Despite assurances from the Obama administration that the finalized
version of the contraception mandate accounts for freedom of conscience,
some religious liberty advocates are still concerned.
“The final rule,” explained Eric Rassbach, deputy general counsel for
the Becket Fund for Religious Liberty, “is not very different from the
inadequate rule that was proposed back in February.”
While the final rule “tinkered with some of the mechanisms” regarding
the mandate’s implementation, Rassbach said in a June 28 teleconference,
it did not address “the mandate’s fundamental religious freedom
questions.”
The Becket Fund is a law firm specializing in religious freedom
litigation, and is representing numerous plaintiffs who have filed suit
against the contraception mandate.
Issued under the Affordable Care Act, the mandate requires employers to
offer health insurance plans that include contraception, sterilizations
and some drugs that can cause early abortions.
More than 200 plaintiffs
have filed lawsuits challenging mandate, arguing that it violates their
right to religious freedom by forcing them to violate their consciences.
In response to the widespread objections, the Obama administration
announced that it would modify the mandate to account for the religious
liberty of objecting employers.
During the months that followed, the
admiration took multiple steps to make changes to the mandate, which was
finalized on June 28.
The final version of the regulation offers an exemption to religious
employers that fall under Internal Revenue Code, Section
6033(a)(3)(A)(i) or (iii), which “refers to churches, their integrated
auxiliaries, and conventions or associations of churches, as well as to
the exclusively religious activities of any religious order.”
The administration has said that this “would primarily include churches,
other houses of worship, and their affiliated organizations.”
Religious groups such as hospitals, schools and charitable agencies that
object to the mandate but are not affiliated with houses of worship may
not qualify for the exemption.
Instead, they are offered an
“accommodation” under which their insurance issuers will directly
“provide payments for contraceptive services” purchased by their
employees.
Self-insured employers will go through a similar process with a third
party administrator providing or arranging for the payments.
Insurance issuers must ensure that they are not using money paid by the
employers to fund the contraception and related products.
According to
the administration, the insurance companies can pay for these products
with no reimbursement because funding contraception is “cost-neutral”
for them, due to the reduced pregnancy costs and the health benefits
that result from contraceptive use.
Critics, however, have warned that the products will not be cost-neutral
and that the insurance companies may end up funding them through
increased premiums charged to the objecting employers.
Rassbach stated that the final rule still contains several threats to
religious liberty. He explained that non-profit organizations must still
act as “gatekeepers” who facilitate the controversial products, since
their insurance plans are necessary to trigger the contraceptive
payments from the insurance companies.
He added that religious owners of for-profit businesses are given no
relief from the mandate at all. They are required to provide the
coverage, even if they object, and could face potentially crippling
fines if they refuse.
“I don’t buy the government’s attempt to discriminate between a
non-profit and a for-profit,” he said. “They’re trying to turn it into a
status protection, rather than a protection of religious exercise.”
“The easy way to resolve this would have been to exempt sincere
religious employers completely, as the Constitution requires,” he
argued. “Instead this issue will have to be decided in court.”
Brian Walsh, executive director of the American Religious Freedom
Program at the Ethics and Public Policy Center, also voiced concerns
over the finalized regulation.
“The administration continues to refuse to include in its mandate the
sort of robust exemptions that have been understood since the founding
of this nation to be necessary to protect religious liberty,” he told
CNA.
Cardinal Timothy M. Dolan of New York, president of the U.S. bishops’
conference, explained in a statement shortly after the finalized mandate
was released that the 110-page regulation is “complex” and will require
“careful analysis” by the bishops before a response can be issued.
Cardinal Dolan had previously stressed the importance of religious
liberty for all people, including owners of for-profit businesses.
“In obedience to our Judeo-Christian heritage, we have consistently
taught our people to live their lives during the week to reflect the
same beliefs that they proclaim on the Sabbath,” he said in a February
analysis. “We cannot now abandon them to be forced to violate their
morally well-informed consciences.”
Lawyers for the U.S. Conference of Catholic Bishops reaffirmed this
point in March, stating in a document that “(t)he identity of the person
or group having the religious freedom objection should not matter; what
should matter instead is whether the person or group faces government
coercion to violate conscience.”