HHS broadens mandate 'safe harbor' guidelines

Baptist Press
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Posted: Aug 28, 2012 4:52 PM
HHS broadens mandate 'safe harbor' guidelines
WASHINGTON (BP) -- In a move that gives religious organizations some wiggle room but doesn't solve the larger issue, the Obama administration has broadened its health care law guidelines so that all nonprofit religious organizations are exempted -- for one year -- from being penalized for not carrying insurance plans covering contraceptives and abortion-causing drugs.

Previously, some religious organizations -- such as evangelical school Wheaton College -- didn't qualify for the one-year exemption because they didn't meet a complex series of guidelines issued by the Department of Health and Human Services (HHS).

The newest guidelines, issued in mid-August, simply mean that Wheaton and other religious organizations like it now have until August 2013 to carry insurance plans covering abortion-causing drugs -- a proposition that the groups, who staunchly oppose abortion, say is unacceptable.

HHS' broadening of what are called the "safe harbor guidelines" was a small victory for Wheaton, but it resulted in a loss in court. On Friday (Aug. 24), a federal judge dismissed the lawsuit Wheaton had filed Aug. 1 seeking to overturn the contraceptive/abortion mandate. The judge, Ellen Segal Huvelle, ruled the case was not "ripe" for consideration because Wheaton was now exempt for a full year.

Wheaton was represented in court by the Becket Fund for Religious Liberty. Government attorneys had asked the judge to dismiss the suit.

"The government has now re-written the 'safe harbor' guidelines three times in seven months, and is evidently in no hurry to defend the HHS mandate in open court," Becket Fund's Kyle Duncan said in a statement. "By moving the goalposts yet again, the government managed to get Wheaton's lawsuit dismissed on purely technical grounds. This leaves unresolved the question of religious liberty at the heart of the lawsuit."

Hannah Smith, another Becket Fund attorney, told Baptist Press the threat to religious liberty is very real, despite the one-year safe harbor. There are now more than 25 lawsuits nationwide seeking to overturn the contraceptive/abortion mandate. The latest lawsuits were filed Aug. 23 by the Alliance Defending Freedom (ADF) on behalf of two evangelical schools -- Grace College and Seminary in Indiana and Biola University in California -- underscoring once again it is more than a Catholic-centered issue.

"This mandate is one of the most troubling intrusions on the right of religious freedom in our country that we've seen in a long time," Smith said. "It puts religious organizations in a terrible position of having to choose between following their convictions and obeying the law, and I think that is a perilous place for religious organizations. It is troubling that the government has chosen to impose this on them."

Wheaton is deciding whether to appeal the ruling, Smith said.

The mandate was announced by HHS in August 2011 as part of the health care law championed by President Obama. Although the Supreme Court upheld the health care law in June, the justices' ruling did not deal with the religious liberty issues surrounding the contraceptive/abortion mandate. That means the nation's highest court could yet strike down what has been for religious groups the most controversial part of the law.

Under the mandate, all employers must pay for insurance plans that cover contraceptives and drugs such as Plan B and ella -- drugs that can work after fertilization and cause a chemical abortion. Ella even can work after implantation.

The HHS guidelines exempt churches but not religious organizations such as Christian schools and universities or faith-based hospitals.

The HHS guidelines have a large "grandfather" loophole that allows businesses and organizations to avoid covering contraceptives and abortion-causing drugs, provided the businesses' and organizations' insurance plans have not made any major changes since March 23, 2010 -- the date the health care law was signed. Because Wheaton had made changes to its plan it was not eligible for the grandfather exception. The HHS loophole means some religious organizations are facing the August 2013 deadline while others are not.

Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email ( baptistpress.com/SubscribeBP.asp).

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