By Shauna Segadeli, Law Student
On Friday the Department of Health and Human Services announced an amendment to its rules concerning the religious exemption for employers requiring the provision of health insurance that covers contraception, abortion-inducing drugs, and sterilization.
Last February, HHS established a one-year “safe harbor” for certain nonprofit organizations that have religious objections to contraception coverage that ends in August 2013. HHS committed to a period of rulemaking during this “safe harbor” in order “to provide women with contraceptive coverage without cost sharing as required by [the] Act, while protecting certain additional organizations from having to contract, arrange, pay, or refer for any contraceptive coverage to which they object on religious grounds.”
The previous version of the accommodation determined a religious employer’s eligibility based on four requirements: “a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization… [including] churches,” etc.
Faith-driven employers were confronted with a serious problem if their ministries reached beyond the scope of that definition. What about a religious employer who serves its community in more ways than spreading its religious values, like a church-managed soup kitchen?
What about a religious employer who hires employees without regard to their religious affiliations, like a parochial school?
What about a religious employer who feeds the hungry, clothes the naked, and visits the imprisoned of all creeds?
What about a religious employer whose faith inspires its business practices, like Hobby Lobby?
The amended definition of a religious employer “eliminat[es] the first three prongs of the definition and clarif[ies] the application of the fourth.” Church soup kitchens, parochial schools, and religiously-affiliated charities are off the hook.
No such good news for family businesss Hobby Lobby, however, who will face fines of $1.4 million per day for refusing to comply with the mandate rather than violate its conscience. Per the last requirement standing, “an organization is not considered to be organized and operated as a nonprofit entity if its assets or income accrue to the benefit of private individuals or shareholders.”
A second accommodation is made for religious institutions of higher education with religious objections to coverage of “contraceptive services.”
The exempt organizations’ and schools’ employees and students will still get insurance coverage for “contraceptive services without cost sharing,” as the regulations put it, but these services won’t be paid for by the exempt employers.
What? Who is footing the bill then? Only in Planned Parenthood’s dreams does Plan B fall out of the sky.
This new amendment is the fruit offering of the one-year rulemaking period. It’s supposed to be a compromise. IF (that’s a big “if”) the amendment walks the way it talks, and really does exempt religious non-profits from providing insurance that covers contraception, abortive pills, and sterilization, then I must admit that this accommodation is one small step for religious freedom.
The footprint: this accommodation will take some serious legal heat off of the Obama administration and the Department of Health and Human Services. Forget the enormous lawsuits (and headlines) of the University of Notre Dame, the Archdiocese of New York, Catholic Charities; this, of course, at the expense of for-profit religious employers, the faith-driven job creators whose convictions guide them in the marketplace.
These lawsuits basically challenge the HHS mandate to provide contraceptive services under the First Amendment’s guarantee of free religious exercise, as well as the Religious Freedom Restoration Act. RFRA requires that any governmentally-imposed, substantial burden on religious exercise be justified by compelling government interests, as well as be the least restrictive means to achieve those interests.
According to the American Center for Law and Justice, eleven federal courts have already granted injunctions to for-profit business owners, finding that the owners have a strong likelihood of succeeding on their claims that the mandate violates RFRA. A handful of courts have dismissed similar lawsuits because HHS regulations had not yet been finalized, without adjudicating on the merits of the claims.
No “religious exemption” is complete that does not include all employers with religious objections to contraceptive coverage. Alan Sears, President of the Alliance Defending Freedom, said it best: “Religious leaders and their organizations cannot be bought off with personal immunity, in exchange for abandoning their fellow believers and their own flocks to federal subjugation of their freedoms”(as quoted in press release).
Another take-away from this play by the administration: The definition of “contraceptive services” is slyly suggestive of the “conservative War on Women” rhetoric. The “contraceptive services” that pro-life employers are required by the Affordable Care Act to provide include sterilization procedures, as well as all FDA-approved contraceptive methods, among which are post-coital contraceptives that can act as abortifacients, such as ella and Plan B.
You know, “women’s preventive care.”
A broad range of faith traditions reject abortive drugs as immoral, while Catholics alone reject artificial contraception in the strict, pregnancy-prevention sense of the term. By endowing abortive drugs and sterilization with the misleading label of “contraceptive services,” the administration paints religious objections as more extreme than average Americans are willing to entertain: a public majority opposes abortion, but few people oppose widespread availability of the Pill.
This move is a painstaking attempt by the administration to appear receptive to religious objectors’ concerns, without reactively budging from its insistence on contraception, abortive pills, and sterilization for all.
As Helen Alvare puts it, “[The administration’s] desperation to get contraception, early abortifacients and sterilization into the hands of every woman and girl would be comical if they weren’t in such deadly earnest. These new regulations are very long and very convoluted and very intent on exempting the fewest folks possible.”
As the law stands, it’s fine to reject coverage for contraception, abortifacients, and sterilization procedures if you are a church, but not if you are a church-going business owner.
I must have missed the First Amendment’s footnote: *Freedom of religious exercise not extended to lay people. Further, non-religious pro-life organizations have no avenue for exemption from providing life-ending drugs for employees. Employers with religious objections to providing such “preventive care” have a simple choice: follow profit or follow conscience?