Adjustment to HHS mandate met with initial disappointment
Religious Liberty supporters outside the U.S. Supreme Court building in Washington D.C. June 26, 2014. Credit: Addie Mena/CNA.
Religious Liberty supporters outside the U.S. Supreme Court building in Washington D.C. June 26, 2014. Credit: Addie Mena/CNA.
By Adelaide Mena
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.- Religious groups have voiced concern over the latest set of suggested changes to the federal contraception mandate, while saying they will examine the proposals fully in order to give an in-depth response.

“The Administration is once again revising its regulations on the HHS mandate,” noted Archbishop Joseph E. Kurtz of Louisville, Ky., president of the U.S. Conference of Catholic Bishops. “We will study the regulations carefully and will provide more detailed comments at a later date.”          

The archbishop said in an Aug. 22 statement that the conference’s “initial review of the government’s summary of the regulations” yielded disappointment “that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate.”
“Instead,” he explained, “the regulations would only modify the ‘accommodation,’ under which the mandate still applies and still requires provision of the objectionable coverage.”

Unfortunately, Archbishop Kurtz said, the proposal to place closely held for-profit employers under the “accommodation” when the Supreme Court had previously exempted them from the regulation altogether “would effectively reduce, rather than expand, the scope of religious freedom.”

On Aug. 22, the Obama administration announced an “interim final rule” adjusting the way in which the federal contraception mandate is applied to religious non-profit groups. Issued by the Department of Health and Human Services under the 2010 Affordable Care Act, the mandate requires employers to offer health insurance covering contraception, sterilization and some drugs that can cause early abortions.

Objections to the mandate have resulted in more than 300 lawsuits from individuals and groups protesting the regulation’s imposition on their religious beliefs. The opposition to the regulation has led the administration to change it numerous times in recent years.

The mandate includes a narrow exemption for houses of worship and their affiliates. Other non-profit religious groups that objected to the regulation were provided an “accommodation” under which they could sign forms authorizing their insurer or a third-party administrator to pay for the products instead.

Many religious groups objected to the arrangement, calling it an “accounting gimmick” and saying that it still required that they violate their religious beliefs by authorizing the provision of products and procedures they found immoral.

Last month, the Supreme Court that Wheaton College, a Christian college in Illinois, could not be forced to sign the authorization form if doing so violated its religious principles.

The Obama administration says that its new rules come in response to the Supreme Court’s rulings and allow an additional pathway for qualifying non-profit religious groups to take part in the accommodation. Rather than contacting their insurance companies directly, they can notify the federal government of their objections to the mandate, and the government will then contact their insurer or a third-party administrator, designating them to assume the costs of the contraception coverage deemed immoral by the employer.  

This change will go into effect immediately, the administration said, although public comments will be accepted for 60 days before a final rule is issued.

The announcement of the new rules prompted numerous statements of dissatisfaction.

“Once again, we find ourselves extremely disappointed by the government’s latest attempt to modify the rules governing the HHS contraceptive services mandate,” said Michael Warsaw, chairman and CEO of EWTN Global Catholic Network, one of the plaintiffs challenging the mandate.

“Instead of broadening the criteria for organizations that should be completely exempt from these rules, it appears that the government has simply changed the flow of paperwork and done little else,” Warsaw said Aug. 22.

“We will continue to analyze the latest rules with our legal team at the Becket Fund for Religious Liberty to determine their impact on EWTN’s challenge to the mandate which is now pending before the 11th Circuit Court of Appeals.  We ask our EWTN Family to continue to keep this matter in their prayers.”

The administration also proposed an expansion of the accommodation to include “closely-held” for-profit companies, saying it will solicit comments on the proposed change before it makes its final decision.

In June, the U.S. Supreme Court ruled against the mandate as it was applied to two “closely held” for-profit businesses, Hobby Lobby and Conestoga Wood Services, saying that the owners of the companies were protected against the mandate by the 1993 Religious Freedom Restoration Act.  The court said that the government had not shown that the mandate was the least restrictive means of achieving its goal of providing free contraceptives to employees.

“Under pressure from hundreds of lawsuits, the government continues to retreat,” said Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which represents many of the plaintiffs filing suit against the mandate.
“After three losses in the Supreme Court and dozens of losses in courts below, the government continues to confuse the issues,” she added in an Aug. 22 statement, saying this should be a clear matter of First Amendment rights rather than “over 70 pages of regulation.”  

“We’ll be reviewing this latest attempt with each of our clients” and giving further responses, she continued.

Gregory S. Baylor, senior counsel for Alliance Defending Freedom, which is also representing plaintiffs challenging the mandate, said that while they will consult their clients to determine the new rule’s effects, it is clear that the changes fail “to extend its existing religious exemption to the religious owners of family businesses and to religious non-profits other than churches.”

“That would have been the best way of respecting freedom for everyone,” he commented.

Tags: Contraception mandate, Religious freedom

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