Lines Crossed: Separation of Church and State
Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?
US House of Representatives Committee on Oversight and Government Reform (16 February, 2012)

Testimony of John H. Garvey

President, The Catholic University of America

Hearing Website  |  Panel I Video  |  Panel II Video

[PDF File]  My name is John Garvey. I am the President of The Catholic University of America. The University was founded by the American Catholic
bishops, and received formal papal approval 125 years ago this year. It was created as a graduate institution of higher learning after the pattern of the Catholic University of Louvain in Belgium, The Johns Hopkins University (1876), and the German research universities. Since 1904 it has also educated undergraduates. The University's bylaws vest the determination of policy and the supervision of the management of the corporation in the Board of Trustees. 24 of the Board's 48 elected members must be clerics; at least 18 of those 24 must be members of the United States Conference of Catholic Bishops. Cardinals who are diocesan bishops in the United States are counted among the clerical members of the Board. The Archbishop of Washington is ex officio the chancellor of the University. The President of the University is appointed by the Board and approved by the Vatican Congregation for Catholic Education.

The University comprises twelve schools, including Arts & Sciences, Engineering, Nursing, Music, and others. Three of the schools - Philosophy, Theology and Religious Studies, and Canon Law - are pontifical faculties. This means that they are accredited by the Holy See, and that their courses, programs, and degrees have canonical effects.

The Board of Trustees adopted this mission statement at its December 2006 meeting. The statement applies to all the schools in the University, not just to its pontifical faculties:

As the national university of the Catholic Church in the United States, founded and sponsored by the bishops of the country with the approval of the Holy See, The Catholic University of America is committed to being a comprehensive Catholic and American institution of higher learning, faithful to the Teachings of Jesus Christ as handed on by the Church. Dedicated to advancing the dialogue between faith and reason, The Catholic University of America seeks to discover and impart the Truth through excellence in teaching and research, all in service to the Church, the nation, and the world.

Throughout its history the Rector (now called the President) of the University has been a Catholic. Of its 15 Presidents, 12 have been clerics. The University does not require that faculty and staff be Catholic, though 52% of the faculty are. The University does, however, inform all employees at the time of their appointment of their obligation to support the University's Catholic mission. The appointment letter sent to each new University employee states:

The Catholic University of America was founded in the name of the Catholic Church and maintains a unique relationship with it. The University's operations, policies and activities reflect this foundation and relationship and are conducted in accordance with its stated mission. Regardless of their religious or denominational affiliation, all employees are expected to respect and support the University's mission in the fulfillment of their responsibilities and obligations appropriate to their appointment.

All new staff employees participate in an orientation conducted by the Office of Human Resources. During the orientation new employees receive a copy of the University's mission statement.

The student body in total numbers almost 7,000. Undergraduates comprise 3,633 of that total; 81% of them are Catholic. 59% of the graduate students are Catholic. Most undergraduates are housed on campus in residence halls that are predominantly (and will soon be entirely) single-sex. Priests, religious women, and married couples live among the students in the residence halls - an arrangement the University has undertaken to enlarge in recent years. Undergraduate student ministers (predominantly juniors and seniors who work for the Office of Campus Ministry) also live among the students in the residence halls and work to spread the message of the gospel among their classmates by word and example.

The Office of Campus Ministry has principal responsibility for the care of students' spiritual welfare. It comprises a full-time staff of ten, plus five graduate assistants, 15 work-study employees, 19 student ministers, and three student sacristans. A majority of undergraduate students attend mass weekly or oftener.

Campus Ministry and the Office of Student Life recognize more than 50 student groups that promote the life of the faith among undergraduate and graduate students. Groups like Esto Vir, Gratia Plena, and Live Out Love affirm the virtue of chastity. Students for Life promotes respect for life from the moment of conception until natural death. This year more than 200 students volunteered to host some 1,200 high school students on campus for the annual March for Life.

