BISHOPS' GAMBIT

This piece was originally written for publication by a local newspaper.  The editor of that paper had invited me to write from a progressive perspective.  Unfortunately, he had a habit of forgetting to publish my work.  I withdrew permission for that paper or any of its affiliated papers to publish my work.

You probably saw the overly simplistic ad sponsored by the Roman Catholic Diocese of Saint Louis demagoging the mandate that employers provide their female employees with a birth control option.

 

The first woman said: “You wouldn’t force an atheist to buy a Bible.  It’s that simple.” Then the second, “You wouldn’t force a vegetarian to buy you a hamburger. It’s that simple.” Finally the last intones  “Why, then, would you ask a Catholic employer to purchase your birth control?”

 

It is not that simple. No one is asking the Catholic Church, operating as a Church, to provide female employees with birth control.  The Church wants to be empire within the Republic.  By that I mean it wants not only to be the Church, but the dominant force in the hospital industry, and its own insurance company.

 

There is a long tradition of Catholic Hospitals, a good tradition.  And we are no longer in the age where nuns man the wards and work for nothing.  Today's Catholic Hospitals are modern facilities competing successfully in the marketplace.

 

Across the nation Corporate Healthcare is the template for Catholic Healthcare.  Wealthy Catholic systems purchase smaller hospitals, often to extend health services to the less fortunate, requiring Catholic standards regarding reproductive rights be enforced by secular institutions.  This imposes Catholic theology on institutions and employees that do not share Catholic beliefs.  In this respect the Catholic Church is trying to do an end run around the First Amendment rights of others.

 

As a practical matter strict bans on birth control and choice have not always worked.  The Catholic part of the equation has made arrangements for physicians to lease a floor of the hospital with a separate elevator entrance so that women had full access to their health care choices. Creating this Chinese Wall did not seem to violate Catholic religious liberty, as long as the revenue continued flowing.

 

Self-insurance complicates the Bishop's gambit to extend the cloak of religious liberty to traditional secular activities.  It also tossed a wrench into the compromise forged by the White House with the Catholic Church.  That compromise tried using the same Chinese Wall device permitting Catholic Hospitals to sidestep full access to women's health care by shifting the burden to a third party.  But the rub is that the insurance company is now the Catholic Church.

 

At the heart of the dispute is the definition of a religious employer.  Here it is:

Group health plans sponsored by certain religious employers, and group health insurance coverage in connection with such plans, are exempt from the requirement to cover contraceptive service.  A religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033 (a)(1) and section 6033 (a)(3)(A)(i) or (iii).  45 C.F.R. §147.130(a)(1)(iv)(B).  See the Federal Register Notice:  Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventative Services Under the Patient Protection and Affordable Care Act  (http://www.healthcare.gov/law/resources/regulations/prevention/regs.html).  The Bishops want a broader definition.

The dilemma with the Bishops' gambit is that push eventually leads to shove.  Ultimately the Courts are going to paint a bright line that says when the Church acts as a Church it has full First Amendment protection.  When the Church acts transitionally as a business those protections begin to abate.  As the Church fully engages in traditionally non-religious commercial activity, the protections of the First Amendment, as to religious liberty, do not attach.

The Bishops are overreaching.