Under the Affordable Care Act (ACA) of 2010,1 all employer health-care plans must provide—at no cost to the employee—certain preventive services for women.2 The inclusion of contraceptives—including abortion-causing contraceptives—in this mandated coverage has caused a public uproar, with religious groups opposed to contraception and/or abortion decrying the violation of their religious freedom.
The ACA is a United States federal statute signed into law by President Barack Obama on March 23, 2010. In an attempt to provide universal health-care coverage, the law reforms certain aspects of private and public health insurance programs, increases insurance coverage of preexisting conditions, and gives insurance access to more than 30 million Americans previously without it.
One provision of the ACA mandates that health plans “provide coverage for and shall not impose any cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.” However, when the Department of Health and Human Services (HHS) published an interim final rule on July 19, 2010, it had not yet defined “contraceptive preventative services for women”; instead, it delegated that decision to the Health Resources and Services Administration (HRSA), a division of HHS. HRSA, in turn, directed a private policy organization, the Institute of Medicine (IOM), to suggest a list of recommended guidelines describing which preventive drugs, procedures, and services should be covered by all health plans.3
Simultaneously, HHS also accepted public comments to the 2010 interim final rule until September 17, 2010. A number of groups filed comments warning of the potential conscience implications of requiring religious individuals and groups to pay for certain kinds of health care, including contraception, sterilization, and abortion.
Despite the stated concerns of these religious entities, on July 19, 2011—one year after the first interim final rule was published—the IOM issued its recommendation that preventive services include “the full range of Food and Drug Administration-approved contraceptive methods [and] sterilization procedures.”4 FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as the “morning-after pill”; and ulipristal, also known as “ella,” or the “week-after pill”; and other drugs, devices, and procedures.
On August 1, 2011, 13 days after the IOM issued its recommendations, HHS, the Department of Labor, and the Department of Treasury promulgated the interim final rule. On that same day, HHS issued an amended interim final rule (the mandate), adding an exemption for “religious employers.”
Separate from the issue of contraception, as mentioned above, included in “FDA- approved contraceptive methods” are the drugs Plan B and ella. Many religious individuals and organizations that have conscientious objections to abortion object to the use of Plan B and ella because they believe, and scientific evidence supports their belief, that these drugs constitute abortifacients. That is, Plan B and ella can prevent a human embryo, which these religious groups understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of an embryo.
It was precisely these sorts of concerns that were articulated by religious groups in their public comments before the mandate was issued. While most of the other provisions of the mandate were unobjectionable for religious groups, the provision on contraceptives and abortifacients alone generated several hundred thousand comments. These voluminous comments, however, did not yield the sort of broad protections for conscience rights that these groups were hoping for. Instead, the HHS created an exceedingly narrow religious exemption—one that is narrower than any other religious exemption in federal law.5 Under the regulations, the only organizations religious enough to receive an exemption are those that meet all of the following criteria:
(1) its purpose is the inculcation of religious values,
(2) it employs “primarily” persons who share its religious tenets;
(3) it serves “primarily” persons who share its religious tenets; and also
(4) it qualifies under the IRS code as a church or religious order and has more than 50 employees.6
This exemption is of little solace to religious employers for two primary reasons. First, because the regulation merely states that HRSA “may establish exemptions,”7 it is possible that the federal government will decide not to provide any religious exemptions at all.
Second, HRSA has this discretion with respect to only a vanishingly small class of religious employers. Under this definition, most, if not all, religious colleges or universities would not qualify for any exemption, because these institutions exist not just to inculcate religious values, but also to teach students. The nature of many religious institutions is in fact to serve those outside their community, conditioning their help on a person’s need rather than their chosen faith. As many Christian objectors to the mandate have made clear, not even Jesus’ ministry would qualify for the exemption, as He served both Christians and non-Christians. No homeless shelter, soup kitchen, or adoption agency would qualify, because these organizations exist to serve anyone in need, not just those that profess a certain religious creed.8 And few, if any, of these organizations qualify as a church or religious order under the tax code.