THE HEALTH AND HUMAN SERVICES JANUARY 20 REGULATIONS

Thomas Jefferson wanted to be remembered on his tombstone for three things: that he was the father of the University of Virginia, and the author of the Declaration of Independence and of Virginia's Bill for Establishing Religious Freedom (1786). Along with Madison's Memorial and Remonstrance, Jefferson's Bill for Establishing Religious Freedom was one of the most important documents defining the principle of religious liberty that found its way a few years later into the first amendment. Jefferson's Bill says "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical[.]" The Department of Health and Human Services (HHS) has done precisely that in its recent regulations concerning mandated services.

On August 1, 2011 HHS published an interim final rule requiring most health insurance plans to cover, at no added cost to subscribers, sterilization procedures and prescription contraceptives, including pills that act after fertilization to induce abortions.1 On January 20, 2012 HHS announced its intention to make the rule final.

The final rule includes an exemption for churches and religious orders. The exemption does not cover colleges and universities (like The Catholic University of America), religiously affiliated hospitals and health care systems, or religious social services organizations (like Catholic Charities). To be exempt, institutions must exist for the purpose of inculcating religious values. They must also employ and serve "primarily persons who share the religious tenets of the organization."2 The final rule would thus force a Catholic hospital or soup kitchen, if it wanted an exemption, to ask not "Are you sick (or hungry)?" but "Are you Catholic?"3

Consider how this rule bears on nonexempt religious institutions like The Catholic University of America. We teach our students in our classes that marriage is a sacrament in which spouses share in the creative work of God. We teach that it is wrong for couples to close themselves off to the possibility of life, through artificial methods of contraception or through sterilization.4 And we teach that abortion is a grave wrong because "[h]uman life must be respected and protected absolutely from the moment of conception."5 We reenforce these same messages in the evangelism of Campus Ministry, in the work of our Student Life division, in the activities of our student organizations, and in the daily interactions that faculty, staff, and administration have with our students.

The final rule forces the University to violate its deepest convictions in two ways. First, it requires the University to pay for drugs and procedures that we view as morally wrong, often gravely so. Jefferson said it was sinful and tyrannical "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves." How much more evil to compel financial support for putting those opinions into practice. The mandated services regulations order The Catholic University of America to become the provider of contraceptives, sterilizations, and abortions for its students, faculty, and staff.

Second, the rule forces us to deny in one part of our operation what we affirm in another. We teach our students in our classes, in our sacraments, and in the activities of Student Life and Campus Ministry that sterilization, contraception, and abortion are wrong. The rule requires our Human Resources staff to offer these very services to our students at no additional cost, as part of our health insurance program. It makes hypocrites of us all, in the most important lessons we teach.

THE FEBRUARY 10 REVISION

. . . there is no real difference between the January 20 and February 10 policies. In both cases the cost of mandated services will be rolled into the cost of an insurance policy which federal law requires the University to buy.

In response to extraordinarily widespread criticism of the January 20 final rule, the President announced on February 10 that HHS had designed a scheme that would relieve some additional religious institutions from the burden of providing mandated services, while still providing those services to all women affected by the final rule. The proposed solution is this: when a religious institution like The Catholic University of America objects to including mandated services in its health plan, the insurance company with which we contract will have to furnish those services to our subscribers (at no added cost to the subscribers).

It is hard to see how this revision changes the picture. Here is how Economics Professor Greg Mankiw at Harvard University describes it:6

Consider these two policies:

A. An employer is required to provide its employees health insurance that covers birth control.

B. An employer is required to provide its employees health insurance. The health insurance company is required to cover birth control.

I can understand someone endorsing both A and B, and I can understand someone rejecting both A and B. But I cannot understand someone rejecting A and embracing B, because they are effectively the same policy. Ultimately, all insurance costs are passed on to the purchaser, so I cannot see how policy B is different in any way from policy A, other than using slightly different words to describe it.

In other words there is no real difference between the January 20 and February 10 policies. In both cases the cost of mandated services will be rolled into the cost of an insurance policy which federal law requires the University to buy.7 The only real change is that the insurance company, rather than the University, notifies subscribers that the policy covers mandated services with no co-pay.

