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Repeal Bill Doesn't Repeal Statutory Basis of Abortifacient Mandate

The opinions expressed by columnists are their own and do not necessarily represent the views of

The Obamacare repeal bill the Republican-controlled House passed last week -- the American Health Care Act -- does not repeal the section in the Obamacare law that created the statutory authority for the Executive Branch to issue a regulation requiring most health insurance plans to cover contraceptives, sterilizations and abortion-inducing drugs and devices.

Even if the Republicans enact their "repeal," the most outrageous part of the Obamacare law will stand.

That part of President Barack Obama's Patient Protection and Affordable Care Act is a classic example of covert legislation.

It is discretely titled: "Coverage of preventive health services." It never uses the words "contraceptive" or "sterilization" or "abortifacient."

What it does say is: "A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for ... with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph."

How many Americans have ever heard of the Health Resources and Services Administration?

Yet, empowered by one passage in the Obamacare law, this federal agency issued a regulatory mandate that became the greatest attack on freedom of conscience in the history of the United States.

It said most health insurance plans must cover: "All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women of reproductive capacity."

All FDA approved "contraceptive methods" included abortion-inducing drugs and IUDs. Contraceptive "education and counselling" included government-compelled morally objectionable speech.

In a 2011 letter to the Department of Health and Human Services, the U.S. Conference of Catholic Bishops argued that this regulation not only violated the freedom of conscience of religious organizations but also of individuals and insurance providers.

"Individuals with a moral or religious objection to these items and procedures will now be affirmatively barred by the HHS mandate from purchasing a plan that excludes those items," said the Catholic bishops.

"Religiously-affiliated insurers with a moral or religious objection likewise will be affirmatively barred from offering a plan that excludes them to the public, even to members of their own religion," the bishops said.

In defense of its contraception-sterilization-abortifacient regulation, the Obama administration took the Little Sisters of the Poor all the way to the Supreme Court. It sought to force an order of nuns -- whose mission is to care for the elderly poor -- to be complicit in the taking of innocent life through the distribution of abortifacients.

There is one word for this: Evil.

Last week, President Donald Trump had members of the Little Sisters of the Poor with him when he signed an executive order "promoting free speech and religious liberty."

"With this executive order, we are ending the attacks on your religious liberty, and we are proudly reaffirming America's leadership role as a nation that protects religious freedom for everyone," Trump told the Little Sisters.

But Trump's order itself did not nullify -- or unambiguously call for the complete nullification -- of the Obamacare contraception-sterilization-abortifacient regulation.

"The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services," said the relevant part, "shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code."

The section of the U.S. Code referenced here is precisely the section of the Obamacare law that authorized the contraception-sterilization-abortifacient regulation in the first place.

And Trump's executive order did not tell the secretaries of Treasury, Labor and HHS to terminate the regulation the Obama administration based on this section of the law, it merely told them "to consider issuing amended regulations."

HHS Secretary Tom Price issued a statement about Trump's order that said the department would be taking action to protect the conscience rights of employers who buy insurance for their workers. But he did not mention individual Americans who, under the existing regulation, are forced to buy insurance in the individual market that covers contraceptives, sterilizations and abortifacients.

"We will be taking action in short order to follow the president's instruction to safeguard the deeply held religious beliefs of Americans who provide health insurance to their employees," said Price.

The Kaiser Family Foundation has published a comparison of the Obamacare law and the AHCA the Republican House passed to repeal it. This comparison notes that the requirement "for individual and group plans to cover preventive benefits, such as contraception ... with no cost sharing is not changed." A Republican congressional aide familiar with the legislation confirmed that this is the case.

That is not good enough. Even if the Trump administration issues "amended regulations" that completely protect the freedom of conscience of every American from the Obama-era contraception-sterilization-abortifacient mandate, those amended regulations could be reversed by the next Democratic administration -- so long as the underlying law is not repealed.

The Republican leaders of this Congress promised America they would repeal Obamacare. As of now, they are not planning to repeal even the most outrageous part of it.

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