Religious organizations—in particular, the Roman Catholic Church—and individuals vociferously voiced their concerns about the new mandate. On January 20, 2012, the administration announced that, while it would not expand the exemption from its abortion-drug mandate to excuse religious schools, colleges, hospitals, and charitable service organizations from compliance, it would extend the deadline for religious groups who do not already fall within the existing narrow exemption. This meant that such religious groups would have one more year to comply with the mandate or drop health-care insurance coverage for their employees altogether and incur a hefty fine.
This accommodation was deemed insufficient by religious objectors to the mandate, as it did nothing to address the substance of their concerns. After a firestorm of opposition from across the political and religious spectrum arose following the administration’s January announcement, the president held a press conference on February 10, 2012, to announce a second compromise. But this compromise also did not change any of the provisions of the August 2011 mandate, nor did it make any changes to the mandate’s narrow religious exemptions.
Instead, for nonexempt religious organizations the president made two promises. First, enforcement of the mandate would be delayed by a year so that they could get their houses in order to comply with the mandate. And second, the president promised that in a rule yet to be developed, insurance companies—not the religious employers themselves—would be forced to pay for the abortion-inducing drugs, sterilization, and contraception.
The problems with this proffered compromise are many. First, it is unlikely that insurance companies will offer these services for free; religious employers would still ultimately be paying for these services against their conscience, with the costs spread through higher insurance premiums for their employees. Although some argue that insurance companies would cover these services for free because it helps their bottom line, such an argument is tenuous at best—after all, if that were the case, insurance companies would have arguably already provided contraception for free. Moreover, the provision of these so-called free contraceptives still depends on the religious employer purchasing insurance for its employees. While they might not be paying for the drugs, they are still facilitating their use by employees. Religious organizations should not be forced to turn a blind eye to the inclusion of something in their insurance plan that violates their conscience.
Second, hundreds if not thousands of religious organizations have self-insured plans, in which the religious organization is the “insurance company.” The new compromise—if promulgated—offers them nothing. Ironically, many religious organizations chose self-insurance to avoid state contraception mandates.
Third, it is still unclear whether, even under the new proposal, nonexempt religious organizations (for-profit organizations, individuals, or nondenominational organizations) will have their religious liberty protected at all. The president’s plan only reinforces how the government’s policy intends to treat different religious groups and individuals differently, which is unconstitutional.
If an employer with moral objections to the HHS mandate is not covered by the administration’s compromise solution, the employer’s final alternative is to stop providing health-care benefits altogether. But this too places religious employers in an unacceptable double bind: either they must pay for contraception, sterilization, and abortion-inducing drugs, or they must stop providing their employees with health care and pay a stiff civil penalty. The first option forces religious employers to violate their moral convictions. The second option forces them to pay steep fines for exercising their religion and creates enormous hardships for their employees, some of whom have very limited means to purchase health insurance on their own. And the burden does not end there. Without employer health plans, many religious institutions would find themselves at a serious competitive disadvantage vis-à-vis other employers. Some religious institutions could find that without a group health plan, they could not attract sufficient staff and would be forced to close their operations altogether.
The fines imposed on religious employers that refuse to violate their consciences are significant. For example, a charitable organization with 100 employees will have to pay the federal government $140,000 per year for the “privilege” of not underwriting medical services it believes are immoral.9
Given these coercive burdens on the religious freedom of organizations and individuals that hold religious beliefs against contraception and/or abortion, the Becket Fund for Religious Liberty has brought several lawsuits. In response the Obama Administration has asked the courts to dismiss the cases based on the announcement of a promise to possibly change the mandate in the future.10
Government Funds a Factor
Proponents of the mandate argue that religious groups must provide these services—whatever their religious convictions—because they receive federal funding. It would be one thing if the mandate required religious organizations to choose between their convictions and federal funding. But this mandate is much worse: It applies with full force to every religious school, hospital, and soup kitchen, even if every single dollar of funding comes from private donations. It is simply a red herring to say that the mandate is somehow tied to the receipt of federal funding.
