The critique by the Ethics & Religious Liberty Commission (ERLC) came in a comment submitted Monday (April 8) to the Department of Health and Human Services (HHS). The four-page letter from ERLC President Richard Land went to HHS on the final day of a comment period provided in response to the department's latest proposed rule change to address objections that the abortion/contraception mandate fails to protect religious freedom.
The mandate -- which is a part of HHS regulations implementing the 2010 health-care reform law -- requires employers to carry insurance plans that cover drugs defined by the Food and Drug Administration as contraceptives, even if they can cause chemical abortions.
The ERLC and many others submitted comments after HHS proposed Feb. 1 a change that religious liberty advocates acknowledge apparently protects churches and church ministries. They say, however, it will make other objecting employers -- including many religious organizations -- unwilling participants in underwriting both contraceptive and abortion-causing pills. Under the revision, dissenting employers would still have to be affiliated with an insurance plan connected to coverage of such pills and may end up absorbing increased costs for the drugs if the insurance companies pay for them and consequently increase rates.
The ERLC's Land told HHS it "makes no difference if the administration does not hold the same conviction" as those who oppose underwriting contraception for others.
"Through its mandate, HHS is abusing the authority of the federal government by forcing believers to choose between either offending their God and violating their consciences or facing crushing fines and possible imprisonment for adhering to their deeply held moral convictions," Land said. "This is, by definition, a form of religious persecution."
The proposed rule also fails to protect the consciences of pro-life Americans who do not object to non-abortifacient contraceptives, Land said.
The mandate "is the first time the government has forced pro-life citizens to fund, directly or indirectly, insurance coverage for abortion-causing activities," he told HHS. "This is an egregious abuse of federal power."
The mandate not only continues to violate the beliefs of Americans who oppose abortions and/or contraceptives, it also "represents a fundamental breach of the freedoms of conscience and religion for all Americans in principle," Land said.
"In its most basic essence, the mandate is the federal government abusing its authority by forcing Citizen A, against his or her convictions, to purchase a product for Citizen B. This should trouble every American," Land told HHS. "If the federal government can force morally opposed Catholics, for example, to purchase contraception for a third party and force pro-life Americans to purchase abortion-causing drugs for a third party, what prevents this or future administrations from forcing other Americans to betray their deeply held convictions?"
He urged HHS to bring the mandate in line with the free exercise of religion clause in the U.S. Constitution's First Amendment.
"Anything short of protecting the freedoms of conscience and religious expression for all Americans -- not merely houses of worship and their integrated auxiliaries -- is unacceptable," Land said. "This necessarily means exemptions for all individuals, small businesses, and corporations that wish to direct their economic activities according to the dictates of their consciences."
The latest proposal joins HHS' original August 2011 abortion/contraception mandate and the March 2012 proposed version in failing to address the religious liberty concerns of the ERLC, Land said. The Roman Catholic Church and many organizations espousing pro-life and religious liberty beliefs have expressed similar concerns to HHS.
The proposal fails to provide relief not only to many religious organizations but to objecting, for-profit businesses such as Tyndale House Publishers and retail chain Hobby Lobby, which is owned by pro-life Christians.
Opponents of the mandate have fared well in federal court so far. Of the lawsuits filed by for-profits, the businesses have won injunctions preventing enforcement in 17 of 23 rulings, according to the Becket Fund for Religious Liberty. No court has ruled so far on the merits of the 30 legal challenges from non-profits, the Becket Fund reported.
The ERLC has signed onto five briefs defending the religious freedom of entities challenging the mandate at the appeals court level.
Drugs considered contraceptives under the mandate include Plan B and other "morning-after" pills, which can prevent implantation of tiny embryos. Such a secondary, post-fertilization mechanism of the pill would cause an abortion. The mandate also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can even act after implantation to end the life of the child.
More than 147,000 individuals and organizations have commented on the abortion/contraception mandate since the rule was first proposed, the Sunlight Foundation reported March 22. Foes of the rule have submitted most of those comments. The number of comments for the regulatory proposal that is the runner-up government-wide is only 4,600, according to the foundation.
Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, associate editor of Baptist Press.
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