The Obama Administration new proposed rules that would soften their controversial contraceptives and aborfacient coverage mandate. “Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns,” said Health and Human Services Secretary Kathleen Sebelius. “We will continue to work with faith-based organizations, women’s organizations, insurers and others to achieve these goals.”
The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.
With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer. The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.
With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator. In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.
Insurers and third party administrators would work to ensure a seamless enrollment process. The proposed rules lay out how the costs of both the insurer and the third party administrator would be covered, without any charge to either the religious organization or the enrollees.
Additionally, the proposed rules simplify and clarify the definition of “religious employer” for purposes of the exemption from the contraceptive coverage requirement. These employers, primarily houses of worship, can exclude contraception coverage from their health plans for their employees.
The definition of what a “religious employer” has changed. The criteria a year ago said:
(1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a nonprofit organization described in section 6033(a)(1) and 6033(a)(3)(A)(i) or (iii) of the Code
They removed the first three elements and will now exempt nonprofits that are referred to in the Code as "churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”
It is obvious that this proposed rule still leave businesses operated by people of faith under the mandate. Companies like Hobby Lobby will still face heavy fines if they do not comply and provide contraceptive and aborfacient coverage for their employees. This omission led to a sharp reaction from pro-life and religious groups.
“Today’s proposed rule does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty who represents clients such as Hobby Lobby and Wheaton College. “The administration obviously realizes that the HHS mandate puts constitutional rights at risk. There would have been an easy way to resolve this—expanding the exemption—but the proposed rule expressly rejects that option.”
Duncan continued, “We are extremely disappointed with today’s announcement. HHS waited nearly a year and then gave us a proposed rule that still burdens religious liberty. It also gives no concrete guidance to self-insured religious organizations like Wheaton College. Given that today’s proposed rule was prompted in part by the D.C. Circuit’s order in the Wheaton College case, that is a remarkable and surprising omission.”
“Once again, President Obama’s so-called ‘compromise’ is unacceptable – religious and moral freedom is not up for negotiation,” said Marjorie Dannenfelser of Susan B. Anthony List. “There must be no religious ‘test’ by the government as to who, and what type of entities, are entitled to a conscience. We demand respect for non-religious entities such as the Susan B. Anthony List that recognize the taking of human life is the antithesis of health care. Government policy under our constitution, history and statutory law has recognized the right of citizens to be free from government compulsion of conscience on such fundamental matters. The only acceptable outcome is the complete repeal of the HHS mandate and the restoration of a thriving marketplace where Americans can choose health care coverage consistent with their beliefs.”
All Americans, not just those in church organizations, are guaranteed freedom of conscience in their daily lives and work. The administration’s narrow gesture does nothing to protect many faith-based employers or religious families from the unconstitutional abortion pill mandate. The government has no business putting religious freedom on the negotiating table, or picking and choosing who is allowed to exercise faith, “ said Matt Bowman, Senior Legal Counsel for Alliance Defending Freedom.
“The administration must immediately abandon the idea that it has the power to withhold or dispense our fundamental freedoms to whomever it chooses. The mandate is losing in court. The only acceptable solution is for the administration to obey the Constitution and its legal duty to protect religious freedom,” Bowman added.
“If this president is a so-called constitutional scholar-as his supporters in the media portray him-then his law school should be embarrassed. In 80 pages of legalese and gobbledygook, this administration fails to recognize the constitutionally protected freedom of conscience that all Americans-not just religious organizations as defined by the IRS-are guaranteed in their personal lives and in the workplace,” said Paul Rondeau of American Life League.
“The tragic lessons of history teach us that when one right can be infringed, all rights are at risk. The HHS mandates are losing in court. It is time for this administration to submit itself to the US Constitution, which it has sworn to uphold, and quit trying to hold the country’s conscience hostage to its own agenda,” Rondeau continued.
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