The administration suggests that there really is a difference, because insurance companies (now that they have been ordered to provide free services) will discover that their costs actually go down. The February 10 announcement claims that there are "significant cost savings to employers from the coverage of contraceptives. [These include] both the direct medical costs of pregnancy and the indirect costs such as employee absence and reduced productivity."8 Because there will be no added costs, religious institutions will not actually have to pay for the mandated services. We might call this the Shazam Theory. It resolves the intrusion on religious liberty by making the compelled contributions magically disappear.

We do know that coverage of surgical sterilizations and prescription contraceptives (including abortifacients like ella) has a cost. Senators Shaheen, Boxer, and Murray estimate that the cost of contraceptives alone is $600 per woman per year.

We do know that coverage of surgical sterilizations and prescription contraceptives (including abortifacients like ella) has a cost. Senators Shaheen, Boxer, and Murray estimate that the cost of contraceptives alone is $600 per woman per year.9 These costs will certainly be included in the future price of insurance policies. Insurance companies, acting in response to market forces and the profit motive, have not hesitated to cover the cost of things (like subscriber gym memberships) that actually do save the companies money. Perhaps they have not yet discovered the savingspossibilities inherent in the administration's Shazam Theory. But I worry that this is a case where participants in the political market have made a bet that they can outwit the private market, and the stakes they are playing with are our religious freedom. Here is a more important point. From a moral point of view, the administration's cost savings don't matter even if they are real. When a student who is enrolled in our plan purchases contraceptives at the local CVS pharmacy, CVS will seek payment from the insurance company. The payment for that service will be charged to our account, funded by our contributions. The Shazam Theory assumes that charges for other drugs and services will go down as a result of contraceptive use. But it is still true that the University and its subscribers are being forced to pay for sterilizations, contraceptives, and abortions, and those are activities we view as immoral.10

A more likely explanation for the rule is that HHS is acting on a political agenda about how women should live their sex lives. The February 10 announcement discloses this agenda in fairly plain terms. "A broader exemption," the announcement states, "would lead to more employees having to pay out of pocket for contraceptive services, thus making it less likely that they would use contraceptives, which would undermine the benefits described above."11 HHS might wish to increase the rate of abortions, sterilizations, and contraceptive use by students and employees at The Catholic University of America. It has shown a desire to conscript the University and its insurer in the service of that agenda. But it is our religious belief that these activities are wrong. A decent respect for the principle of religious liberty should leave us free to act on our belief.

Notes

1. 76 Fed. Reg. 46621 (Aug. 3, 2011).

2. 45 C.F.R. § 147.130(a)(1)(iv)(B)(2)-(3).

3. Even if Ascension Health and Catholic Charities hired only Catholics and limited their services to Catholics, they would still not be exempt. The rule also requires that an exempt organization must be "a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R. § 147.130(a)(1)(iv)(B)(4). Those sections refer to the few nonprofits (churches, their integrated auxiliaries, and religious orders) that are excused under the tax law from filing an IRS Form 990.

4. Humanae vitae 14 (July 25, 1968); Familiaris consortio 32 (Nov. 2, 1981); Catechism of the Catholic Church 2368-2370.

5.  Id. at 2270.

6. https://gregmankiw.blogspot.com/

7. Under our plan the University pays between 64% and 74% of the total cost (depending on the option selected) for nearly all employees.

8. The announcement has not yet been published in the Federal Register. The quotation in text is taken from the on-line version of Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act TAN 8 (February 10, 2012).

9.  Jeanne Shaheen, Barbara Boxer and Patty Murray, "Why the Birth-Control Mandate Makes Sense," Wall St. Journal A15 (Feb. 8, 2012).

10.  Suppose the administration believed that we could reduce our overall health care costs by covering infanticide for young mothers who found their children a burden. And suppose that HHS devised a plan under which the necessary drugs would be charged to Catholic University's account. Would we have no moral objection to that plan if the government could show that it saved us money?

11. Group Health Plans, supra note 8, at TAN 14.