A survey of headlines this week show an ongoing controversy regarding proposed conscience provisions at the Department of Health and Human Services and that HHS’s Office of Refugee Resettlement is not renewing a grant to the USCCB’s Migration and Refugee Services coordinating programs for victims of human trafficking.
That the Department of Health and Human Services has an ongoing battle with the USCCB on matters of conscience is nothing new. Over the past year, the USCCB and other Catholic organizations have been in a constant struggle with HHS over the definitions of religious freedom and conscience clause exceptions to health regulations. Most specifically, the central issue appears to be whether or not Catholic organizations will be legally required to provide insurance coverage for contraception, emergency contraception and abortion services. In August, the USCCB argued that the contraception mandate included a definition of religious freedom that is ‘inexplicably narrow.’ This week, the USCCB in a joint statement with heads of Catholic Universities released a statement on this issue.
So what is it in the HHS regulations to which the Bishops and Catholic leaders, including Sr. Carol Keehan at the Catholic Health Association and Fr. Larry Snyder at Catholic Charities USA object?
In describing as “narrow” a religious exception from the proposed mandate, Catholic Charities USA president Father Larry Snyder, in a 13-page Sept. 28 memo to an HHS administrator, said the mandate will “force organizations that oppose contraception for religious reasons to choose between (1) offering these services in violation of their religious beliefs, and (2) facing the prospect of substantial fees if they choose not to offer health insurance coverage. This lose-lose choice would impose a ‘substantial burden’ on these organizations’ exercise of religion.”
Under the HHS proposal, to qualify for a religious exemption, an organization would have to meet four criteria: “(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 nonprofit organization” under specific sections of the Internal Revenue Code.
Concerns over how these regulations will affect Catholic healthcare organizations and Catholic organizations as employers have been widely covered in the press and blogosphere. None of these debates are new; however, recent decisions at HHS this week seem to reveal a new area of conflict: funding for victims of human trafficking.
Human trafficking is a widespread and insidious global problem demanding action, as I argued in an earlier post “Victims of Slavery or Prostitutes: Paying attention to human trafficking.” Since 2000, the United States government has begun dedicating targeted resources for victims of human trafficking (Trafficking Victims Protection Act) which has been reauthorized by Congress in 2003, 2005, 2008 and now in 2011. As part of this law, the US government awards grants to non-governmental networks and agencies targeted programs for victims of human trafficking. Over the last ten years, the money awarded has grown and grants awarded through “Per Capita Victim Services Contracts.” Since 2006, one of these partnerships has been between HHS/Office of Refugee Resettlement and the USCCB’s Migration Refugee Service (MRS).
Marking the tenth anniversary of TVPA, the USCCB issued a set of reflections and recommendations for “HHS Service Mechanism for Foreign National Survivors of Human Trafficking”
Since 2002, USCCB has provided services to and advocacy on behalf of foreign national adult and child survivors of trafficking, serving more than 2,632 victims of trafficking and their eligible family members. It also founded the Coalition of Catholic Organizations Against Human Trafficking in 2002 to work on advocacy and education. Members of the Coalition were instrumental in providing input on provisions of the TVPA and its subsequent reauthorizations.
USCCB’s Migration and Refugee Services began advocating for refugees after World War I and entered into partnership with Lutheran Immigration and Refugee Services in 1979 developing programs for unaccompanied minor refugees. At this point, MRS is considered the largest voluntary refugee resettlement agency in the world (see the Reflections document for further details). With such a large and developed national network of partnerships, it is not surprising that MRS would be a logical choice for partnership with HHS/ORR in addressing victims of human trafficking.
From April 2006-September 2010, USCCB’s subcontractors served 1,833 survivors of trafficking, including 51 child victims of trafficking, and 420 of their family members with derivative status through the HHS/ORR–USCCB Per Capita Victim Services Contract.
