US Bishops' attorneys call mandate 'accommodation' inadequate

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Arguing that a promised “accommodation” to the Obama administration’s contraception mandate fails to address religious freedom concerns, attorneys for the U.S. bishops suggest a possible lawsuit if the mandate is not rescinded.

“Absent prompt congressional attention to this infringement on fundamental civil liberties, we believe the only remaining recourse, in light of the approaching regulatory deadlines, is in the courts,” said lawyers representing the U.S. Conference of Catholic Bishops.

The mandate and its extremely narrow religious exemption are currently being challenged in at least 11 lawsuits by states, colleges, private employers and organizations across the country. 

On May 15, Anthony R. Picarello and Michael F. Moses, who serve as general counsel and associate general counsel, respectively, for the bishops’ conference, submitted formal comments on the most recent suggestions regarding the administration’s contraception mandate.

The controversial mandate will require employers to offer health insurance plans that cover contraception, sterilization and abortion-inducing drugs, even if doing so violates their consciences.

While the mandate includes a religious exemption, few groups would qualify for it because it applies only to nonprofit organizations that exist for the purpose of inculcating religious values and both serve and employ primarily members of their own faiths.

The bishops’ attorneys reiterated their previous argument that this exemption is “unprecedented in federal law, improperly narrow, and unlawful.”

Widespread criticism of the mandate led the Obama administration to publish a new “advance notice of proposed rulemaking” in March. The notice outlines various suggestions for different ways to implement the mandate as it will apply to religious organizations that oppose the required coverage but do not qualify for the exemption.

The administration has invited public comment on the advance notice until June 19. Afterwards, it will move forward with the process of issuing further regulations on the implementation of the mandate.

In their comment, the bishops’ lawyers repeated arguments that in addition to being poor health policy, “the mandate itself is unjust and unlawful,” in violation of numerous federal statutes and the First Amendment’s protections of religious liberty. 

The attorneys observed that the mandate is already finalized and has not been changed by the advance notice, which promises a future “accommodation” but does not affect the rule as it is written.

Furthermore, they said, the promised accommodation will not extend to secular stakeholders that object to the mandate. Rather, the Obama administration has made it clear that the accommodation will apply only to religious organizations.

In addition, the attorneys said, the accommodation does not provide adequate relief, “even for those few stakeholders that qualify for it.”

They argued that the suggested options regarding coverage through a third-party administrator are all insufficient because the plan itself continues to fund or serve “as a gateway” to facilitate earmarked funding for objectionable products and procedures. 

Either by paying for the coverage through their premiums or allowing access to such coverage through the plan itself, objecting organizations will be facilitating something that they consider gravely immoral, they said.

The bishops’ lawyers also pointed out that by having insurers or third-party administrators automatically provide the controversial coverage, women are denied the freedom to decline the coverage or to prevent their minor children from being offered “free” and “private” contraceptives and related “education” without parental consent.

They further noted that the religious rights of third-party administrators and insurance issuers have not been adequately addressed.

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The attorneys also voiced concern over the fact that numerous individuals, employers and insurers who object to the mandate are not eligible for the “temporary enforcement safe harbor,” which would delay the implementation of the mandate for one year.

These stakeholders will be subject to the mandate for plan or policy years starting as soon as August 1, 2012, the attorneys warned. In the next few months, they will face the choice of violating their deeply-held beliefs or dropping out of the health insurance marketplace, with the possibility of facing crippling penalties that could put them out of business. 

Furthermore, the lawyers said, the advance notice of proposed rulemaking raises new questions, as some of its statements are ambiguous or hypothetical and require clarification.

They observed that the administration has not yet determined how to treat religious organizations that object to some but not all of the coverage, such as Christian groups that oppose abortion-causing drugs but allow for contraceptive use.

In such cases, the government should recognize the conscience rights “of all stakeholders,” whether they object to part or all of the mandated coverage, they said.

The bishops’ attorneys also argued that an organization’s past inclusion of contraception and related coverage should not prevent it from qualifying for an accommodation in the future. The Obama administration has already made previous coverage of such products a disqualification for the “temporary enforcement safe harbor” that is being offered to some groups.

However, the lawyers noted, some employers and organizations may have included such coverage “mistakenly or unknowingly,” and now wish to correct that error in accordance with their conscience. 

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The bishops’ attorneys emphasized that “the only complete solution to this set of problems is to rescind the mandate.”

Short of that, they said, the administration should at least “adopt an exemption that protects the consciences of all stakeholders with a religious or moral objection to the mandate.”

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