The ObamaCare Contraception Mandate

Most of the recent attention of the media has been focused on, the failed web site for enrollment in ObamaCare. But for those who value religious liberty the most important issue that remains unsettled is the so-called Contraception Mandate.

The Affordable Care Act, a.k.a. ObamaCare, is over 2,000 pages of government rules and an additional 20,000 pages of regulations that govern this new healthcare law. Amongst its many provisions is the requirement that all approved healthcare insurance plans provide “essential health benefits” that include many free preventive medicine features. The final list of these “essential health benefits” was determined by Health and Human Services (HHS) Department Secretary Kathleen Sebelius.

Secretary Sebelius released her list in 2012 that included a provision for sterilization procedures, contraceptives, and abortion-inducing drugs (abortifacients) like the “morning-after” pill (Plan B), and the “week-after” pill (Ella). This is referred to as the Contraception Mandate. This touched off a firestorm of controversy as religious groups objected to this blatant violation of religious liberty. Religious institutions and employers of strong religious convictions were being forced by the government to violate their religious beliefs in order to comply with the new healthcare law.

The “Accommodation”

The Catholic Church led the fight against this new provision of the law and many lawsuits were quickly filed against the government. In February 2013, the White House issued an “accommodation” they believed would satisfy the concerns of these religious groups yet still provide the insurance benefits they desired.

As part of the new initiative, groups that are insured – such as student health plans at religious colleges – would be required to let their insurer know that certain participants would like contraception coverage. The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies. Thus, the religious employer’s purchase of health insurance – required by law- would automatically trigger the free coverage of contraception.

This “accommodation” has been rejected by many religious-affiliated organizations including Priests for Life and Christian Medical Dental Association (CMDA). Frank Pavone, National Director of Priests for Life said, “We at Priests for Life remind the administration that religious liberty does not just belong to religious groups and individuals; it belongs to all Americans. We see only one acceptable change regarding the mandate; rescind it completely.”

CMDA CEO David Stevens, M.D. said, “This latest version of the contraceptives and sterilization mandate remains unacceptable. Since when does the government get to pick and choose which groups will get to enjoy First Amendment protections? The amended regulations give no conscience exemption to businesses run by people of faith including Hobby Lobby and Tyndale House. It gives no exemption to individuals having to buy insurance that pays for abortifacients like Ella.”

In an article published in The Weekly Standard entitled Not a Real Olive Branch, author Wesley J. Smith points out that in many cases even nuns will be insured for birth control. He states that the objecting organizations will remain complicit in furthering an activity their faith deems sinful – with no opt-out other than to break the law by not purchasing health insurance – and then suffer the penalty of the employer imposed fines. (Fines are $100/employee/day.)

However, as Smith explains, there is a larger issue at stake here:

“If the Obama administration can force the private sector to provide a free product to help the government circumvent a constitutionally protected freedom, what can it not do? Why not also one day mandate free, universal coverage of abortion? After all, the president and many of his supporters plainly would regard this as enlightened policy. For that matter, why should the ability to force the private sector to pay for favored social agendas be limited to healthcare. If this “compromise” sticks, all manner of power grabbers and social engineers will be rubbing their hands in eager anticipation of all the “good” they can do.”

Lawsuits in Progress

The lawsuits in progress can be divided into two main groups; for-profit companies and non-profit companies. Both groups have had mixed results in the lower courts, winning some battles and losing others. Both have reached the attention of the United States Supreme Court in recent days.

Two for-profit companies, Hobby Lobby Stores and Conestoga Wood Specialties, have recently been approved for review by The Supreme Court. They have been consolidated by the Supreme Court and will be known as Sebelius v. Hobby Lobby. Oral arguments are likely to be heard in March and a decision is expected by June. These are but two of 87 lawsuits that have been filed pursuant to the mandate according to the Becket Fund for Religious Liberty.

Both companies are operated by owners with strong religious beliefs that include moral objections to abortifacients. Their lawsuits charge that the mandate infringes upon these beliefs and violates their rights as guaranteed by the First Amendment of the Constitution and the Religious Freedom Restoration Act (RFRA) of 1993 by forcing them to pay for employee health insurance that covers such drugs. The RFRA was passed by a voice vote in the House and 97 to 3 in the Senate, then signed into law by Democratic President Bill Clinton.