This partnership, however, is coming to an end. In an unexpected and controversial move this week, HHS sent a letter to inform the USCCB they would not be renewing grant funding to the USCCB/MRS program, as reported on the USCCB Media Blog. What is going on here? According to Sr. Mary Walsh, spokesperson for the Bishops:
The program worked well on the ground. but not so well for distant administrators promoting the abortion and contraceptive agenda, who bristle at the fact that in accord with church teaching, USCCB won’t facilitate taking innocent life, sterilization and artificial contraception. MRS anti-trafficking programs ran successfully for six years in harmony with these moral convictions until the American Civil Liberties Union brought suit against the government for not forcing the USCCB program to provide these services as a part of the program. The suit’s outcome is pending, but ORR apparently has made its own decision apart from any judgment of the court. So much for the Administration’s guarantee of conscience protection.
…
Trafficking of human beings is one of the great modern-day scandals, but at least until now, the U.S. government sought to sincerely address the issue. It asked USCCB for help when regional programs weren’t reaching victims outside the usual hotspots for trafficking. USCCB created an extraordinary program in conjunction with several partners, Christian and secular, including Lutheran Family Services, Jewish Family Services, Salvation Army, YMCA affiliates, domestic violence shelters, World Relief and others. Only one-third of its subcontractors were Catholic-affiliated, but with the USCCB infrastructure they reached virtually everywhere in the USA.
Now ORR seems to have yielded to abortion politics. It has undercut a worthy program, limiting the numbers served, while increasing the time and money it will take to serve them.
What is going on here? Are the Dept of Health and Human Services really playing politics with victims of human trafficking? Is Sr. Walsh over reacting?
From discussions with staff at USCCB, this change at HHS came as a shock. As they continue to examine what happened and why, it is understandable to see why the USCCB is viewing all of their “battles” with HHS as connected. On face value, it is eerie the extent to which it does appear to be about abortion politics. However, as I survey the various battles over conscience going on right now, I cannot help but ask –
Does HHS actually understand the nature of Catholic social services?
The narrow language of the conscience provision seems to miss the very point of Catholic social services. Fr. Snyder explains,
Catholic Charities has been the principal social services agency of the U.S. church for more than a century. “Throughout our history, we have always been able to serve those in need while maintaining our religious identity,” Father Snyder said. “These federal regulations, if implemented, would compromise in unprecedented ways the ability of our agencies in local communities across America to provide these services.”
The mandate and mission of all Catholic social services, whether it is Catholic Charities, Catholic hospitals, or programs for victims of human trafficking is about the gospel mandate to serve the poor and vulnerable. Catholic social services maintain the principles and values of the Catholic commitment to human dignity and the sanctity of human life. The fundamental commitment to life and dignity of all human persons, with particular focus on the poor, vulnerable and marginalized is the basis for Catholic coalitions with other social service providers, community organizing groups, etc. In the case of the Human Trafficking programs, only 1/3 of the programs funded through the MRS programs are Catholic groups. If these programs limited their scope to only employing/working with Catholics and only serving Catholics in need it would be a gross violation of their mission. If they were to limit their advocacy to mainly poor Catholics or Catholic victims of human trafficking it would be a gross violation of their Catholic identity.
A few weeks ago, we engaged in a theological roundtable on prudential judgment, in which I focused on the role of conscience in Catholic moral theology. The question of conscience is primary for Catholic moral theology and participation in social services. The question of identity is one of fidelity to the Gospel. Simultaneously, this requires Catholics to be engaged in ministering to the poor and vulnerable and in doing so to uphold their conscience. Catholic Charities cannot but maintain its position on sanctity for life and offer assistance to all in need regardless of creed. It is this same commitment that leads Cardinal Mahoney and others to oppose immigration laws which would attempt to restrict offering of social services to undocumented immigrants – including the threat to ignore provisions of such laws that violate human dignity and would violate the mandate of Catholic teaching to minister to those in need.
