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
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. . . . Second, the rule forces us to deny in one part of our
operation what we affirm in another. . . It makes hypocrites of us all,
in the most important lessons we teach.
Good morning.
[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.