A requirement under President Obama’s health care law for employers to provide access to insurance coverage of preventative services at no direct cost to employees caused uproar among faith communities and religious organizations when the administration announced in February these services must include abortifacients, sterilization, and contraceptives.
Under its initial rule, the U.S. Department of Health and Human Services (HHS) mandated all private insurance plans cover the costs of such prescriptions as preventative care for women.
Although representatives of Christian communities had lobbied the White House for months to create a full exemption for organizations which have religious reasons to oppose being forced to pay for these services, their requests were ignored. HHS’s rule included an exemption only for actual faith institutions, such as churches, and not for nonprofits, charities, or hospitals. Organizations would have a year to comply.
Religious Freedom v. Federal Requirements
Sr. Mary Ann Walsh of the U.S. Conference of Catholic Bishops raised concerns over how Catholic hospitals would operate under such a mandate. She says they have been given an ultimatum: abandon their values and go with the government, or be true to their Catholic morals and either violate the law or serve only Catholics, undermining ministry.
“We help others because we are Catholic, not because others are Catholic,” said Sr. Walsh.
Walsh says the exemption was so narrowly defined that most religious organizations, such as parochial schools and universities, charitable institutions, and religious hospitals, would be required to offer plans that cover contraception, abortifacients, and sterilization services.
This met with disapproval from religious organizations who disagree with such medical practices on the basis of moral principle, and concerns the decision infringed on their First Amendment right to the free exercise of religion. In a letter to HHS criticizing the mandate, University of Notre Dame President Fr. John Jenkins stated, “It’s about religious freedom, it’s not about contraception.”
Attempt at Compromise
In response to the high level of outrage from religious organizations, political leaders, and the public, the Obama administration decided to announce what it called a compromise. The new policy has not yet been released as a new rule from HHS, but according to a White House press release, “Under the new policy … women will have free preventive care that includes contraceptive services no matter where she works. If a woman works for religious employers with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide contraception coverage, but her insurance company will be required to offer contraceptive care free of charge.”
White House Chief of Staff Jack Lew stated, “hopefully now this [compromise] will set the issue to rest.” Organizations such as Planned Parenthood praised the administration’s decision, and White House Press Secretary Jay Carney called the move an “accommodation,” and “an appropriate balance between religious beliefs and access to preventative services for women.”
‘It’s Not a Compromise’
However, many of the opponents of the Obama administration’s initial approach are unsatisfied with the proposed compromise. The new version of the mandate does nothing to protect religious liberty, and still forces religious organizations to compromise their moral conscience, says Yuval Levin, a fellow at the Ethics and Public Policy Center in Washington, DC.
“The new rule does the exactly the same thing. It puts religious employers in the position of having to chose between providing their workers with free access to contraceptives … or not providing those workers with health insurance at all and paying a large fine,” Levin said.
Rep. Paul Ryan (R-WI) went even further, claiming the administration’s compromise was nothing more than an “accounting trick.”
“It forces the insurance company … to pay to do the coverage. So instead of making the institution itself [pay], it reinforces the insurer, and a lot of these Catholic institutions are self-insured,” Ryan said in a press conference. “It’s not a compromise. The president’s doubled down.”
Sen. Marco Rubio (R-FL) introduced legislation, the Religious Freedom Restoration Act of 2012, to strip this requirement from Obama’s health care law. It has already garnered 29 cosponsors in the Senate.
Legal Suits Move Forward
States, too, are examining the possibility of legal recourse to avoid complying with the mandate. Michigan is the first to move forward on it, with Republican Attorney General Bill Schuette announcing the state will soon file legal briefs in support of a lawsuit brought by the Becket Fund for Religious Liberty against the Obama administration.
“We cannot compromise religious liberty,” Schuette said in announcing the move. “We cannot undermine constitutional protections. This is a radical attack on the First Amendment that cannot stand.”
Additional legal action is being considered at the federal level, according to Anna Franzonello, legal scholar at Americans United for Life.
“This is a violation of religious liberties and conscience rights for Catholics and for so many others in religious communities when it comes to requiring the provision of life-ending devices,” Franzonello said. “Consider that the line of cases from Griswold to Roe, cases that deal with contraception and abortion—none of them say that there is a right to payment for these drugs, devices, and procedures. The Obama administration has twisted this from an issue of your right to privacy to their claim they can demand participation from everyone else.”
More to Come?
Franzonello expects additional action in the coming months.
“In law school, I never learned the First Amendment had a balancing clause for non-constitutional rights,” Franzonello said. “It’s not okay to say I have to pay for someone else to do this.”