Still doesn't cut it, bishops say on latest mandate tweak

Washington D.C., Oct 11, 2014 / 05:44 am

Despite another wave of changes to the Obama Administration's HHS mandate, the U.S. bishops' conference says that the regulation still fails to respect religious freedom.  

"(T)he mandate continues to substantially burden the religious liberty of stakeholders with religious objections to the mandated coverage," said Anthony Picarello and Michael Moses, general counsel and associate general counsel for the U.S. Conference of Catholic Bishops.

"Because it does not further a compelling government interest by the means least restrictive of religious exercise, the mandate continues to violate the Religious Freedom Restoration Act," they stated in Oct. 8 comments to the Department of Health and Human Services.

The comments were issued in response to an invitation for public comment by the administration, after the Department of Health and Human Services changed the terms of its controversial contraceptive mandate in the wake of the Supreme Court's decision on the "Hobby Lobby" case.

In its decision, the high court ruled against the federal contraception mandate as it applied to two closely-held for-profit companies, both family-owned businesses.

The mandate requires employers to offer health insurance covering contraception, sterilization and some drugs that can cause early abortions. The family businesses in the court case both said the mandate forced them to violate their deeply-held religious beliefs. The Supreme Court agreed.

This prompted a proposed change in the mandate from the Obama administration, the latest in a series of changes as lawsuits from hundreds of plaintiffs continue to wind their way through the court system.

Although the mandate includes a narrow religious exemption for houses of worship and their affiliated organizations, many faith-based groups – such as soup kitchens, hospitals and schools – are not affiliated with a specific house of worship and therefore do not qualify for the exemption.

Instead, these religious groups were offered an "accommodation" by which they could sign an authorization form directing an insurer or third-party administrator to provide the contraceptive coverage. Many religious groups still objected to this scenario, saying that they were still required to authorize the coverage they found morally objectionable, and arguing that the cost of the "free" contraceptives would ultimately be passed down to them through higher premiums.

In the wake of the Hobby Lobby case, the administration has proposed an "interim final rule" that would alter this accommodation and also extend it to closely-held for-profit companies. Under the original mandate, for-profit businesses were excluded from both the exemption and the accommodation.

Under the proposed changes, non-profit and closely-held for-profit employers would be able to directly notify the Department of Health and Human Services of their religious objection to the provision of contraception or related products and procedures. The government would then facilitate contact with insurers and third party administrators to initiate the coverage.
 
In their comments, Picarello and Moses explained that the proposed rules do not fundamentally alter the mandate, nor do they adequately address the concerns of "the vast majority of individual and institutional stakeholders with religious or moral objections to contraceptive coverage."

They also noted that the new rules for the accommodation of non-exempt religious groups still require employers to participate in the facilitation of contraception coverage by providing the government with "all it needs" to provide the objectionable products and procedures.

Additionally, the proposed rules make "the current situation worse for closely-held for-profit organizations with religious objections to contraceptive coverage," by extending the accommodation to certain for-profit businesses that were ruled to be exempt in the Supreme Court's recent decision.

The comments also objected to the different treatment given to houses of worship, non-profit religious organizations and for-profit companies with religious objections. Doing so, they said, creates tiers of religious liberty rather than respecting the conscience rights of all.

"There is no legitimate, let alone compelling, reason to require a nonprofit pro-life organization, for example, to engage in profit-making activity to qualify for an accommodation of its religious objection to abortifacient drugs," Picarello and Moses argued.