a completely false equivalence, of course, but what the administration really seems to want is veto power over faith in public life, a socially engineered “Christianity” that does their bidding in the name of a highly selective reading of the Gospels. It is the flavor of the month of liberation theology.

    Our pastor gave a brilliant homily last month on how separation of church and state keeps the Church from being used by the state, and from making politically-motivated compromises to keep from rocking the boat. Of course, there will always be some who can be lured by approval and popularity… and sometimes, apparently, really nifty pens.

  33. wmeyer says:

    Supertradmum, that is another valid summary.

  34. Marc says:

    Sister Carol Keehan, DC, President of the “American Patriotic Catholic Association.”

  35. rodin says:

    That pen is probably contaminated. Burn it!

  36. HyacinthClare says:

    Disturbed Mary, I went to Catholic Charities USA website after reading your post and there’s a box in the middle of the home page: “In response to a great number of mischaracterizations in the media, Catholic Charities USA wants to make two things very clear: 1. We have not endorsed the accommodation to the HHS mandate that was announced by the Administration last Friday. 2. We unequivocally share the goal of the US Catholic Bishops to uphold religious liberty and will continue to work with the USCCB towards that goal. Any representation to the contrary is false.”
    I was about to pull my contribution to the CCD in Phoenix, too. But … maybe not?

  37. Dan says:

    oddfisher,

    I agree- which is why I made sure to state in my comments that I don’t believe this is a “moral” solution. My comments, however, are directed toward the legal issues at stake. Under the new rule, I fail to see a cause of action for Church institutions under the free exercise clause as interpreted by the 1993 Religious Freedom Restoration Act.

    Yes, a woman who works at an objecting, non-exempt religious institution will get contraceptives. BUT, the objecting religious institution will not be paying for them. In fact, the new rule makes it clear that the objecting institution will only be required to purchase insurance coverage that DOES NOT include contraceptives. While I agree that it is not good that women will be given free contraceptives, this new arrangement does not burden anyone’s free exercise rights.

    Is that ideal? No. Is it constitutional? Yes.

  38. wmeyer says:

    “Is that ideal? No. Is it constitutional? Yes.”

    Is it immoral, in that it makes all insured people complicit in funding contraceptives and abortions? Yes.

  39. Mrs. O says:

    Re insurance companies offering it for free now. Really? How about them deciding to charge extra for those who do not use ABC because they see them as an extra liability and having children? Do we trust insurance companies to decide that for us? The only thing free is God’s grace. Everything else we are charged. They will get the money and penalize those who don’t use their preventative care. And this is what is in the Health Care bill too.

  40. APX says:

    Sr. Keehan! GIVE BACK THAT PEN!
    Can someone pleeeease explain the pen thing to me? I’ve seen this mentioned a number of times, but I don’t get it. I feel so out of the loop.

  41. Supertradmum says:

    APX Obama gave it to her after using it to sign a copy of Obamacare, or ObaminationCare

  42. scotus says:

    Living in the UK, I am wary of commenting on events in the USA. However, one thing does strike me. A while ago there was a question mark raised over Michael Voris’s organisation using the word ‘Catholic’. I may be wrong but was there not a suggestion that a Bishop wished to stop the organisation using that word? Now, if a Bishop has the power to stop RealCatholic using the word ‘Catholic’ does the same also apply to the Catholic Health Association? Does any US Bishop have the power to stop the CHA using the word ‘Catholic’ and, if so, which Bishop would that be?

  43. Supertradmum says:

    Martin17773 the article you posted is well, amazing. Here is a quotation for everyone else. “While church-separation is a wise and necessary policy, separation is not about discrimination against, or hostility towards, religion. The regulation, as newly reformulated is clumsy at best, insensitive for certain, and may even be illegally hostile to religion. This one needs to change.”

  44. Supertradmum says:

    Martin17773 the article you posted is well, amazing. Here is a quotation for everyone else. “While church-separation is a wise and necessary policy, separation is not about discrimination against, or hostility towards, religion. The regulation, as newly reformulated is clumsy at best, insensitive for certain, and may even be illegally hostile to religion. This one needs to change.”

