THE TABLE

A setting to debate the issues of the day.

Are the proposed HHS mandate exemptions enough?

How about a “Do Over” for the HHS Mandate?

By | April 9, 2013

Editor’s Note: The comment period for the latest proposed accommodation to the Affordable Care Act’s requirement to provide contraception coverage ended on April 8. We asked legal thinkers if this round of proposed exemptions to the HHS mandate is adequate. 

Judging by critics’ reactions to the Obama Administration’s latest tweaking of the HHS Mandate, you have to wonder whether the bureaucrats who created the mandate wish they could go back and start over again. To begin with, the Notice of Proposed Rulemaking (NPRM) issued on February 1, 2013, makes no attempt to address the objections of for-profit business owners. So far, for-profit employers, relying on the Ted Kennedy-sponsored 1993 Religious Freedom Restoration Act, have been successful in obtaining injunctions against the mandate in 17 of 22 court challenges. As for nonprofit, religiously affiliated employers, the U.S. Catholic Bishops’ conference, which has been urging the administration to abandon this misguided effort at religious coercion while reiterating its commitment to universal health care for all, has again weighed in with pointed criticisms of this latest version of the mandate. The more than 53 pending legal challenges (a number that grows daily) are not going away anytime soon.

Watching this regulatory spectacle—of proposal, objections, counter-proposal, lawsuits—is all the more frustrating when you consider that the mandate itself has never really been more than a solution in search of a problem. According to figures from the Guttmacher Institute for 2010, 90 percent of U.S. employer-based health plans already cover a “full range of prescription contraceptives,” an amount that has tripled in a decade. Add to that the fact that the U.S. currently spends $2.37 billion a year domestically for “family planning,” and that, according to HHS’s Kathleen Sebelius, “contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support,” and you have to ask: what exactly was the problem the mandate was supposed to address?

More to the point, given the apparently miniscule gap that exists between the current situation and the government’s goal of universally available, free birth control, is there really no better way to bridge that gap, than by coercing the tiny number of employers with religious objections?

It’s true that the latest version does remove the prior version’s most offensive and universally panned requirements: that to be considered “religious,” an employer would have to certify that it primarily employed and served only those of its own religious household. But the new proposal now defines “religious employer” solely with reference to a provision of the tax code that refers to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” This definition would not include most religious ministries of service such as Catholic or other religious hospitals, charitable agencies, and schools. For them, the NPRM offers a mechanism whereby the objecting employer’s health insurer would offer the objected-to coverage directly to the objector’s employees “without cost sharing, premium, fee, or other charge to plan participants and beneficiaries.” Exactly how such coverage is to be made available to people without costing anyone anything is not spelled out in the NPRM. There may be no such thing as a free lunch, but apparently free birth control pills are a different story entirely.

But even if the next NPRM, or the one after that, gets around to explaining how such plans are to work, the moral problem still doesn’t vanish. The coverage is only made available to employees by virtue of the objecting employer’s paying for a policy of health insurance. The employer is still paying for—still providing—coverage that violates its religious principles.

Is there a way out of this quagmire? Actually, there is, and it involves two simple steps. First, the Administration needs to completely back off the coercion of religious objectors—nonprofit and for-profit. Keep a contraceptive mandate if you must, but incorporate into it the kind of conscience exemption that has been in place in federal law since the Church Amendment of 1973, a measure that provides that recipients of federal dollars are forbidden to discriminate against individuals or entities (no specious for-profit vs. nonprofit distinction, by the way) who object to participating in any government programs where such participation “would be contrary to [the] religious beliefs or moral convictions” of those individuals or entities. A host of subsequent congressional measures enacted regularly in the ensuing decades have done the same thing. They acknowledge our bipartisan consensus that—given a pluralistic society in which people of good will differ on the morality of certain health care services—the side that temporarily holds the levers of political power should never coerce the minority into participating in or directly paying for services the minority finds immoral.

As for the small gap in access to free contraceptives that might result from this respect for conscience rights, there is nothing to prevent the government itself from filling that gap without conscripting religious objectors. How? Modify existing federal programs—programs that already provide nearly $2.5 billion per year worth of birth control—by eliminating existing income thresholds at least for people whose employers have conscientious objections to paying for the services. This would bridge whatever gap actually exists while at the same time respecting conscience rights.

The latest NPRM is at least the third attempt by HHS to eliminate supposed obstacles to free contraception while respecting religious liberty. So far, so bad. Instead of plunging deeper into this legal and cultural quagmire, the administration might consider starting over and trying to accomplish its goal in a way that honors our national consensus on religious liberty—a consensus that was largely unchallenged in this context before the advent of the HHS Mandate.

Francis J. Manion is Senior Counsel for the American Center for Law and Justice (ACLJ). The ACLJ has filed seven cases challenging the HHS mandate on behalf of for-profit business owners (including three in St. Louis), and has filed amicus curiae briefs in 13 cases in support of nonprofit challengers to the mandate.

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