New Jersey Catholic Conference

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William F. Bolan, Jr., J.D.

Executive Director

April 1, 2003

EXEMPLAR LETTER SENT TO ALL NEW JERSEY SENATORS

The Honorable _____________

__________________________

__________________________

RE: S185 (A1693)

Dear Senator ______________:

The New Jersey Catholic Conference urges you to support the conscience clause which is contained in S185 in its introductory form. This clause provides that a religious employer (a church or any group or entity that is operated, supervised or controlled by or in connection with a church and that also qualifies as a tax-exempt organization) may request, and a health insurer shall grant, an exclusion under the contract or policy for the coverage of the purchase of prescription female contraceptives if the required coverage conflicts with the religious employer’s bona fide religious beliefs and practices. The exclusion is not allowed for prescription drugs that are prescribed for reasons other than contraceptive purposes or for prescription contraceptive drugs that are necessary to preserve the life or health of a covered woman.

There are indications that an amendment may be offered in committee although specific language has not been brought to my attention. An attempt to narrow the conscience clause in A1693 (the Assembly counterpart) was defeated by every member of the Assembly Health and Human Services Committee on May 9, 2002. There the attempt consisted of narrowing the conscience clause by limiting the definition of religious employer to an entity which primarily employs and serves persons who share the same religious beliefs and practices. On June 20, 2002, A1693, containing the same conscience clause as S185, passed the Assembly with 72 votes in the affirmative.

We urge you to oppose any attempt to narrow the conscience clause because the aforementioned limited definition would exclude Catholic hospitals, Catholic Charities and Catholic schools from the benefit of the conscience clause unless those entities employed primarily Catholic employees to serve primarily Catholic people in hospitals, charities agencies and schools. Is not such an amendment absurd? Who can imagine these three institutions, which have done so much good, limiting their service to the Catholic poor, Catholic sick and Catholic children? Think of the effect that this would have on students in Catholic schools particularly in our cities, most of whom are not Catholic. In this time of tight fiscal constraints, these institutions are more important than ever in serving all people, not just Catholics.

It is not acceptable to say that Catholic Charities and Catholic hospitals, for example, can avoid the mandate by stopping prescription drug coverage for their employees. How would this serve public health to pull such coverage from these persons? How unfair to punish these Catholic institutions for not providing prescription contraceptives when some employers in New Jersey provide no health insurance coverage at all.

Having described briefly the devastating effects such an amendment would have on these institutions, we explain in the following position paper the harmful impact in greater detail and the constitutional principles of freedom of religion which do not permit government to impose its view over a church’s own in violation of the church’s religious freedom to operate in accord with the provisions of its religious faith.

POSITION PAPER ON S185

At the Assembly Health and Human Services Committee hearing held on May 9, 2002, an amendment was offered to A1693 which would limit the definition of religious employer as follows. “Religious employer” means an entity that: 1) has as its purpose the inculcation of religious values; and 2) primarily employs and serves persons who share the religious beliefs and practices of the entity. (This language is drawn from a California statute which is now being challenged by Catholic Charities of California in the California Supreme Court.) On May 9, 2002 the amendment was defeated by every member of the Assembly Health and Human Services Committee.

The New Jersey Catholic Conference opposed the above amendment because it would be an unprecedented assault upon the religious freedom rights of churches in general and the Catholic Church in particular. This amendment would impose a mandate upon targeted Catholic religious institutions to provide contraceptive insurance coverage, coercing the Catholic Church under the color of law to act contrary to its most profound religious teachings on matters of morality and social justice. If this amendment had been adopted, it is difficult to imagine any limit upon the state’s ability to require religious institutions to violate the principal tenets of their religious beliefs. This amendment deliberately fashioned a limited exemption to cover as few Catholic religious institutions as possible, meticulously insuring that all Catholic health care, social service and higher educational ministries (if not parochial elementary and secondary schools) would be excluded from the conscience clause.