  45. aviva meriam says:

    I’m confused about something…. I thought women religious took a vow of obedience. To whom does Sr. Keehan owe her obedience? And isn’t her order required to be obedient to their bishop? I understand Obedience is difficult, but its required… and I wonder how much longer that particular bishop will tolerate her actions.

  46. Dan says:

    wmeyer,

    I agree that the rule is immoral- my comments, as I’ve mentioned before, were focused on the legal analysis. Under this revised rule church institutions will not have to purchase plans that include contraceptive coverage. While insurers, regretably, will have to provide them free of charge for employees of objecting instutions who ask for them, I don’t see how that translates into a cause of action under the RFRA.

    The former incarnation of this madate gave the Church a strong cause of action. It has been modified such that that cause of action is no longer tenable. That is all I’m trying to say…as I mentioned before, I fully accept Humanae Vitae and the Church’s moral teachings on contraception.

  47. Maltese says:

    In that file-photo, is she wearing shirt cuffs? Are nuns replacing habits for shirt cuffs these days?

  48. digdigby says:

    Elizabeth D –
    THAT is very funny, witty and true and deserves the star of the day!

  49. Sissy says:

    Dan,

    “While insurers, regretably, will have to provide them free of charge for employees of objecting instutions who ask for them, I don’t see how that translates into a cause of action under the RFRA.”

    What about religious institutions who self-insure?

  50. oddfisher says:

    Dan, I appreciate the fact that you agree about the immorality of the solution, but you’re folding way to easily. The cause of action is that they are required to provide a benefit in violation of their religious principles. It doesn’t matter that it’s the insurance company that will be telling them about the benefit. It’s still an employee benefit. The claim that the insurance company will provide the service for free is, first of all, highly improbable. Since when do insurance companies give away drugs? If it were really a savings for the insurance company to give away birth control, as the accommodation supporters claim, they’d be giving it away to everyone. The employers will be paying in the form of higher premiums from themselves and their employees.

    More important, the cost is irrelevant. Even if insurance companies could print money and give away drugs, the mandate to supply the benefit is with the employer, not the insurance company The *employer* is required to contract with an insurance company that will supply the services. It’s not an independent deal between the employee and the insurance company. The regulation requires the employers to affirmatively act in violation of their religious principles. That is the grounds for action.

  51. Dan says:

    Sissy,

    I was concerned about that as well- as of now, the revised rule states, “The Departments intend to develop policies to achieve the same goals for self-insured group health plans sponsored by the non-exempted, non-profit religious organizations with religious objections to contraceptive coverage.”

    So, if they apply the same rule to these organizations as they plan on applying to employers who purchase insurance coverage, the financial burden will be on an insurance company to independently provide contraceptives free of charge to those who request them- and the employer will not have to pay for policies that cover it. We’ll have to wait and see how this rule is actually formulated in the coming months.

    oddfisher,

    Technically, under the revised rule, religious employers who don’t fall within the narrow “religious exemption” but still object to contraception will not be required to provide contraceptives in violation of their religious beliefs. I agree that if the rule required Catholic employers to purchase insurance plans for their employees that included contraceptive coverage, we would still have a strong cause of action under the RFRA.

    However, objecting employers will now have the option to purchase plans that do not subsidize contraception. In turn, the financial burden will be on insurance companies to offer contraception free of charge directly to employees of these institutions who ask for it.

    As to cost, the rule simply states that insurers will be required to offer contraceptives “free of charge.” The administration justifies this on the grounds that insurance companies will save money by offering contraceptions in lieu of paying for pregnancy, miscarriage, etc. The mathematics of the culture of death, I suppose. Even so, there is no financial burden to pay for immoral products/services that will be placed on religious employers.

    So, to make a long story short: the insurance companies, and not religious employers, will be required to make available, and absorb the cost of, FDA-approved contraceptive drugs.

    Subsidizing sin is obviously wrong. But under the revised rule, the religious employer is not the one subsidizing it. Thier money will only go to purchase a plan that does not include contraceptives.

