Moore, others: Final mandate rules fail
The Obama administration again failed to provide adequate conscience protections in the final rules for its abortion/contraception mandate, religious freedom advocates say.
The Department of Health and Human Services issued June 28 the latest, and supposedly last, regulations on a requirement that is part of implementing the 2010 health care reform law. The mandate requires employers to carry insurance plans that cover contraceptive drugs, even if they can cause chemical abortions.
The new rules, however, did nothing to accommodate conscientious objections by for-profit companies. While they extended the mandate’s implementation date for Christian institutions and other non-profits from Aug. 1 to Jan. 1, 2014, they failed to free them from complicity in abortion, critics said.
“Sadly there is nothing new here,” said Russell D. Moore, president of the Southern Baptist Ethics & Religious Liberty Commission. “The administration has given people of faith a deadline to comply with these demands. This is simply a restatement of those demands.
“Freedom of conscience is a natural and inalienable right, not an allowance handed out by Uncle Sam,” Moore said. “Sadly, these rules are asking citizens to choose between obedience to God and compliance with the regulatory state. We must stand with conscience.”
The latest regulations simplify the meaning of “religious employer” from previous guidelines, according to HHS, but still include only churches and other “houses of worship” as eligible under that definition for exemption.
Under the accommodation for other non-profits that object to the abortion/contraception mandate, they “will not have to contract, arrange, pay for or refer contraceptive coverage,” HHS said. In an insured health plan, the insurance company will pay for contraceptives, and in a self-insured plan, a third-party administrator will provide or arrange such payments, according to HHS.
Those arrangements fail to relieve the conscientious objections of non-profits, critics said.
“[T]his doesn’t solve the religious conscience problem because it still makes our non-profit clients the gatekeepers to abortion and provides no protection to religious businesses,” said Eric Rassbach, deputy general counsel with the Becket Fund for Religious Liberty. “The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires.”
HHS “is acting like a kid who doesn’t want to eat his lima beans,” Rassbach said. “Our Constitution and laws require them to protect religious exercise, but they really don’t want to, so they are trying every trick in the book to avoid doing so.”
Anna Higgins, director of the Family Research Council’s Center for Human Dignity, described the rule for non-profits as an “accounting gimmick” that fails to protect religious freedom.
“The mandate does not protect women’s health either,” she said. “It threatens women’s health by forcing religious employers into the untenable choice of violating their consciences or dropping health coverage for families and the women they employ. That doesn’t help women’s health; it harms it.”
The Becket Fund, which is representing Hobby Lobby and seven religious non-profits in lawsuits against the mandate, said the final regulations differ little from proposed rules issued in February. The February draft proposal and the June 28 final rules joined HHS’ original August 2011 abortion/contraception mandate and the March 2012 proposed version in failing to address the concerns of religious liberty advocates.
The government-defined contraceptives covered by the abortion/contraception mandate include Plan B and other “morning-after” pills, which possess a secondary, post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The mandate also covers “ella,” which — in a fashion similar to the abortion drug RU 486 — can even act after implantation to end the life of the child.
Of the 61 lawsuits that have been filed against the abortion/contraception mandate, 32 are by for-profits, including Christian publisher Tyndale House and some owned by pro-life evangelicals, such as retail chain Hobby Lobby, or Catholics, according to the Becket Fund. Courts have granted injunctions or restraining orders blocking enforcement of the mandate to 22 for-profit corporations but have refused to provide such relief to six others. No action has been taken in four for-profit lawsuits.
The ERLC has signed onto five briefs defending the religious freedom of entities challenging the mandate at the appeals court level.
Moore and other religious leaders plan to release an open letter July 2 in Washington to call for religious freedom protections in the abortion/contraception mandate and to urge Congress to act to guard religious liberty.
Moore and William Lori, archbishop of Baltimore and chairman of the U.S. Conference of Catholic Bishops’ ad hoc committee for religious liberty, urged all members of Congress in a June 21 letter to support the Health Care Conscience Rights Act, H.R. 940 in the House and S. 1204 in the Senate. The legislation is designed to bolster conscience protections in health care, including for the abortion/contraception mandate.
The ERLC says the mandate gives those who object to it three options, all unacceptable: (1) Violate their consciences by obeying it; (2) violate the law, which could produce hefty fines; or (3) stop providing health coverage, which could force workers to purchase insurance with provisions they object to and possibly open the employers up to penalties.