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Why the Affordable Care Act’s Religious Exemption Mandate by the Department of Health & Human Services Is of Concern

When the Department of Health & Human Services (HHS) announced a distinction January 12, 2012 in applying the religious exemption in the Affordable Care Act (ACA), the conversation morphed from contraception, sterilization, and abortifacients to defining of the word “religious” in religious institutions.

  1. Religious institutions that proselytize their religious beliefs, hire their own religious adherents to provide services, and serve only their religious adherents – such institutions would enjoy the religious exemption in the ACA.
  2. Religious institutions that do not proselytize religious beliefs when providing services, hire anyone of any religious/non-religious persuasion, and serve anyone of any religious/non-religious persuasion – such institutions would not enjoy the religious exemption in the ACA at trym ii .  
  3. The HHS distinction as to which religious institutions can be exempt means that religious institutions that remain internal to themselves would remain exempt; religious institutions that provide services outside themselves would now be defined as non-religious by a governmental agency.
  4. Herein lies the strangling distinction for thousands of religious institutions of the Catholic Church.  Religious institutions (Notre Dame University, Christ the King Prep, Catholic Relief Services, Catholic Charities, etc.) would fall into the category of a non-religious institution and thereby be subject to governmental definitions and regulations.
  5. The focus remains – in the pluralistic United States, who shapes the external identity and services of a religious institution: an agency of the government or the religious institution?
  6. The accommodation offered on February 10, 2012 by President Obama, i.e. shifting the cost of the mandate to insurers, did not resolve the very troubling distinction of who determines a religious institution’s external mission, ministry and services.  Secondly, since many religious institutions are self-insured, the accommodation did not shift the cost.

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