    So, to answer your question- does this new scenario (as immoral as it is) translate into a cause of action that church institutions could bring in Federal court? Unfortunatly, no. SCOTUS has held that one’s free exercise rights are “substantially burdened” (and you would have to show this in order to make a prima facie case under the RFRA) if you are forced to change your religiously-based policies or behavior in order to comply with a law. Under the new rule, Church institutions that object to contraception and have refused to cover it will not have to change anything. They will not have to purchase insurance plans that provide contraceptive coverage, nor will they have to directly pay for it (as they would have had to do under the old rule).

    The only ones who will have to change are the insurance companies, who are now being mandated to provide contraception to employees in lieu of the objecting religious employers. Should a religious insurance company object to this, they will likely have a cause of action. But for run of the mill Catholic employers, the only cause of action I see under the RFRA would arise if they are forced to “refer” employees to insurance companies for contraceptive services. This would force church institutions to engage in beahvior that is morally unacceptable. That may suffice to bring a plausable claim.

    So, while I detest the fact that the federal government is going to make insurance companies hand out contraceptives like halloween candy, I don’t think this immoral agenda translates into a free exercise claim for Catholic employers under the law as it currently stands.

    BTW, for citation purposes, the text of the new rule that I’ve been refering to throughout this thread can be found in Volume 77, Number 31 of the Federal Register, available at http://www.gpo.gov/fdsys/pkg/FR-2012-02-15/pdf/2012-3547.pdf

  52. catholicmidwest says:

    I personally have no respect for those who sold out to Obama and the Democrats on this issue. The Church was played like a dime store harmonica and frankly, they asked for this. They shouldn’t be surprised that they got it.

  53. catholicmidwest says:

    PS. I hope they learned their lesson, but I am not optimistic on that.

  54. CharlesG says:

    @Dan: What’s to prevent the insurance companies from raising premiums for the other non-contraception mandated items from the employers in order to cover costs of the “free contraception”? If the employers are still paying a hidden fee for the contraceptive coverage, I would think there still might be a legal problem. And like another poster above I am skeptical that the insurers will save money by offering the service free, otherwise they would always offer it free in all policies.

  55. Dan says:

    CharlesG,

    You raise a valid point. In this case, the rule actually requires that insurers offer contraceptives free of charge.

    If, however, this cost were to be “passed on” to religious employers who are purchasing plans w/o contraceptive coverage, we would be in the morally problematic position of giving money to a company that is dispensing immoral products and services, albiet not paying for those services directly.

    My area of expertise is the law, not moral theology. Does anyone know what degree of cooperation in sin this scenario would present? More importantly, would it be great enough to satisfy the legal definition of a “substantial burden” on free exercise rights?

    See Thomas v. Review Bd. Of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) (substantial burden defined as one that “put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.”); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (burden is substantial if it forces a person to “choose between following the precepts of her religion and forfeiting [governmental] benefits, on the one hand, and abandoning one of the precepts of her religion … on the other hand.”). Many of the circuits have articulated definitions of “substantial burden” consistent with this example. See, e.g., Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004) (defining it as a burden that “truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs”); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (defining substantial burden as “result[ing] from pressure that tends to force adherents to forego religious precepts …”)

    I know that’s a lot of legalese, but this is a good discussion that I’d like to keep going…

  56. dcnmike51907 says:

    “You raise a valid point. In this case, the rule actually requires that insurers offer contraceptives free of charge.”

    The first thing we need to realize is that there is no such thing as “free of charge.” The insurance companies are not going to simply absorb the cost of these contraceptives and even Obama cannot force them to do this. Everything gets passed on to the consumer in that when setting prices all expenses are taken into account in order to assure a profit. Just because contraception coverage is not itemized on the bill does not mean you are not still paying for it.

    Secondly, this is coverage to prevent something that is not a disease. If you want to take steps to prevent pregnancy you have the right to do so but you do not have the right to use other peoples money to do so. Insurance is supposed to be a safety net to pay your bills in the event you have an accident, become ill or die. It is not supposed to be a funding source for politicians social engineering schemes.