Even in cases in which the religious organization opposing the mandate is receiving federal funds, it is not true that these organizations are required to act in contravention of their consciences. Religious organizations regularly partner with the government in projects that serve the public—projects that in many cases would not succeed but for the help of these organizations. A diverse society should welcome contributions from all people—there is a strong need to serve the poor and others in need, and the government should not be in the business of turning down help when it disagrees with someone’s religious beliefs.11
A robust exemption from the HHS mandate would be a workable way for the federal government to advance both its interest in women’s health and its commitment to respecting the legitimate autonomy and convictions of religious institutions.
In particular, expanding the existing “religious employer” exemption into a “religious institution” exemption would eliminate the conflict entirely. Specifically, the exemption should be expanded to include nonprofit charitable religious institutions other than churches and religious orders. It should also exempt nonprofit and for-profit institutions that have religious leadership and identity, but that do not necessarily hire, teach, or serve predominantly people of their own faith tradition. In addition, the exemption should be expanded to cover individuals and nondenominational organizations as well as student health plans to accommodate religious colleges and universities.
1 The Affordable Care Act is actually two laws: The Patient Protection and Affordable Care Act, Public Law 111-114 (Mar. 23, 2010), and the Health Care and Education Reconciliation Act, Public Law 111-152 (Mar. 30, 2010).
2 42 U.S.C. § 300gg-13(a) (4).
3 In developing its guidelines, IOM invited a select number of groups to make presentations on the preventive care that should be mandated by all health plans. These were IOM, the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, National Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of America, and Sara Rosenbaum. No religious groups or other groups that oppose government-mandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters.
4 Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 2011).
5 Until now, federal policy has generally protected the conscience rights of religious institutions and individuals in the health-care sector. For example, for 25 years Congress has protected religious institutions from discrimination (based on their adherence to natural family planning) in foreign aid grant applications. For 12 years Congress has both exempted religious health plans from the contraception mandate in the Federal Employees’ Health Benefit Program and protected individuals covered under other health plans from discrimination based on their refusal to dispense contraception because of religious belief.
The HHS mandate is not only unprecedented in federal law, but also broader in scope and narrower in its exemption than all of the 28 states’ comparable laws. Almost half the states do not have a state contraception mandate at all, so there is no need for an exemption. Of the states that have some sort of state contraception mandate (all less sweeping than the federal one here), 19 provide an exemption. Of those 19 states without an exemption, only three (California, New York, and Oregon) define the exemption nearly as narrowly as the federal one, although the federal exemption is still worse because of the regulation’s discretionary language that the government “may” grant an exemption. Moreover, religious organizations in states with a mandate—even those where there is no express exemption—may opt out by simply self-insuring, dropping prescription drug coverage, or offering ERISA plans. The federal mandate permits none of these alternatives, and therefore is less protective of religious liberty than any of the states’ policies.
6 76 Federal Register 46623 (Aug. 3, 2011).
7 76 Federal Register 46626 (Aug. 3, 2011).
8 The only other exemption available under the ACA is for “grandfathered” plans. However, here too the law is terribly misleading. Under the new regulations, any one of a number of changes, even if immaterial, will cause a plan to lose its grandfathered status. Thus, although President Obama promised throughout the health-reform debate that “if you like your health plan, you can keep it,” religious organizations will soon be forced to abandon health plans that reflect their deepest convictions unless they: (1) stopped modifying their health-care plans nearly a year and a half before the HHS mandate was announced; and (2) henceforth avoid any triggering condition. These conditions, of course, may have already been violated, will become increasingly difficult to meet, and in any case are unacceptable.
9 See National Federation of Independent Business, “The Free Rider Provision: A One-Page Primer,” available online at http://www.nfib.com/advocacy/item/cmsid/51820.
10 The lawsuits, each of which make the same claims, are on behalf of (1) Belmont Abbey College, a Catholic liberal arts college founded by Benedictine monks; (2) Colorado Christian University, an interdenominational Christian college; (3) Eternal Word Television Network (EWTN), a television network that serves to spread Catholic teachings; and (4) Ave Maria University, a Catholic university dedicated to transmitting authentic Catholic values to students.
11 The White House Office of Faith-based and Neighborhood Partnerships has recognized that, with the exception of a few restrictions, faith-based organizations are eligible to participate in federally administered social service programs to the same degree as any other group.