Back to the issue of human trafficking – I cannot say for sure what motivated HHS to cancel the USCCB/MRS grant. While the loss of funding will greatly impact the programs as they exist now, I have no doubt that the MRS will continue to advocate for and assist victims of human trafficking, as they did long before the US Government passed TVPA. But I am deeply concerned that those making these decisions at HHS do not understand the very purpose and nature of Catholic social services (something I find particularly disconcerting under HHS Secretary Sebelius). And, unless you understand that, I fear we are doomed to talk past each other concerning the role of conscience and religious liberty in all of these matters. And, as evidenced this week, it is not just about contraception and health insurance regulations but can impact all Catholic social services, including outreach to victims of human trafficking.
Meghan, thank you for this important post. I am going to guess with high probability that HHS is fairly clear about the mission and nature of the Church’s role with respect to outreach to poor and vulnerable people. I do not believe this is a matter of oversight or lack of understanding on the administration’s part. With regard to conscience protection, the narrow language on what constitutes a religious organization from the state’s perspective has its origin in California legislation that has been adopted in other states as well. The goal is to so narrowly define-by the government-what constitutes legitimate religiosity in order to restrict an organization’s practices or force it to perform actions, refer for services or other activities which the government knows a religious organization will not do. With such a narrow definition, we are no longer talking about religious freedom as protected by the Constitution, but right to worship. This is a well thought out and concerted effort that must be vigorously resisted by not only Catholics, but other people of religious conviction or those who value the freedom of religion.
Meghan, thank you for addressing these topics in tandem. Disturbing news about the end of the grant, unfortunately. I think you are certainly right about those in question in the government do not understand the nature and purpose of Catholic social services. I think however that talking past each other has been more indicative of the government rather than the USCCB. Even Notre Dame’s President Jenkins released a letter to Secretary Sebelius a few weeks ago calling the HHS to be consistent with President Obama’s speech at Notre Dame that promised “a sensible conscience clause” that would respect all citizens. I am surprised that the HHS mandate has passed under the radar of the blog until now, especially since it is an unprecedented claim made by the US government on religious citizens.
Another issue that we should be watching closely is the current Supreme Court case of Hossana Tabor v. EEOC, which has to do with the scope and limits of ‘ministerial exception’ claims made by churches and other religious groups. Here, too, the US government through the employment commission is representing what I consider to be an ominous pattern in the Obama administration. Now this particular case does have some problematic aspects regarding the way the Lutheran community in question handled the firing of the disabled employee. Still the legal arguments of the Solicitor General on the side of the employee represent a consistent trend, in my opinion, with the way the HHS mandate tries to enforce its own concept of individual rights and the public good by minimizing or going against the conscience and welfare of religious citizens, in this case Christian. With the new introduction to the USCCB’s Faithful Citizenship document, religious freedom may appear to be the unifying issue for Catholics not only abroad (as John Allen, Jr recently noted), but especially at home. What do you think?
Thanks Meghan for the excellent post – the responses already here indicate how crucial this issue is.
I want to pick up on one aspect of VAThomist’s comment which I found particularly interesting: the idea that “freedom of religion” is being narrowed to “right to worship.” Does this mean that as long as one is doing something that looks like a ritual or ceremony, you can do whatever you want (e.g. marrriage!), but as soon as you run a school, or employ people, or open a soup kitchen, or run a social services agency – now you are “not practicing your religion,” and you have to conform to the expectations of all other actors in the State?
This would be an extraordinary imposition of a particular definition of “religion” on all religions!
I agree with everyone above, Meghan… great post and thorough. Sadly, I worry that the issue with the trafficking contract might just be the tip of the iceberg.
David L, while you didn’t mention this directly in your article (Allen might have in his), for those who are not aware the USCCB has recently established an ad hoc committee for religious liberty that will be tasked with the types of concerns that you raise: http://www.usccb.org/news/2011/11-184.cfm
David C, I think that the point you raise really highlights the ongoing tendency in modern life to view religion as a private phenomenon. Religious worship is an act played out in a community of believers… it is private, and thus protected, but activity in the public square, not so much. Richard Neuhaus might have been right after all!