  57. catholicmidwest says:

    There is a summary of the cases against Obamacare online. Search healthcarelawsuits (all one word) in Google and you’ll see it there. If you poke around in that site, there’s a lot of helpful information about claims that are being made against Obamacare which is the PPACA really. This site doesn’t include the latest ones announced just lately over the mandate itself, which is just one small part of PPACA.

    On the HHS mandate itself, I think that there are a number of lawsuits already, some of them pre-dating this latest burst of activity. I know Belmont College has one, EWTN has one, and I believe Priests for Life also has one.

  58. HeatherPA says:

    I am very wary of Sr. Keehan…
    I had emailed her my dismay when she supported this mandate, and a great number of my friends did as well. I never received a response.

  59. wmeyer says:

    “…the financial burden will be on insurance companies to offer contraception free of charge directly to employees of these institutions who ask for it.”

    Sorry to have to report this, but there is still no free lunch. Nothing will be offered free of charge. Rather, the cost of this gift will be amortized over all the customers of each of the insurance companies. Given that reality, then is it also true that all insurance customers are effectively placed in the position of paying for services they may not require, and which may violate their faith. And inasmuch as health insurance is legally considered a part of an employee’s compensation, then it is not only the employers who are paying, but the employees, as well.

  60. Sissy says:

    Dan,

    Thanks for addressing my concern about self-insurers. According to insurance industry consultant Robert Laszewski in an article on NPR yesterday (“Does Contraception Really Pay For Itself?”), self-insurers pay all health care costs themselves out-of-pocket. They only pay an insurance company to administer the policy. So, there isn’t any insurance company to fall back on to provide the supposedly free birth control. He also made the point that it isn’t actually cost effective for insurance companies to absorb the cost (or they would already do it), so they definitely will be passing them on in the form of higher premiums. Finally, this so called “accommodation” leaves business owners who object to providing birth control services on the hook. The USCCB statement from Friday evening expresses concern for employers who might not be covered by the proposed accommodation.

  61. Gail F says:

    Dan: As a lawyer, please tell me how it is legal for the President of the United States to decree that a private company (an insurance company) provide products and services for free.

    To accept that this directive makes the rule constitutional, you must accept that it is legal in the first place AND that the insurance companies will actually provide the services and products out of their own pockets. The latter is, I think, ridiculous. If it were going to save them money they would already be doing it, and as it will cost them money they will OF COURSE charge everybody else for it. So it is absurd to assert that the insurance companies will accept this as a cost for doing business that they can’t charge extra to make up for. But that aside, pretending for a moment that they would actually do so — how in the world does the President, much less the Department of Health and Human Services, have the power to order them to do so? And if they do, why don’t they just order insurance companies to pay for EVERYTHING?

  62. chantgirl says:

    I am not a lawyer, but I wonder if the best way to cut the legs out from Obamacare in the courts would be to challenge the mandate that forces citizens to buy a product (healthcare insurance), and the mandate that forces private companies to give a product away for free (HHS mandate). I just wonder if Obama wants to make the health insurance business so burdensome and unprofitable that the private sector decides that it’s not worth it. Then the government will step in to save us from the costly business of insurance by providing it directly. That is my fear. The day that government will administer health care is the day that we will see our values attacked in a way that makes the HHS mandate pale in comparison. Forced contraception, forced sterilization, euthanasia, abortions paid for by the government- it’s all in the cards. Anyone who thinks this is hysterical need only look at Mexico, where women in poor areas who come to the hospital to give birth are forced to sign documents that they do not understand (while they are in labor, mind you), and the hospitals then proceed to sterilize them (without their knowledge) or implant IUDs without telling them. All of us Catholics who breed a little too conspicuously, especially the poorer families, just don’t know what’s best for us yet, and HHS is going to try and educate us. When I heard Judge Andrew Napolitano commenting on Obamacare after it had just been passed, he stated that the law made provisions for armed troops to help facilitate the health care law. I wondered why armed troops would be necessary to implement a health care law. I hope my imagination is just running away with itself here, but I fear it is not.

