The government continues to claim no religious freedom is threatened, even while religious leaders say otherwise
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.”