The HHS religious exemption language is verbatim from that adopted in some states. This language originates in California. It states:
“religious employer” is an employer:
(a) Whose purpose is the inculcation of religious values;
(b) That primarily employs persons who share the religious tenets of the employer;
(c) That primarily serves persons who share the religious tenets of the employer; and
(d) That is a nonprofit organization under section 6033(a)(2)(A)(i) or (iii) of the Internal Revenue Code.
Needless to say, this very sectarian definition of “religious employer” would prevent Catholic, as well as many other religiously oriented employers, from carrying out their mission and work in the broader community in a way that protects the authenticity of their religious tenets
Meghan, thanks for this very provocative piece. I concur with the comments above and add my view that the situation exposes a limit of current Catholic Social Teaching. The actions of HHS seem to conform to this principle: persons/communities have a right to practice their religion in a way that does not interfere with the rights of others. Depending on how one reads Dignitatis humanae, that isn’t too far from its principle that persons/communities have a right to exercise religious freedom “provided that public order be observed.” Unfortunately, CST hasn’t fleshed out the meaning of “public order.” But it has emphasized the protection of rights in its account of the responsibilities of the state. Thus the principles seem to share at least a family resemblance.
But what if rights conflict, as is the case in the controversy you discuss? Here, contemporary CST offers little more than the exhortation to sort out true rights from false rights using the winnowing fan of the natural law. That’s important and necessary, but more needs to be said about the moral challenges associated with living in pluralistic political societies where conflicts are more obstinate. What if, in addition to taking a stand on rights, the Church also spoke the language of political prudence or epikeia? Indeed, your presentation of the controversy, Meghan, suggests that this may be what the HHS most needs to hear. This is not to say that the Church ought not to take a stand on rights; rather, it’s simply to acknowledge that we have the capacity (and responsibility?) to broaden the public conversation by drawing upon additional insights from the tradition.
I want to thank everyone for the great comments/conversation. I think that the reduction of freedom of religion to freedom of worship is something we should all be concerned about. And I think Todd hits it on the head that this is the outcome of such a privatization of religion….and that model just does not accommodate what discipleship/living Catholicism is / requires.
I will have to think more about Catholic social teaching on this…I will have to go back to DH and look for resources in John Courtney Murray (that’s probably where it is fleshed out a bit).
Stanley Fish has an excellent treatment of the caser before the Supreme Court testing “ministerial exception,” and the contortions it is requiring for the Court to come to some kind of a decision.
http://opinionator.blogs.nytimes.com/2011/10/17/is-religion-above-the-law/?src=me&ref=general
Meghan-
You might want to check out Murray’s critical essay “Paul Blanshard and the New Nativism.” Even though the essay was written sixty years ago, the critique Murray launches against Blanshard’s presupposed theory of the Church-State relation seems much like that articulated by Father Jenkins and others in their criticisms of the theory of the Church-State relation implied in current policy decisions and proposals at HHS.
A sample from the essay:
Regarding the four main ideas of Blanshard’s implied theory of the Church-State, Murray writes:
“The first is the idea that the sole area of the Church’s competence is that of “devotional life.” The Church belongs in the sacristy, as classical Liberalism put it. The second and correlative idea is that of “the supreme power of the democratic social welfare state over all aspects of secular life.” And secular life for Mr. Blanshard includes the fields of politics, economics, law, medicine, science, social welfare, education, the media of communication, marriage, the family, relations between the sexes, community mores—in fact, the whole of organized human behaviour. In all these areas of life the power of the democratic community, expressed through its instrument, the State, is singly sovereign; no other authority stands outside it, beside it, much less above it.”
You can read the essay in its entirety at: http://woodstock.georgetown.edu/library/murray/1951a.htm