HHS has finalized its rules regarding the requirements for organization to participate in and provide health care insurance/coverage for its employees.  As noted in the news and from press releases by the US Catholic Conference of Bishops (USCCB), the Church has registered its strong objections to the mandate to provide elements of health care coverage that are against the moral teaching of the Church. The regulations require the church and church-affiliated organization to provide coverage in the area of artificial birth control and abortion services.

The rules are now in place and require the Church to comply. One might ask, “Surely there is a exemption clause provided in the regulation?”  And there is – any institution that does “religious work” is exempt.  The problem is the new regulations define what constitutes religious work. Under the regulations “religious work” is that done by a recognized religious organization by it members for the primary purpose of its members. The work of a Catholic hospital does not qualify for an exemption – nor would virtually any Catholic school, university, soup kitchen, local Catholic Charity service, or any other Catholic social service agency. There are serious questions whether the Diocese of St Petersburg qualifies for an exemption.

A disturbing aspect – among many – is that the regulation now reaches across the boundary of traditional understanding of the church-state “establishment clause” to begin to make determination of what is “religious work.”  By this regulation, a Catholic hospital is no longer a religious work because, in serving 1 out of every 6 people in the United States, it does not restrict it’s service to a primarily Catholic population. It would not matter that every employee in the hospital was Catholic.  Failure to comply with the regulation is punishable at a rate of $2,000 per employee per year. The regulation shows no regard for the religious conscience of the employees or of the sponsoring Church.

For a regulatory agency to believe it can define “religious work” reveals, what I believe to be, a flawed understanding. Sister Mary Ann Walsh of the USCCB succinctly outlines the intrinsic problem when the government begins to define “religious work.” She writes: “We Catholics serve people because we’re Catholic, not because those we serve are.”  “Religious work” has always been a mandate of Jesus: “I give you a new commandment:  love one another. As I have loved you, so you also should love one another” (John 13:34). We have been doing it for quite a long time.  Last  year the Catholic Church served over 10 million of the poor and suffering through its charitable outreach.  How many were Catholic? We have no idea – we never asked. Our faith compels us to serve, regardless of the faith of those we help.

This is what is at risk: a government enabled to reach into the body of the Church and mandate a practice that violates a tenet of our faith. In a dissenting opinion in “Religious Liberty v. Nyquist” Justice White warned: the courts, left with discretion by the broad words and ambiguous history of the Religion Clause, have used it to “carve out what they deemed to be the most desirable national policy governing various aspects of church-state relationships.”  (Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973)).  That is the court. One wonders what the administration is “carving out” with this new regulation – intended or no.

While my own sense is that this regulation and its religious exemption will not survive a court challenge, one has to pause and consider the consequences if it did survive such a challenge.  Has a precedent been established in the Executive Branch and the Court that allows an administration to selectively reach into the body of a Church and mandate other practices that are (or are not) a violation of a tenet of our faith? What could happen? That is always the problem of the unintended consequence. Such a future is not knowable.

What is knowable is that regardless of governmental mandates, we have the one sure eternal mandate: “I give you a new commandment:  love one another. As I have loved you, so you also should love one another” (John 13:34). If we fail in this mandate, the consequences are far graver.