On Friday, February 1, the U.S. Dept. of Health and Human Services released a revision of its controversial rule concerning employer sponsored health insurance coverage for contraceptives and abortion inducing drugs. As with the “compromise” of last February, it appears on review to a variety of commentators, including the non-partisan The Hill, and the Becket Fund for Religious Liberty, which has been deeply involved in litigation fighting the mandate, that little substantial has been conceded. While the Administration has always presented the mandate as accommodating religious concerns and providing needed exemptions, the exemptions have been exceedingly narrow, and concessions to protests from religious organizations and individuals affected have been made only after intense pressure, and generally regarded as insubstantial.
Full exemption from providing coverage from contraceptives and abortion inducing drugs (and the protesting religious public has had to emphasize that abortion inducing drugs are included in the mandate) has been available only to narrowly defined religious organizations (mainly houses of worship, serving only adherents of their particular religion). To this original exemption, partial exemption was given to non-profit religious organizations such as hospitals and educational institutions in the first revision of the rule in early 2012. This partial protection involved exemption from directly providing contraceptive/abortifacient coverage in the objecting organization’s health plan, but requiring such coverage to be indirectly funded through a rider that the insurance provider made available. Money to cover the contraceptive/abortifacient goods in these riders would ultimately come from the insurance providers funded by the objecting organization. This was especially problematic for self-insured plans, where money for benefits come from the same plan. For-profit firms with religious objections had no exemption.
Basically the new revision alters the earlier “compromise” in making indirect employer coverage more indirect. HHS claimed in a message to LifeNews that the new “compromise” would give the separate coverage “at no cost to the religious organization.” Politico reported that costs for the separate coverage would be paid for through fees insurance providers pay for the right to participate in federal health exchanges. But it remains the case that money to pay for goods for which the religious organization objects comes from the insurance provider, which is funded in part by the objecting organization. Where the provider has many clients, this amount may be negligible, but if there are few clients, the objecting organizations still are substantially paying for objectionable coverage. The Becket Fund, noted above, stated that a burden on religious liberty still remains for self-insured plans. And for-profit objecting organizations, such as Hobby Lobby, continue to have no exemption from the mandate.
Religious freedom has been badly buffeted in recent years, with the Supreme Court discounting constitutionally based religious exemptions more than twenty years ago in its Smith decision (1990), Congress reinstating liberty of conscience in 1993 (through the Religious Freedom Restoration Act), having the act declared unconstitutional (1997), and then reinstated by the Supreme Court with respect to federal law (2006). So the RFRA’s standard of “burdening” religious liberty only by a compelling state interest applied in the least restrictive manner remains to be met. Contraceptives and abortion inducing drugs are readily available in our society; it is hard to see how the HHS mandate meets the RFRA standard, still requiring as it does for-profit religious employers to pay directly for objectionable goods, and non-profit religious employers to pay for them, however indirectly. The Christian public and the general public should not be deceived, but continue to recognize and oppose the mandate for what it is, a major, and apparently well considered, attack on religious freedom.