  63. Bea says:

    Perhaps HHS felt secure that the Bishops would go along with the mandate since they supported Obama-care in the beginning.
    Perhaps HHS recognized that the CHS is NOT really Catholic though the Bishops have not yet realized it.
    QUOTE:
    “The impact of being told we do not fit the new definition of a religious employer and therefore cannot operate our ministries following our consciences has jolted us.”
    I wonder if Sr. Keenan will be jolted enough to realize she has not been acting as a Catholic (nun or lay-person) and will she be jolted enough to re-evaluate that conscience she claims to follow.
    Beside the cuff link shirt, I also noted she is not even wearing a cross that would make her recognizable, even at least as a Christian. I’ve always noticed that before a religious sheds the habit, she has already shed the rules of the order or some dogma of the Church. The “outer wear” reflects the “inner (spiritual) wear”

  64. Mdepie says:

    One of the many odious things about this vile mandate from the tyrants controlling the executive branch is being overlooked. The problem is not solved if Catholic organizations exempted. Secular employers who happen to be Catholic should not be mandated to buy insurance that provides for things that are greviously immoral. The Bishops have mentioned this in passing, but there needs to be a greater focus on it. Imagine a Catholic business owner who employs say 50 people. IT seems to me that he would be forced to either close, pay a fine that puts him out of business, or comply with this immoral edict and directly buy insurance that finances abortifacients. Remember the private business owner is not even getting the fig leaf of the illusory accomodation. I do not see Sr. Keehan and this whole lot of quslings care much about the plight of the person in that situation. Thats largely because It is doubtful that these people believe the teaching of the Church on this contraception and abortifacients. They do not act like they believe it in any case. They have long ago left the Church.

  65. Dan says:

    wmeyer,

    Very true. Nevertheless, the legal question that courts will have to decide in the Belmont Abbey and EWTN cases is whether the current rule imposes a “substantial” burden on religious free exercise. That needs to be shown in order to make a prima facie case under the RFRA. Per the cases I cited above, that means an individual or institution would have to change its religion-based policies or behavior in order to conform with the law. If a church institution will only be required to purchase plans that DO NOT cover contraception, I don’t see how they will be compelled to do something that would change thier current religiously-based policies. Under the former version of the mandate, the case was very clear. Church institutions would be compelled to change their policies by purchasing birth control or plans that covered it. That was an open and shut case, which is why the administration changed the details of the rule. Whether or not purchasing policies without contraception in some way goes to fund the “free” contraception that will be independently offered by insurance companies gives rise to a claim under the RFRA is a much more difficult question, and will probably be resolved by courts against the church in the summary judgment phase. We would have to show that Catholic belief compels us to refrain from buying non-sinful products and services from a company that independently offers sinful products and services. I.e, is it a sin for me to buy a coke from the local drug store because (like virtually all gas stations and convenience stores) they also sell contraceptives and playboy magazines? That’s the same question courts will ask regarding this current mandate, and I don’t think that (legally speaking) the answer will translate into a “substantial burden.”

    Gail F & chantgirl,

    Your instincts are correct…the text of the constitution is certainly at odds with the bureaucratic state in which we now live. The Commerce Clause, however, (U.S. Const., Art. I, § 8, cl. 3) gives Congress the power to regulate commerce among the several states. Over time, SCOTUS has expanded the meaning of this clause so that the federal government now has the power to regulate:

    (1) the channels of interstate commerce,
    (2) the instrumentalities of interstate commerce, and
    (3) activities that substantially affect interstate commerce, whcih may include completely inner-state activities.

    The only Federal Circuit Court of Appeals to have decided against the government in the Obamacare cases is the 11th Circuit. Even then, the court upheld most of the act, and only found the “individual mandate” to purchase health insurance to be unconstitutional. See Florida ex rel Atty. General v. U.S. Dept. of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011). The court reasoned that an individual’s decison not to purchase health insurance does not constitute economic “activity” within the meaning of the commerce clause. The administration, in a somewhat Orwellian manner, has argued that “inactivity” can be “activity” when that inactivity affects the interstate insurance market.

