Mandate changes insufficient, say religious liberty groups

Washington D.C., Feb 2, 2013 / 16:27 pm

Religious freedom advocates throughout the country are voicing disappointment at suggested changes to the federal contraception mandate aimed at resolving freedom of conscience concerns.

"Today's proposed rule does nothing to protect the religious liberty of millions of Americans," said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

Duncan was one of numerous critics who raised concerns over a Feb. 1 announcement by the U.S. Department of Health and Human Services. The department said that it intends to revise the mandate, which requires employers to offer health insurance plans covering contraception, sterilization and drugs that may cause early abortions.

The mandate – which is currently the subject of lawsuits filed by more than 100 plaintiffs nationwide – initially included a narrow exemption that applied only to non-profit religious groups that exist to inculcate religious beliefs and both serve and employ primarily members of their own faith.

The proposed revisions would drop those requirements, simplifying the definition of a "religious employer" to be any non-profit organization that fits into Internal Revenue Code, Section 6033(a)(3)(A)(i) or (iii), which "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 "would primarily include churches, other houses of worship, and their affiliated organizations," the administration said, giving the examples of parochial schools or soup kitchens run by a church or mosque.

Religious organizations that do not meet these qualifications would not be given an exemption. Instead, these non-profit groups would be given an "accommodation," by which their employees will received the free contraception coverage "through separate individual health insurance policies" provided automatically by the organizations' health insurance issuers.

In the case of self-insured organizations, a third-party administrator would work with a health insurance issuer to provide this coverage.

According to the federal government, this coverage can be provided free of charge because the "tremendous health benefits" of contraception will lower the overall health care costs for women using it.

The suggested changes, issued in an 80-page document, are complex and require additional analysis to determine their implication for specific organizations. However, legal experts initially expressed concern that the proposals do not fully address the religious liberty issues at stake.

"We're doubtful that anyone who wasn't already covered by the exemption would now be covered," Duncan explained in a conference call. He added that "the administration has said itself that the [changes made to the exemption] won't make any difference as to the scope" of the mandate.

"Having reviewed this proposal today," he said, "we have to say we are deeply disappointed." 

"Today's announcement is a veiled attempt by the Obama administration to silence us," added Matt Smith, president of the Catholic Advocate.

"The religious entities able to 'opt-out' are still a minority of those affected," he observed. "Our government should not be picking winners and losers when it comes to preserving our most cherished religious liberties."

George Mason University law professor Helen Alvaré, explained that the expansion added to the exemption "is as small as the government could make it."

Alvaré helped found "Women Speak for Themselves," a diverse group of women who object to political figures claiming to speak on behalf of all women in promoting the mandate.

"These new regulations are very long and very convoluted and very intent on exempting the fewest folks possible," she said in a statement.

In addition, Alvaré noted that the suggested changes would completely fail to protect non-religious organizations, individuals and for-profit businesses, adding that this fact is particularly "disturbing."

"In America, the right of religious freedom extends to all," she said.

Non-religious groups also objected to the announcement, arguing that the government's solution failed to protect their freedom of conscience.

Marjorie Dannenfelser, president of the Susan B. Anthony List, a group that promotes pro-life politicians, argued that the proposal unfairly excludes organizations that do not identify with a certain religion.

"(T)here must be no religious 'test' by the government as to who, and what type of entities, are entitled to a conscience," she said in a statement. "We demand respect for non-religious entities such as the Susan B. Anthony List that recognize the taking of human life is the antithesis of health care."

Many groups – including the U.S. Conference of Catholic Bishops – said they are awaiting a full legal analysis of the proposed changes before they comment.

"We welcome the opportunity to study the proposed regulations closely," said Cardinal Timothy M. Dolan of New York, president of the U.S. Conference of Catholic Bishops.

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