Following scores of lawsuits filed against the Department of Health and Human Services (HHS) over its mandate requiring employers to provide abortion-causing contraceptives to employees, the Obama administration has offered another proposed compromise on February 1 that would supposedly allow religious non-profits to opt out of the oppressive rule. But conservative and Christian opponents of the mandate said the change has major flaws, not the least of which is that it does not exempt Christian owners of private businesses from what they feel are immoral requirements.
Rolled out over a year ago as part of Obama's socialist healthcare act, the mandate was originally set to exempt only churches from forced abortifacient and contraceptive distribution. But as a steadily increasing number of faith-based universities, hospitals, foundations, and other religious non-profits — along with private businesses owned by Christians — have filed suit to stop enforcement of the mandate, citing their moral opposition to abortion, the Obama administration has been forced to rethink its strategy.
That led to the administration's announcement February 1 proposing a change to the mandate, allowing nonprofit religious organizations to join churches on the list of exempt entities. The White House said the change was meant to balance Obama's insistence that employers provide birth control to their employees with the objections “religious employers” have to being forced to subsidize something they consider morally wrong. “He's been very clear about what he believes are two compelling interests,” said White House press secretary Jay Carney of the president's motive: “which is the necessity of and the appropriateness of providing preventive services to women across the country, including contraception, and of making sure that we are mindful of religious liberty.”
The New York Times explained that under the complex set of proposed changes, “churches and nonprofit religious organizations that object to providing birth control coverage on religious grounds would not have to pay for it. Female employees could get free contraceptive coverage through a separate plan that would be provided by a health insurer. Institutions objecting to the coverage would not pay for the contraceptives.” The Times noted that insurance companies would end up bearing the cost of the scheme, “with the possibility of recouping the costs through lower health care expenses resulting in part from fewer births.”
Critics said the change is not unlike the “compromise” the Obama administration offered a year ago as religious institutions began filing lawsuits against the mandate. In a half-baked attempt at sleight of hand, the White House announced that under that first revised rule, religious institutions would not be required to offer free contraceptives to women employees as previously mandated. Instead, the requirement would be totally shifted to their insurance providers. But critics pointed out that the religious employers would still end up paying for the abortifacient drugs, since the insurance companies would merely pass on the cost of the drugs they are forced to pay for to the organizations they are insuring.
In announcing the newest “change” HHS Secretary Kathleen Sebelius declared that “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”. She promised that her department would “continue to work with faith-based organizations, women's organizations, insurers, and others to achieve these goals.”
Criticism of the latest plan came quickly, with the strongest opposition emanating from pro-family and conservative legal advocacy groups dissatisfied with the administration's refusal to budge on conscience protections for private companies whose Christian owners say the mandate forces them either to violate their convictions and offer abortion-causing drugs to their employees, or face millions of dollars in fines if they refuse.
In December the U.S. Supreme Court refused a request by one of those businesses, Hobby Lobby, for an emergency injunction to block enforcement of the mandate. Hobby Lobby's owner, David Green, has vowed to defy the mandate, even though his company, along with another family owned business, reportedly face $1.3 million in fines per day if they do not offer the abortion-causing drugs to their nearly 14,000 employees.
Kyle Duncan of the Becket Fund for Religious Liberty, which is representing Hobby Lobby, as well as Wheaton College and other religious groups and companies, expressed his disappointment in the Obama administration's latest mandate change. “The administration obviously realizes that the HHS mandate puts constitutional rights at risk,” said Duncan. “There would have been an easy way to resolve this — expanding the exemption — but the proposed rule expressly rejects that option.”
He added that the latest compromise “gives no concrete guidance to self-insured religious organizations like Wheaton College. Given that the 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. We remain committed to protecting religious liberty until the administration recognizes the conscience rights of all Americans.”
Matt Bowman of Alliance Defending Freedom, another conservative legal group representing several Christian non-profits and businesses in suits against the mandate, said the federal government “has no business putting religious freedom on the negotiating table, or picking and choosing who is allowed to exercise faith. 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.”
Marjorie Dannenfelser of the pro-life Susan B. Anthony List declared that “there must be no religious 'test' by the government as to who, and what type of entities, are entitled to a conscience. 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.”
Matt Smith of the Catholic Advocate said that the administration's proposed “compromise” amounted to “a veiled attempt by the Obama administration to silence us. The religious entities able to 'opt out' are still a minority of those affected. Our government should not be picking winners and losers when it comes to preserving our most cherished religious liberties.”
One of the strongest statements against the contraception mandate was offered by Father Frank Pavone of Priests for Life, who told the Obama administration that the abortion-promoting rule has no place in a civilized and free society. “We at Priests for Life remind the administration that religious liberty does not just belong to religious groups and individuals,” he said. “It belongs to all Americans. Objections to contraceptives and abortion-inducing drugs aren’t based just on dogmas and Bibles, but on adverse health consequences and the fact that human beings, no matter how small, should not be killed. We see only one acceptable change regarding the mandate: rescind it completely.”
Photo of President Barack Obama and Health and Human Services Secretary Kathleen Sebelius: AP Images