Controversial HHS mandate accommodation now finalized

Washington D.C., Jul 10, 2015 / 12:18 pm

In its latest update to the federal contraception mandate, the Obama administration on Friday finalized a set of proposed rules which the U.S. bishops have previously said still violate religious freedom.

A statement released Friday by Secretary of Health and Human Services Sylvia M. Burwell said that the measures balance the government's goal of providing free contraceptives to women with "respecting religious beliefs" of employers who object to them.

The HHS mandate was first issued in 2012 as part of the Affordable Care Act, requiring employers to offer employee health plans that included free sterilization and contraception, including some drugs that can cause early abortions.

Many religious non-profits and business owners objected to the mandate on the grounds that it forced them to cooperate in practices they believe to be morally wrong. More than 300 plaintiffs have filed lawsuits challenging the mandate; the majority of cases have been granted preliminary injunctions protecting them against it.

Last summer, the Supreme Court ruled in favor of Hobby Lobby and other "closely-held" for-profit employers who objected to the mandate.

Responding to the lawsuits and widespread criticism, the Obama administration has released a series of modifications to the mandate. Earlier revisions instructed religious organizations to authorize third-party insurers and administrators to provide the coverage which they found objectionable. Many groups said this still forced them to violate their beliefs by requiring them to authorize the provision of things they found immoral.

The latest "accommodation" allows religious non-profits who object to the mandate to send a written notice of their objection directly to the Department of Health and Human Services, who in turn will inform the insurers and third-party administrators of the objection. Separate payments will then be made to the enrollees for the coverage at "no additional cost" to the employer.

In response to the Supreme Court ruling that Hobby Lobby and similar companies could not be forced to comply with the mandate, the Department of Health and Human Services also announced Friday that closely-held for-profit businesses would still be subject to the mandate, but under the same "accommodation" as religious non-profits.

The U.S. Conference of Catholic Bishops opposed this new accommodation when it was proposed in 2014, saying it still requires religious organizations to facilitate activity that violates their religious beliefs.

"(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. bishops' conference.

The "accommodation" still violates religious liberty because it requires religious non-profits and closely-held for-profit businesses to give the government "all it needs" to provide the morally-objectionable procedures and drugs," they said in comments last October.

"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," the bishops argued in Oct. 8 comments to the Department of Health and Human Services.

Criticism has also been raised about the tier-system used to apply religious exemptions for the mandate. Houses of worship and their affiliated organizations are completely exempt from its requirements, while religious non-profits fall under the accommodation, and for-profit companies that do not meet the legal standards of being "closely-held" are not offered any protection at all. Critics argue that this creates "classes" of religious freedom, rather than applying First Amendment protections equally among all parties.