So, I posted my initial thoughts on this topic in a post here as my thoughts on the topic began to gell. I also participated in a discussion on this topic in posts on Fr. Christian’s blog here and here. I also went back and read the actual rule from last August. (The January announcement was simply that they weren’t going to change the religious exemption portion of the regulation, but would give religious employers an extra year to comply.) As I read the rule, I noticed it referenced existing state laws requiring contraceptive coverage. And that piqued my interest, so I broadened my research. The things I found were … interesting.
First, I found a site that collected information on the states that require contraceptive coverage. In short, over half of US states already require some form of contraceptive coverage, many of them for a decade or more. Many of them have some form of religious exemption. Some of them have no exemption. It’s when I began reading the state laws that I noticed they tended to use very similar language when they did provide a religious exemption. Some of them even cited a specific definition from the U.S.C. So I looked up that definition. It’s in 26 U.S.C. section 3121(w)(3)(A) and (B).
(A) For purposes of this subsection, the term “church” means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally supported by a church or by a convention or association of churches.
(B) For purposes of this subsection, the term “qualified church-controlled organization” means any church-controlled tax-exempt organization described in section 501 (c)(3), other than an organization which—
(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and
(ii) normally receives more than 25 percent of its support from either
(I) governmental sources, or
(II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.
That’s actually very similar, if not identical, to the definition for religious exemption used in the HHS regulation. Notably, there’s no way a hospital or a university could meet the criteria for section B.
What does this mean? Well, basically it means that HHS was stating a fact when they said in the rule that the definition used was the one already in use in many of the states that required contraceptive coverage and allowed a religious exemption. Apparently Catholic hospitals and universities have continued to function in these different states just as they do in countries that provide contraceptive coverage to their citizens. I don’t recall hearing any outrage over these various state laws expressed. That doesn’t mean there wasn’t any, but I don’t recall it and haven’t found any evidence of it. I also haven’t yet discovered if there were any legal challenges. However, if there were, given that these laws are still standing, they must have been unsuccessful. The HHS rule is neither unprecedented nor new. It would seem to have a pretty solid legal foundation.
Speaking the truth is important. And speaking the truth means more than just avoiding outright lies. It often means speaking the whole truth and not just the parts that serve your goals. It means expressing those truths in a way that avoids manipulation, distortion, and propaganda. That’s one of the reasons that, when I discuss things, I try really hard to provide the sources that are forming my opinions so that others can read them, check what I’m saying, and form their own opinions.
The deeper I’ve explored this issue the more evidence I’ve found that the Obama administration has simply spoken and written truth. The US Catholic Bishops? I’m not so sure. Why are they outraged at this rule and not the many other long-standing state laws that are either substantially the same or even more restrictive than the HHS rule? Why are they speaking as though this sort of requirement was something new and radical when it isn’t? Those are some of the questions that begin to work their way through my mind.
The Bishops may be completely innocent of any intent toward propaganda and utterly sincere in their protestations. But when I keep finding things that aren’t mentioned by them in the discussion, it makes me wonder. I tend to be suspicious of institutions, power structures, and people who wield power anyway. And I’m sensitive, perhaps overly sensitive, to manipulation. My childhood was not innocent and I learned a lot of lessons that perhaps a child shouldn’t have to learn. I want to think the best of people, but there’s a part of me that has a very difficult time actually doing so.
Perhaps someone reading this will see through a different lens and offer a more positive perspective.
Update: And this is an EEOC decision from all the way back in 2000 regarding contraceptive coverage. It also references a Pregnancy Discrimination Act which apparently at that time had a Supreme Court decision supporting it. (I haven’t found or read the decision yet.) It does help explain how those states that passed laws allowing no religious exemption at all were able to do so.