Many on the left have tried to frame this debate as an attempt to deny women contraceptives. Nothing could be further from the truth. Writing in The American Spectator, David Catron explains:

“These suits have nothing to do with the proposition that corporations are people. Nor do they concern any attempt to force religion on employees or deny women basic contraception coverage. This litigation is about something much larger: whether the government can issue an arbitrary bureaucratic decree that negates a fundamental constitutional right as well as an act of Congress. And no matter how many phony “accommodations” the White House might make, that is the upshot of the contraception mandate.”

The Tenth Circuit Court of Appeals agreed with the arguments of Hobby Lobby and came down strongly on the side of religious liberty, thus forcing the government to appeal to the Supreme Court. Conestoga Wood Specialties did not fare so well. A three judge panel in the Third Circuit Court of Appeals ruled 2-1 in favor of the government that “for-profit, secular corporations cannot engage in religious exercise”, regardless of the beliefs of their owners. The dissenting Judge Kent Jordan wrote, “The government takes us down a rabbit hole where religious rights are determined by the tax code.” Thus, Conestoga appealed to the Supreme Court.

What are the chances of success for these companies?

UCLA law professor Eugene Volokh writes, “Hobby Lobby likely has a good case as to the claim that the contraception mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something. . . that Hobby Lobby ‘s owners believe is religiously forbidden.” Richard W. Garnett, professor of law at the University of Notre Dame, agrees. In a recent column for The Los Angeles Times he reminded progressive readers that it was President Bill Clinton, hardly a right-wing extremist, who signed the RFRA into law. “What Clinton said when he signed the act into law is worth remembering today: ‘Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions.’”

            Further encouragement comes from, of all places, The Huffington Post, another bastion of liberal opinion. Feisal G. Mohamed of the University of Illinois writes, “Under current case law, it is almost certain that a closely held corporation found sincerely to claim freedom of religious expression would enjoy some kind of First Amendment protection.”

Non-profit companies and institutions also recently received some encouragement, even from liberal Supreme Court Justice Sonia Sotomayor. She issued a temporary injunction on December 31st halting enforcement of the Contraception Mandate on behalf of The Little Sisters of the Poor, a Roman Catholic institution run by nuns. The Becket Fund for Religious Liberty filed a lawsuit on their behalf in Colorado federal court. Justice Sotomayor has jurisdiction for that court.

Today the Justice Department responded to the injunction saying The Little Sisters of the Poor case “is not about the availability or adequacy of a religious accommodation”. They continue to assert that these Roman Catholic women, who serve the elderly poor, are not suffering any injury since they can be exempted from the contraception mandate by simply signing a statement indicating its objection. However, they insist upon this statement, which in effect grants permission for the insurance company to provide the offensive abortifacient treatments to their employees. The nuns believe this “accommodation” does not change their moral dilemma.

Matt Staver of Liberty Counsel responded with this statement; “President Obama has never told the truth about ObamaCare in general or the abortion mandate in particular. Little Sisters of the Poor cannot simply sign a form to alleviate the violation of its religious conviction. Signing a form noting its objection is a shell game. While the Little Sisters of the Poor may not have to directly pay for abortion, the religious group still has to indirectly pay for abortion through its insurance administrator. The fact that the group is being forced to provide the opportunity for an employee to kill a child is where the violation of religious freedom occurs, no matter who pays for the murder. The White House can cloak the fundamental issue with bureaucratic forms and legalese, but the truth is people who own or run religious organizations, be it for profit or nonprofit, should not be forced to be complicit with the murder of innocent children.”

As of this writing, the Supreme Court has not yet agreed to hear arguments regarding a non-profit institution such as Little Sisters of the Poor. But the temporary injunction of Justice Sotomayor makes it more likely the court will be open to such an appeal. It is encouraging that Justice Sotomayor, a liberal appointed by President Obama, issued this injunction for it suggests her sympathies are with the nuns.

Another liberal judge, Justice Ruth Bader Ginsburg has already gone on record against this provision of the law. She has written, “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, interfered with the free exercise of religion or infringed on a liberty interest protected by the Due Process Clause.”

If Justice Ginsburg, and possibly Justice Sotomayor, votes against the Contraceptive Mandate, and the same four conservative judges who voted against the Individual Mandate support them, these judges will have a majority opinion. This is very encouraging news for all those Americans who value their religious freedom. 

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