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UMobile President's Comments to U.S. Dept. of Health & Human Services on 'Accommodation' Language

May 30, 2012

Comment Submission
Proposed Rule: Certain Preventive Services under Affordable Care Act
(Document ID CMS-2012-0031-0001)


The scope of the definition of “religious employers” exempted from the mandate is inappropriately
narrow and fails to accommodate forms of religious expression directed in the biblical record and
historically exercised by multitudes of church-related organizations and independent citizens of faith.
Thus, the definition, stated below, effectively gives preference to one form of religious expression to
the exclusion of all others. In so doing, it violates a fundamental principle of the establishment clause:
that the government not pick and choose between different religious groups.

“The regulations define a “religious employer” as an organization that meets all of the following criteria:
(1) The inculcation of religious values is the purpose of the organization;
(2) The organization primarily employs persons who share the religious tenets of the organization;
(3) The organization serves primarily persons who share the religious tenets of the organization; and
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.”

This definition above creates two classes of religious groups: those organizations that meet the
arbitrary criteria established above and organizations that do not. Traditional organizational churches,
considered sufficiently focused inwardly to merit an exemption, receive full protection from the
mandate. Faith-based service organizations, outwardly oriented, are given a lesser degree of
protection. This two-class system has been embedded in federal law via the 02/15/12, publication of
the final rules providing exemption from the mandate for a narrowly defined set of “religious
employers” and the related administration publications and statements about a different
“accommodation” for non-exempt religious organizations. Yet both worship-oriented and serviceoriented
religious organizations are authentically and equally religious organizations. I reject the idea
that it is within the jurisdiction of the federal government to define, in place of religious communities,
what constitutes true religion and authentic ministry.

This effort to define religious groups by arbitrary criteria and to limit religious practice, belief, and
conviction to only that which happens within the walls of a church between fellow believers, is in direct
opposition to the Christian faith which teaches believers to “feed the hungry,” to “care for the sick,” to
“visit those in prison,” and to “go and make disciples of all nations.”

In the case of faith-based colleges and universities like the University of Mobile, it is directly contrary
to the biblical mandate and institutional mission directing that faith can and should be integrated into
all things and whose goal is to teach its students to expand their faith into all aspects of life.


1) The Advanced Notice of Proposed Rulemaking (ANPRM) asks whether the definition of the
accommodation should be based on another federal law such as section 414(e) of the tax
Code and section 3(33) of ERISA that set forth definitions for the purposes of “church plans.” A
definition based on these provisions is likely to limit its protections to organizations that are
controlled by, or associated with a church, convention, or association of churches. While such
a limitation would include the University of Mobile, it would prevent many other Protestant
organizations from being included within the scope of the accommodation. I strongly urge that
this must not be one of the requirements. Faith based colleges and universities and other
para-church organizations, though not directly connected to a particular church or
denomination, are nonetheless in themselves religious and should be treated as such by the
health insurance regulations.

2) The ANPRM asks whether only groups that oppose all of the mandated services should be
exempt. I believe such an approach would be in error. It would leave unprotected most faithbased
colleges and universities and other Protestant institutions who primarily oppose Plan B
(morning after pill) and ella (month after pill), but do not object to traditional forms of birth
control. Conscience protections should not be guided by arbitrary groupings of services
created by government agencies. Conscience should be defined by sincerity alone and all
sincerely held beliefs should be protected.

3) I oppose the artificial limit on conscience created by the “safe harbor” deadline. The
“temporary enforcement safe harbor” for institutions and student health plans only extends to
those organizations that, as of Feb. 10, 2012, had health plans that excluded, for reasons of
conscience, contraceptive services. Organizations that did not realize on that date that their
insurance covered morally objectionable services, or that had not yet managed to get those
services excluded, are treated as if they have no right now to object. It is possible that the
accommodation will be similarly designed. Prior history should not disqualify any organization
from having its current conscience concerns accommodated.

Mark Foley, Ph.D.
University of Mobile
Mobile, AL
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