The Obama Administration’s mandate under the Obamacare statute that many religious employers provide health care coverage for contraception, abortifacients, and sterilization tramples upon their free exercise of religion. The Obama Administration should immediately exempt such religious employers from the contraception mandate. The Administration’s trampling upon religious liberty with the contraception mandate illustrates yet again the need to repeal the Obamacare statute.
What the Obamacare Statute Says
Section 2713 of the Public Health Service Act, enacted by the Patient Protection and Affordable Care Act (Public Law 111-148) (the “Obamacare” statute), provides that “A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— . . . (4) with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration . . . .”
Those HRSA guidelines currently provide for “All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.” Thus, the Obamacare statute mandates that employer group health plans cover all FDA-approved contraceptive methods, including contraception, sterilization procedures, and “emergency contraception” (as the FDA calls the Plan B, Plan B One-Step, Next Choice, and Ella “morning-after” pills).
Obama Administration Issues Regulations, Heritage Responds
The Obama Administration published its interim regulations implementing the contraception mandate in the Federal Register on August 3, 2011. On August 9, 2011, The Heritage Foundation filed comments with the Secretaries of Health and Human Services (HHS), Labor and the Treasury, to urge the Administration to expand the very narrow religious exemption under the interim rules — which focused principally on houses of worship and their ministers — to cover religious institutions, such as religious hospitals and charities, out of respect for the First Amendment freedom of religion.
On January 20, 2012, Secretary of HHS Kathleen Sebelius issued a statement that, instead of expanding the religious exemption to cover more religious institutions, she would give the institutions an additional year during which to comply with the contraception mandate. The Obama Administration decision to command religious institutions to violate their religious beliefs a year from now is no better than a command to violate their beliefs immediately.
How The Obamacare Statute Violates Religious Freedom
The Obamacare statute and implementing regulations command some religious institutions to do what their religion commands them not to do. To take one example, the Catechism of the Roman Catholic Church commands that “human life must be respected and protected absolutely from the moment of conception,” and the papal encyclical on human life that sets forth the Church’s beliefs regarding life prohibits “direct interruption of the generative process already begun,” “sterilization,” and “any action which either before, at the moment of, or after sexual intercourse, is specifically intended to prevent procreation . . . .”
The Obamacare statute’s mandate to a Catholic institution to provide health insurance coverage for its employees that covers contraceptives, abortifacients, and sterilization clashes directly with the Church’s mandate based on religious belief that the institution not do so. The authors of the Bill of Rights foresaw the emergence of such clashes and wisely provided in the First Amendment that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .”
The HHS and the other departments recognized, in the preamble to the interim rules, that “the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions,” and provided a narrow religious exemption. Such an exemption falls far short, however, of the protection the First Amendment contemplates; it covers houses of worship, but not, for example, religious hospitals or charities.
Exemption of religious institutions from the Obamacare contraception mandate does not involve a clash of the constitutional rights of a religious employer with the constitutional rights of its employees regarding contraception (as enunciated by the U.S. Supreme Court in Griswold v. Connecticut, 1965) or abortion (Roe v. Wade, 1973). Such an exemption in no way limits the freedom of employees of those religious institutions to obtain contraceptive services, to obtain insurance covering contraceptive services from a source other than their employer, or to seek employment with other than a religious employer.
What the Obama Administration Should Do
The Department of Health and Human Services should broadly exempt religious institutions in its final regulations implementing the Obamacare contraception mandate, pending repeal of that mandate as part of the Obamacare statute repeal. Such an exemption would allow the religious institutions both to adhere, as they must, to the tenets of their faiths and to provide group health care plans for their employees. Absent such an exemption, many religious institutions, following their faiths, will have no alternative but to stop making group health plans available to their employees and pay any fines for failure to do so.
Surely President Obama did not intend what he considers his signature legislative achievement to trample on freedom of religion and to result in the loss of group health care coverage for employees of religious institutions. This is, after all, the man who told us all in 2006 that “secularists are wrong when they ask believers to leave their religion at the door before entering into the public square.”
Mr. President, the problem is clear and your Cabinet has not fixed it. Please direct Secretary Sebelius to expand the religious institution exemption, now.