HHS revises mandate third time; foes say it misses the point

Washington D.C., Aug 28, 2012 / 02:58 am

A slight revision of the federal contraception mandate offers some additional protection for certain religious employers but is not sufficient to ease religious freedom concerns, said a lawyer who is working to challenge the mandate in court.

Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, told CNA on Aug. 27 that the Obama administration is governing by "sloppy executive fiat" and is failing to address the underlying problem with the controversial mandate.

She explained that for the third time in seven months, the federal government has rewritten the guidelines for the "safe harbor" that offers a one-year reprieve from the mandate to some non-profit religious organizations that object to its demands.

"They're making it up as they go along," she said. "They haven't really thought through these issues carefully."

The Becket Fund is representing Wheaton College, a Christian liberal arts college in Illinois, in a lawsuit challenging the mandate. The controversial rule requires employers to offer health insurance that covers contraception, sterilization and early abortion drugs, even if doing so violates their consciences.

Wheaton College argued that the mandate violated its religious freedom and filed for a preliminary injunction preventing its enforcement.

As a result, the federal government changed the safe harbor requirements, allowing Wheaton College to qualify for the temporary delay in the mandate.

Smith observed that the safe harbor, as it had previously been written, did not apply to Wheaton. The Christian college does not object to all forms of contraception, but only to products that cause early abortions, she said.

Initially, the safe harbor did not apply to employers that offered coverage of some contraceptives, she explained, but that regulation has now been changed to include those that accept certain elements of the coverage while objecting to others.

In addition, she said, Wheaton College was originally disqualified from the exemption because it had offered coverage of the products it objected to after Feb. 10, which was the deadline by which employers must discontinue the coverage in order to qualify for the reprieve.

Smith explained that coverage of early abortion drugs Ella and Plan B had been "inadvertently and unknowingly included in the plans," and when administrators discovered it, they immediately began working with the college's insurance company to remove the coverage. This process was not completed until March.

The federal government has now decided that because the college had "made efforts" to remove the coverage before Feb. 10, it can qualify for the safe harbor, she said.

But although the new regulation offers some protection to Wheaton College, it is "not a complete victory," Smith cautioned.

She explained that the safe harbor is merely a 12-month "delay tactic" that will postpone "the inevitable conflict that will arise" between government and religious organizations that object to the mandate.

In addition, she said, Wheaton College is not entirely protected over the next year, because employees can still file private lawsuits trying to force the college to adhere to the mandate.

After the new regulations for the safe harbor were announced, Wheaton's lawsuit was dismissed as premature in a court decision that pointed to the administration's promised "accommodation" for religious freedom, she noted.

But the accommodation proposals put forward by the administration "are not satisfactory to religious institutions" and do not adequately address concerns of religious freedom, Smith stated.

She said that the Becket Fund will be carefully assessing options and following possible developments with the administration's proposed accommodation to determine what further legal action may be necessary.