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The National Catholic Bioethics Center
HHS Mandate Regulatory Updates Fail to Respect Religious Liberty
Wednesday, August 27, 2014 10:41:00 AM
© 2020 by The National Catholic Bioethics Center

HHS Mandate Regulatory Updates Fail to Respect Religious Liberty

August 27, 2014

On August 22, 2014, the Department of Health and Human Services announced
 interim final rulesregarding mandatory coverage of certain so-called preventive services for women, including contraceptive and abortifacient drugs and devices. The rules modify the existing “accommodation” designed for religious ministries such as Catholic charities and hospitals, which are referred to as “eligible organizations.”


Under the new rules, these organizations may adopt an alternative method of self-certification: they may directly notify HHS of any religious objections, identifying the insurance plan name and type, and naming their third party administrators and insurance issuers. With this information, HHS would direct the latter to provide employees of the organization with the insurance coverage to which the organization has objected.


On the same day, the Centers for Medicare & Medicaid Services announced proposed rules that would modify the definition of “eligible organization” to include “closely held for-profit organizations.”


The HHS interim final rules and CMS proposed rules come in response to the Supreme Court decision in Burwell v. Hobby Lobby, which upheld religious freedom by determining that a closely held for-profit employer—and potentially any for-profit employer—is protected under the bipartisan Religious Freedom Restoration Act of 1993 from being forced to include insurance coverage for practices to which it objects in any employer-sponsored health care insurance.


The National Catholic Bioethics Center regrets that the new rules fail to respect religious freedom and fail to address the underlying injustice in the HHS Mandate. The distinction between a “house of worship” and a mere “eligible organization” remains unchanged, discriminating between two classes of religious exercise: the former is considered worthy of a full exemption from the unjust mandate, while the latter is forced to participate in the government’s mechanism for providing coverage to which it objects. Monasteries may be exempt, but dioceses, hospitals, and universities that put their faith into public action must still be conscripted into a governmental process promoting evils that conflict with their faith and witness.


There also continues to be no provision for the conscience rights of persons and organizations whose objections are not connected with a particular religious belief, but who do not wish to be complicit in the physical, emotional, and spiritual harms of contraceptive drugs and devices, surgical sterilizations, and the destruction of unborn human beings.


Neither has the government abandoned its insistence that employers offer contraception, sterilization, and abortifacient coverage as a condition for providing health care insurance to employees at all. This is contrary to right reason, the natural law, and the interests of universal access to basic health care. It is startlingly similar to the injustice that Saint John Paul II decried as an exploitation of the developing world, and it deserves the same moral condemnation: 


Today not a few of the powerful of the earth...prefer to promote and impose by
whatever means 
a massive programme of birth control. Even the economic help
which they would be ready to give is unjustly made conditional on the acceptance
of an anti-birth policy....Aside from intentions, which can be varied and perhaps can
seem convincing at times, especially 
if presented in the name of solidarity, we are
in fact faced by an objective “conspiracy against life”...engaged in encouraging
and carrying out actual campaigns to make contraception, sterilization and abortion
widely available. Nor can it be denied 
that the mass media are often implicated in this
conspiracy, by lending credit to that culture which presents recourse to 
sterilization, abortion and even euthanasia as a mark of progress and a victory of
freedom, while depicting 
as enemies of freedom and progress those positions
which are unreservedly pro-life. 

(Evangelium vitae, nn. 16-17)


There is no doubt that the new rules require the involvement of religious ministries and objecting for-profit businesses in material cooperation with the evils of contraception, sterilization, and abortion.


The “notice” that these organizations may now provide in lieu of Form 700 requires them to provide the name and type of their insurance plan and the contact information for their third party administrators and insurance issuers, explicitly identifying for the government the entities that will carry out the provision of objectionable coverage in the employer’s stead. The new rules acknowledge that this “represents the minimum information necessary . . . to implement the policies in the July 2013 final regulations.” It is another way of saying that the government needs the employer to provide this information so it can make certain that employees receive the coverage to which the employer has just objected.


The root moral concerns remain the same, regardless of how many levels of intervening bureaucratic cushioning the administration attempts to create. Any employer who wishes to provide comprehensive, good quality, employer-sponsored health care coverage cannot do so without participating in the government’s scheme to provide employees with the very coverage to which the employer objects. Judge Pryor wrote about the role of Form 700 in Eternal Word Television Network v. Sebelius, but his words seem to apply equally well to the newly allowed alternative notice: “It is undeniable that the United States has compelled the Network to participate in the mandate scheme. . . To be sure, federal law requires contraceptive coverage whether or not the Network signs the form. But the problem in this appeal is that federal law compels the Network to act.”


With this eighth iteration of the regulations, the consistent and disturbing refusal of the administration to provide a full exemption to religious ministries—and to any employer with a religious or conscience objection—conveys a distinct lack of respect for religious liberty and conscience rights, and continues to insist on the attachment of unjust and harmful conditions to the provision of basic health care coverage.

The National Catholic Bioethics Center will submit its comments in support of religious liberty and conscience rights to the appropriate governmental bodies indicated in the respective rules, and strongly encourages all people of good will to do likewise. The HHS interim final rules regarding the accomodation are in effect as of August 27, 2014, the date of official publication in the Federal Register. Written comments must be received by October 27, 2014. The CMS proposed rulesregarding the definition of eligible organizations are open for written comment until October 21, 2014.