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Still No Room for Religious Freedom

 

Still No Room for Religious Freedom under Obama’s New HHS Mandate “Accommodation” 

I. Introduction

On February 1, 2013, the Obama Administration issued the long-awaited Notice of Proposed Rulemaking (NPRM) for the HHS Mandate.  The proposed rule affirms the HHS Mandate’s policy of coercing conscientiously objecting employers to cover abortion-inducing drugs, sterilization, and contraception.  Its “accommodation” does not relieve these employers from their obligation to pay for such coverage in violation of their deeply held beliefs and right to religious freedom.

So far, 47 lawsuits have been filed across the nation challenging the constitutionality of the HHS Patient Protection and Affordable Care Act’s (PPACA, or Obamacare) HHS Mandate for violating the First Amendment and Religious Freedom Restoration Act (RFRA).  Since employers will still be coerced to cover abortion drugs, sterilization, and contraceptives under the new proposed rule, HHS lawsuits remain relevant and will continue to make their way through the courts.  

II. The “Religious Employer” Exception

Under the PPACA’s HHS Mandate, employers are required to provide health insurance coverage for “preventative health services” to women, defined by the Obama Administration to include the abortion-inducing drug Ella, sterilization, and contraceptives, in violation of millions of American employers’ religious or moral beliefs.  

A narrow exception to this requirement was issued in August 2011 for certain kinds of “religious employers” that were able to meet 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 non-profit organization.

Catholic and other non-profit charities, social services (e.g., homeless shelters, adoption agencies, relief services, etc.), hospitals and health-care institutions, schools, universities, dioceses, radio and TV stations, and other faith-based institutions did not fall within the HHS Mandate’s narrow definition of “religious employer” because their primary purpose is to educate, serve, or help persons of all faiths, not just their own.  For-profit businesses (e.g., Hobby Lobby) and companies that conscientiously object to the HHS mandate did not qualify either.  It appears that only physical church buildings and houses of worship qualified for the exception.  (See CLF’s legal brief on the HHS Mandate [1].)

Despite Obama’s reassurances over the last year to find an acceptable solution to these violations of religious freedom, his administration has only reaffirmed its stance against religious freedom with the recent proposed rule.  

III. Unpacking the NPRM and Its “Accommodation”

(A) Non-Profits

The new proposed rule drops the first three criteria for the “religious employer,” leaving only the requirement that the institutions be non-profits.  This is a positive step in the right direction.  Unfortunately, the new proposed rule’s “accommodation” for non-profits still ultimately requires them to pay for abortion pill, contraceptive, and sterilization coverage.

The new proposed rule offers a faux “accommodation” for non-profit employers.  Non-profits, charities, and religious ministries are offered an “accommodation” in which they do not have to provide the objectionable coverage, but their employees will automatically be enrolled in a separate “rider” plan that will be provided by the insurance company itself.  The abortion-inducing drug, Ella, sterilization, and contraceptives are covered under this rider.  There is no opt-out from this rider, for either the employer or employee.  

This supposedly shifts the burden from the employer to the insurance company.  However, this does not solve the issue.  Insurance companies will not provide this rider for free.  Premiums will increase, and those premiums will be paid for by the employer.  Ultimately, employers are still forced by the government to pay for abortion drugs, sterilization, and contraceptives against their deeply held religious beliefs.  As described in the Wall Street Journal [2] religious institutions “will still pay for birth control, even if it is nominally carried by a third-party corporation.”

(B) For-Profits

The new proposed rule solidifies the “non-profit” requirement for the religious employer exception.  For-profit organizations, such as Hobby Lobby, that seek to operate in conformity with their faith are unequivocally denied their right to religious freedom under the new proposed rule.

(C) Second- and Third-Class Status for Those “Unworthy” of Religious Liberty

The Obama Administration has effectively created three classes of religious employers: (1) those worthy of the First Amendment right to religious freedom; (2) those worthy of being offered a false “accommodation”; and (3) those which are unworthy and outright denied First Amendment protection, without even the appearance of an “accommodation.”  Physical church buildings and houses of worship fall within the first class.  Non-profits, charities, universities, and hospitals fall into the second.  For-profit businesses fall into the third.  This line-drawing and discrimination between who is entitled to the right to religious freedom and who is not is absolutely unconstitutional.

IIII. Legal Implications of the NPRM 

Since the NPRM’s word game has left many things unchanged under the HHS Mandate, the causes of action for the plaintiffs in the HHS Mandate cases remain intact.  Litigation against Obamacare’s HHS Mandate for violating the First Amendment and Religious Freedom Restoration Act will continue to proceed through the courts, and new lawsuits may continue to be brought.

Courts have been dismissing lawsuits brought by non-profits on procedural grounds because the HHS Mandate has not been enforced against them, and they have not (yet) suffered any injury.  Such court decisions have no bearing on the merits of their claims.

Most lawsuits brought by for-profit businesses have been victorious on the merits.  However, legal scholars have suggested that the division among the courts in these cases indicates that the matter may eventually have to be decided by the U.S. Supreme Court.

IV. Other Matters Still Unresolved 

The NPRM leaves other important concerns unresolved.  First, the mis-categorization of the abortion pill, Ella, as a contraceptive has not been corrected.  If Ella were to be properly categorized by the FDA as an abortion pill, then it would not be covered under the HHS Mandate.  Or, the government could specifically exclude it from the mandated coverage.  This would substantially alleviate the consciences of many employers and would partially resolve this whole crisis.

In addition, the entire HHS Mandate is based on the false premise that pregnancy is a disease, and that abortion, sterilization, and contraception are “preventative health services” to prevent this “disease.”  Although pregnancy can exacerbate a pre-existing illness in rare cases, these rare cases are exceptions, not the norm, and should not define the rule.  Preventing pregnancy is not a “health benefit.”  

VI. Conclusion  

Nothing is stopping the Obama Administration from expanding the “religious employer” exception to include religiously-affiliated charities, ministries, and institutions, and for-profit businesses that wish to operate without being forced by the government to violate their beliefs.  The First Amendment and RFRA demand that these institutions be afforded the fundamental right to religious freedom.  Although the new proposed rule offers a nominal compromise and is a small step in the right direction, its “accommodation” merely solidifies the previous violations against religious freedom, allowing HHS Mandate lawsuits to proceed and possibly make their way to the Supreme Court.  Champions for religious freedom must continue in their efforts to challenge the unconstitutionality of Obamacare’s HHS Mandate.

 
Life
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Obama’s New HHS Mandate “Accommodation”
By Margaret Datiles Watts, Associate Fellow in Law

I. Introduction

On February 1, 2013, the Obama Administration issued the long-awaited Notice of Proposed Rulemaking (NPRM) for the HHS Mandate. The proposed rule affirms the HHS Mandate’s policy of coercing conscientiously objecting employers to cover abortion-inducing drugs, sterilization, and contraception. Its “accommodation” does not relieve these employers from their obligation to pay for such coverage in violation of their deeply held beliefs and right to religious freedom.

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