HHS’s abortifacient/sterilization mandate violates religious freedom

Matt Bowman
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Posted: Sep 29, 2011 1:53 PM

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:

(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”

(4) The organization is a church, an integrated auxiliary of a church, a convention or association of churches, or is an exclusively religious activity of a religious order, under Internal Revenue Code 6033(a)(1) and (a)(3)(A).

This narrow exemption might not cover some or many Christian education institutions for various reasons, including: if they are not an “auxiliary of a church” or “an exclusively religious activity of a religious order,” if they do not “primarily” employ or “serve” persons sharing their religious tenets, or if they have another purpose besides “the inculcation of religious values.”

Moreover, even an entity that does clearly meet all these characteristics might not get the exemption. HHS’s “interim final rule” merely declares that it “may” exempt such entities; it need not do so. HHS’s willingness to grant exemptions might be even narrower than its already-constricted text indicates. HHS specifies in its rule that its goal in this “exemption” is merely to respect “the unique relationship between a house of worship and its employees in ministerial positions.” Consequently, even a church that meets all these characteristics might not be permitted to refrain from providing the mandated coverage to its employees who are not religious “ministers,” such as clergy.

Also worth noting is that, because the exemption covers only a “religious employer organization,” it does not cover that same entity’s provision of insurance to non-employees, such as to students. This may exacerbate conscience violations, for example in states that require health insurance for full-time college students to the extent that any plan compliant with the state coverage mandate is itself subject to the HHS abortifacient mandate. The mandate is a particular threat to religious colleges because HHS emphasizes that it is imposing this rule with college women particularly in mind, because it believes women in college must be provided these mandated items for free as soon as possible.

Moreover, the HHS exemption in no way covers individuals who object to participating in a health insurance plan containing coverage of the mandated items (but who will have no other choice after this mandate is imposed on all health plans). It also does not exempt insurance companies that wish to offer a plan on the open market without the mandated items.

HHS’s abortifacient/sterilization/contraception mandate violates the religious freedom of Christian and pro-life institutions in many ways. Institutions that have firm beliefs against usage of and coverage of all or some of the items included in the mandate will be forced to cooperate in their provision within the insurance plans that they offer. Organizations that teach the immorality of these items will, ironically, be required to pay for coverage of counseling and education in favor of the same items.

Public officials and even some religious advocates responsible for passing PPACA assured the public that its implementation would respect religious freedom. This mandate not only breaks those promises and runs contrary to the history of conscience-protecting federal laws, it directly violates the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq., which prohibits the federal government from substantially burdening any person’s exercise of religion unless it passes the strictest legal scrutiny by demonstrating that its rule is the least restrictive means to further a compelling government interest. It is readily apparent that the federal government could, if the political will existed, deliver the items in this mandate to women directly, without forcing private religiously-objecting entities to cooperate in coverage of such items. But 21 bills have been introduced in Congress to impose this mandate legislatively, and none of them have even gotten out of committee.

Christian and pro-life institutions should consult with an attorney to determine whether they will have their beliefs violated by this mandate. The Alliance Defense Fund with its network of attorneys around the country is available to discuss this matter and take legal action if appropriate. Contact 1-800-TELL-ADF to inquire.

Also notably, there is pending legislation in the United States Congress that could protect people’s rights not to be subject to this mandate. Rep. Jeff Fortenberry has authored the “Respect for Rights of Conscience Act of 2011,” numbered H.R. 1179 in the U.S. House. The companion bill in the U.S. Senate, sponsored by Senator Roy Blunt, is numbered S.1467.