    I certainly hope that SCOTUS rejects the administration’s argument and finds the individual mandate unconstitutional. If not, we’re looking at a precedent that would extend a virtually unlimited police power to the federal government- something the founders never intended in their wildest dreams.

    But, in the end, the only way to really solve the problem is to deny Obama another four years. Let’s hope the GOP can select a candidate who will be able to win.

  66. Bea says:

    Good point , Mdepie,
    The private sector is at risk from this tyranny from the WH also.
    No exception should be necessary for religious enterprises because we should ALL be protected to follow our conscience.
    Unless, of course, to follow one’s conscience in that religion called “Choice” in which human sacrifice is necessary to keep it alive.

  67. CharlesG says:

    We would have to show that Catholic belief compels us to refrain from buying non-sinful products and services from a company that independently offers sinful products and services. I.e, is it a sin for me to buy a coke from the local drug store because (like virtually all gas stations and convenience stores) they also sell contraceptives and playboy magazines?

    The analogy is not exact, since the drug stores are charging separately for the contraceptives and porn, so the money for the coke does not subsidize the sale of the offending goods. The analogy would be better if the drug store were offering this items free of charge. I would grant that it might be difficult to prove that the premiums paid by employers for non-contraceptive policies go to subsidize the provision of free contraceptive coverage, but I believe there is a real concern there. Perhaps if one could consistently show that the premiums for the non-contraceptive policies were systematically the same or higher than premiums for similar plans with such coverage.

  68. Toan says:

    “As to cost, the rule simply states that insurers will be required to offer contraceptives “free of charge.” The administration justifies this on the grounds that insurance companies will save money by offering contraceptions in lieu of paying for pregnancy, miscarriage, etc. The mathematics of the culture of death, I suppose. Even so, there is no financial burden to pay for immoral products/services that will be placed on religious employers.”

    Dan,

    As a former analyst, I’ve got three issues — for now — with the argument that contraceptives can be given “at no cost”.

    First, there is an upfront cost to the contraceptives, abortifacients, and sterilizations. One can argue that the long-term cost of contraceptives is zero. The fact remains that the short-term cost is greater than zero. This we can be sure about. The long-term cost must be argued, and is much harder to argue with certainty.

    Second, do health insurers agree with the Administration’s claim that the long-term cost of contraception etc. is zero? They very well may not, as they weren’t consulted about the rule. Their analysis are likely to be varied (they all have different data and analysts) and very different from the Administration’s likely politically tainted analysis.

    Third, unless we see their exact calculations, study them, and find them reasonable, should we not reject the claim that insurance companies will save money by offering contraception? Their calculations probably exaggerate the health care cost of children, ignore the biological benefits of childbearing to parents (e.g. lowered risk of breast cancer), ignore the costs of contraception use (e.g. significantly increased risk of breast cancer see here), and make other mistakes.

    We should not take their word for it when they say that there is no cost to contraception.

  69. Dan says:

    CharlesG and Toan,

    Thanks for your input…those are all excellent points and I agree with both of you. This discussion has been helpful as I continue to re-work my legal analysis of the issue in light of the latest developments. So, in summary, here is where I stand now:

    1) the ‘revised’ mandate is still morally unacceptable, as anyone who does business with insurance companies is in some way contributing to the subsidization of “free” contraceptives.

    2) I stand by my conclusion that the free exercise claim is not as strong as it was a week ago – but, as CharlesG noted, if we can show a direct relationship between premiums paid by church organizations and the subsidization of contraception by insurance companies, the case would be better than I thought yesterday. Alas, the definition of “substantial burden” as handed down by the courts may not encompass this scenario, which leaves us with two options: overturn this mandate in congress, or vote Obama out of office.

    Both would be fine by me!

    Thanks everyone for your insightful discussion.

  70. Martial Artist says:

    I am pleased to announce that we at Toepfer’s Antiques and Collectibles are now able to offer a reliable estimate of the value of the pen given by President Obama to Sr. Carol Keehan of the CHA. We can reliably assert that the true market value of the pen in question is in the very near vicinity of thirty (30) pieces of silver, which is approximately the market value of one (1) potter’s field.

    Keith Töpfer