This provision had been deliberately designed to deny exemption to most Catholic Church institutions by insuring that they do not qualify as “religious employers.” A civil mandate that in its own workplace a church pay for what the church preaches against is one of the most serious invasions of church autonomy imaginable. Such a mandate forces a church to act in a manner directly contrary to the message it preaches, effectively destroying its ability to organize and govern itself and its agencies. If a church can be required in its own house to provide or pay for particular programs or services, even if repugnant to its deeply held religious convictions, it would seem that no church or church body is safe from the ad hoc nullification of its practices and teaching at the hands of the state. Indeed, even the late Mother Teresa’s Missionaries of Charity, whose work with the poor and destitute is internationally known and still carried on in New Jersey in Newark and Plainfield, could be forced out of existence as presently constituted by requiring the Missionaries, under the force of law, to pay for contraceptives.

It is no answer to say that Catholic Charities and Catholic hospitals can, for example, simply avoid the mandate by declining to provide its employees with prescription drug coverage. As a matter of justice, these institutions consider it a religious duty to provide such coverage. As a matter of the common good, how is the health and welfare of employees better off if there is no prescription drug coverage? Given the large numbers of persons without any kind of

prescription drug coverage, or who are wholly uninsured, one can fairly question whether the creation of such reverse incentives truly advances public health. It is especially hard to defend the claim that the public welfare is served by penalizing Catholic Charities and Catholic hospitals for not paying for prescription contraceptives when other employers pay for no prescription drugs or services whatsoever.

Equally troubling is the implicit attempt, in crafting a limited exception for a narrow range of religious organizations, to decide what is religious and what is not religious. Here the state has decided that the organizations are “truly” religious if they serve and employ only their co-religionists. This is blatantly unconstitutional. If the Religion Clauses of the U.S. Constitution mean anything, they mean that the government is prevented from deciding which church organizations are “religious enough” to qualify for an exemption.

Church agencies with the temerity, in the view of the proponents of the limited conscience clause, to hire and serve persons other than their own members are penalized by this amendment or alternatively forced to withdraw from public service. To suggest that Catholic schools and organizations are not Catholic if they serve non-Catholics betrays a total ignorance of Catholic social teaching, which requires service to those who are poor, not just Catholics who are poor. Such a state-imposed choice is offensive, discriminatory and unconstitutional under the Religion Clauses.

What has made the Catholic Church a target of this legislation? For the last decade passing state contraceptive coverage mandates has been a national Planned Parenthood priority. The proposed amendment is drawn from a California statute which has been challenged by Catholic Charities of Sacramento, California, Inc. That litigation is now before the California Supreme Court.

The Catholic Church views itself as the hands and feet of Jesus Christ in the world, and as such, has created affiliated institutions such as Catholic Charities, Catholic hospitals and Catholic schools in order to fulfill that mission. Catholics believe that their work for charity

and justice is not something separate, but integral to worship. Indeed, such works are the means by which Catholics may experience grace and come to a better understanding of their faith.

The religious conscience clause which is in S185 and the Assembly Committee Substitute of A1693 is substantially similar to a religious conscience clause which was passed by wide margins in both houses of the Legislature in the past.

In conclusion, it would be a grave mistake for the Legislature to extinguish the freedom of church agencies to organize and operate internally in a manner consistent with their religious convictions. Deference to laws of general applicability should not, and does not, override the freedom of churches and their agencies to be distinctively different from their secular counterparts. That would be to enforce the state’s uniform views over the church’s own in contravention of that church’s freedom to govern and organize itself in accord with its religious

faith. Such intolerance on the part of the state is inconsistent with the First Amendment’s commands. Accordingly, we urge you to vote for the conscience clause which is set forth in S185 in its introductory form.

Very cordially yours,

William F. Bolan, Jr.

Executive Director

WFB:pr

Cc: Catholic Bishops of New Jersey

Catholic Health Care Facilities Chief Executive Officers

Directors of Diocesan Catholic Charities Agencies

Diocesan Superintendents of Catholic Schools

Diocesan Respect Life Directors

View the Action Alert HERE