Matthew Bowman

On Thursday September 29, 2011, the Alliance Defense Fund submitted a comment to the U.S. Department of Health and Human Services, pointing out the illegal character of HHS’s proposal to mandate that the vast majority of religious entities, individuals, and insurance plans must cover abortifacients, contraceptive and sterilizing drugs, devices and information. ADF submitted its comments on behalf of The Cardinal Newman Society’s Center for the Advancement Catholic Higher Education and multiple Catholic Colleges and Universities.

The memo complains that the federal government has issued a new and urgent threat against the rights of many Christian and pro-life institutions and individuals regarding their beliefs about the sanctity of human life and sexuality. On August 1, 2011 the U.S. Department of Health and Human Services issued an "interim final rule,” mandating that “all group health plans, and all health insurance issuers offering group or individual health insurance coverage,” fully cover without co-pay all “Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” The rule was issued in implementation of the Patient Protection and Affordable Care Act of 2010 (PPACA).

In the category of “FDA approved contraceptives” included in this mandate are several drugs or devices that cause the demise of an already conceived but not yet implanted human embryo, such as certain intrauterine devices (IUDs). Likewise in that category are many birth control methods that potentially prevent embryos from implantation, such as “the Pill” and “emergency contraception.” And recently the FDA approved in this category a drug called “Ella,” which studies show can function to kill embryos even after they have implanted in the uterus, by a mechanism similar to the abortion drug RU-486 (although RU-486 itself is not presently covered under this mandate).

The mandate makes little or no allowance for the religious freedom of entities and individuals, including Christian educational institutions, who object to paying for or providing insurance coverage for such items. An entity cannot freely avoid the mandate by simply refusing to provide health insurance to its employees, because PPACA imposes monetary penalties on entities that would so refuse (and many entities believe that providing health insurance to their employees is itself a religious duty).

HHS offers a thin veneer of “conscience protection” to certain entities, but only if they meet all of the following characteristics:

Matthew Bowman

Matt Bowman is senior legal counsel with Alliance Defending Freedom, an alliance-building legal organization that advocates for the right of people to freely live out their faith.