HHS mandate changes protect only 'a few more ministries'

Washington D.C., Feb 5, 2013 / 04:06 am

Legal analysts warned that the government's new proposals on the HHS mandate do little to expand religious freedom protections for employers that object to it.

"This unilateral redefinition of religious freedom undermines the sanctity of religious freedom for all people," said legal expert Brian Walsh, "even those who are not affected and have no objection to these products and services."

Walsh, the executive director of the American Religious Freedom program at the Ethics and Public Policy Center, spoke with CNA on Feb. 4 about the latest development regarding the federal contraception mandate.

"The idea that the administration can unilaterally make these decisions should be concerning for all people of faith," he said.

On Feb. 1, the Obama administration announced its intent to modify the federal contraception mandate, which requires employers to offer health insurance coverage of contraception – including some drugs that can cause early abortions – and sterilization.

Religious organizations and businesses owners who have conscientious objections to these requirements have contested the requirement. More than 40 lawsuits are currently challenging the mandate on the grounds of religious freedom.

The Obama administration said that it would simplify the terms under which an objecting employer may qualify for a religious exemption, dropping requirements that such groups exist to inculcate religious beliefs and both hire and serve primarily members of their own faiths.

Religious groups do not qualify for the exemption are instead offered an "accommodation" under which their employees will be offered a parallel health insurance plan that covers the objectionable products and procedures.

The government argues that this contraception coverage can be offered for free because it decreases childbirths and provides women with health benefits that lower their overall health care costs.

However, the administration's announcement has drawn criticism for failing to address the religious liberty concerns surrounding the mandate.

The Alliance Defending Freedom – which is handling several religious freedom lawsuits challenging the regulation – explained that the "new exemption is simpler than before but continues to cover only a sliver of religious organizations."

This is because the exemption still relies upon a section of tax code that categorizes churches, their conventions, auxiliaries and religious orders, the group explained in a Feb. 1 blog post.

"Still not covered by the new exemption" the blog post explained, "are virtually all non-church religious nonprofit organizations," including aid organizations, hospitals, schools, independent food pantries and religious publishers.

Walsh agreed what while "a few more ministries" are now exempt, "the mandate itself is just as objectionable and offensive as it was when it was issued a year ago."

For those groups that fall under the accommodation, he said, the government has proposed "nothing more than an accounting gimmick," which many religious employers still consider morally unacceptable. 

He also observed that non-religious employers that object to providing the contraceptive coverage are offered no relief under the mandate.

"I think what's most deeply disturbing," Walsh said of the revision, "is that after a year of internal deliberation, the administration still believes that it has the power, on its own, to redefine American religious freedom and restrict protections of those freedoms in a way the federal government has never before considered."

Rep. Chris Smith (R- N.J.), who co-chairs the bipartisan Congressional Pro-Life Caucus in the House, also spoke out against the announcement.

"The so-called new policy is the discredited old policy, dressed up to look like something else," he said in a Feb. 1 statement.

"The mandate remains a serious violation of religious freedom," he said. "Only the most naïve or gullible would accept this as a change in policy."

Smith explained that the proposed changes are "neither an 'accommodation' nor a compromise," as they offer "no relief for small businesses run by people of faith."

In addition, he said, the new proposal offers no real option for charities, hospitals or schools that wish to provide insurance that "does not violate their moral or religious beliefs."

Organizations that cannot in good conscience accept the terms of the "accommodation" could face "ruinous fines," Smith observed, and if these organizations are forced to shut down, it would harm the most vulnerable members of society, whom they serve.