Obama’s HHS Mandate’s Religious “Accommodation”: An Affront to People of Faith

Late last week, the Obama administration filed a Notice of Proposed Rule Making (NPRM), in which it purportedly made two substantive changes to the controversial HHS “contraceptive services” mandate.  As an initial matter, the administration did nothing to protect the rights of for-profit companies, such as Hobby Lobby, which have similar religious and moral objections to the mandate.  Furthermore, the proposed changes did nothing to remedy the constitutional and statutory defects of this unlawful mandate as it applies to non-profit organizations, such as AFLC’s client, Priests for Life.  The proposed changes are as follows.

First, the Obama administration proposed a change to the definition of “religious employer” for purposes of the only exemption that provides meaningful protection for the right of conscience (i.e., it exempts the organization from having to provide any coverage).  While the proposed change does eliminate three criteria from the current definition [i.e., to qualify as a “religious employer” and thus be eligible for the exemption, the current definition requires the employer to meet the following criteria (1) have the inculcation of religious values as its purpose; (2) primarily employ persons who share its religious tenets; and (3) primarily serve persons who share its religious tenets], it ultimately adopts a “simple definition of ‘religious employer’” for purposes of the exemption by including only those organizations that fall under Section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.  These organizations are essentially churches and religious orders—a narrow class of non-profit organizations that are not required to file tax returns.  Priests for Life, while a non-profit religious organization, does not qualify for this narrow exemption.  And, as noted, nor does any for-profit company.

Second, as a non-profit religious organization that opposes the mandated contraceptive services, Priests for Life would arguably qualify for the proposed “accommodations for additional non profit religious organizations” [as the Obama administration is describing it].  According to Obama’s Department of Health and Human Services (“DHHS”), these non-profit organizations [Priests for Life included] “would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.”  This is accomplished by having the “issuer” [i.e., the insurance company] provide separate individual health insurance policies “for plan participants and beneficiaries [i.e., Priests for Life’s employees] without cost sharing, premium, fee, or other charge.”  These individual health insurance policies would then cover the contraceptive services at apparently no cost to anyone.  “The issuer would automatically enroll plan participants and beneficiaries in a separate individual health insurance policy that covers recommended contraceptive services.”

DHHS claims that this is “cost neutral because they [insurance companies] would be insuring the same set of individuals under both polices and would experience lower costs from improvements in women’s health and fewer childbirths.”

In short, by virtue of the fact that Priests for Life provides health insurance for its employees, its employees will now have insurance that covers contraception, sterilization, and abortifacients.  It is nonsense, however, to think that this will not affect premiums.  Nonetheless, the Obama administration is still forcing Priests for Life to cooperate with evil.  The “contraceptive services” at issue are not morally neutral.  Priests for Life does not just “accept” these services—it morally opposes them.  The Obama administration is, in many respects, telling Priests for Life that if you want to have health insurance, then you must also cooperate with Planned Parenthood [by way of an illustration], who will provide contraception, sterilization, chemical abortions, etc. for your employees at no cost to you—all the while doing it with a straight face.

Needless to say, our lawsuit against the Obama administration will march on . . . .