Health and Human Services’ Sacrosanct Mandate

Reams of paper emanate from the U.S. Department of Health and Human Services (HHS) about how to “accommodate” religious groups that are upset by the recent HHS mandate. Yet for all the fallen trees, HHS ignores a neuralgic point: the government has overstepped its boundaries when it defines what constitutes religious ministry.

The mandate, for the few who do not know it, would force employers, even religious ones, to accept contraceptives, including abortion-inducing drugs, and sterilization as part of their health coverage for employees. It offers a narrow religious exception that, among other things, defines a religious organization as one that hires primarily its co-religionists, serves primarily its co-religionists, and has as its purpose the inculcation of religion. In short, it dismisses the work of the Good Samaritan, who modeled helping another because of his or her need, not creed. The mandate seems to declare as non-religious hospitals that do not ask for a baptismal certificate in the E.R., soup kitchens that ask “Are you hungry?” instead of “Are you Catholic?”, and shelters that do not teach the Apostles’ Creed before giving a stranger a bed for the night.

This miserly definition of a religious ministry was devised by the American Civil Liberties Union for a law related to contraceptives in California, and HHS has adopted it as if it were wisdom from the Oracle of Delphi.

Until now the federal government has respected the church’s role in defining its ministries and has not tinkered with doctrine. Despite this history, however, HHS and the rest of the Administration now are digging in their heels on the neuralgic point. They stick to the ACLU definition unreasonably, even while saying it’s only for this health care regulation and won’t apply to others. They turn a blind eye on those of us who shudder at Caesar’s defining what constitutes a church ministry.

Why President Obama seems to have chosen this moment to become theologian-in-chief is a mystery. Why should Caesar weigh in on theological questions such as what ministry is religious enough? Distributing Holy Communion at the altar? Yes. Distributing bread in the soup kitchen? No. He might have to meditate on where the loaves and fishes on the hillside would fit, in this theological framework.

HHS seems to be torturing itself to facilitate ways to apply the mandate while circumventing religious freedom. On March 16, it floated some ideas to which it wants the public to respond. Here’s hoping they do.

In the past, numerous health care laws have refrained from defining how religious the objecting entity was – they simply said, for example, in the federal employees' health plan, that an insurer was exempt from the mandate if it had "a religious objection," or in that program and others, that health care providers, whether individual or institutional, didn't have to take part if that would violate their "religious beliefs or moral convictions." The emphasis was on the nature of the objection, rather than on what kind of other ministries the entity engages in to make it "religious."

Perhaps it is time to de-sanctify the ACLU definition of religious ministry and find an approach with which the country can live peacefully. The Administration, HHS, and the bishops, as well as the hungry, the hospitalized and the homeless, would sleep better for it.