Cardinal Newman Society Responds to Latest Change in Contraception Mandate

‘the Obama administration continues to refuse exemption from the HHS Mandate to individual Americans, organizations and businesses for whom compliance with the HHS Mandate offends deeply held religious beliefs and moral principles’

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The following official statement was released this week by The Cardinal Newman Society in response to the changes to the Health and Human Services contraception mandate accommodation announced on Friday, August 22.

Statement of The Cardinal Newman Society – August 27, 2014

The Obama administration’s latest attempt to force morally objectionable employee benefits upon America’s religious organizations—including the most faithful Catholic schools and colleges—in no way diminishes the Cardinal Newman Society’s strenuous opposition to this extreme violation of religious freedom. We continue to depend on the courts to protect this freedom that is fundamental to all freedoms and cannot be justly violated by any government, no matter how zealous in its pursuit of other goals.

Clearly determined to avoid media scrutiny, the Obama administration fully revealed its latest action late in the afternoon on a quiet Friday in August. The Department of Health and Human Services (HHS) in two separate filings in the Federal Register announced the Department’s latest round of proposed and interim final rule changes dealing with its Contraceptive and Sterilization Mandate (hereafter “HHS Mandate”).  These proposed and interim final rules are the eighth attempt by the Administration to frustrate religious groups’ refusal to yield to the HHS Mandate, which requires insurance plans to provide―at no cost to the insured―sterilization procedures and contraceptives, including those that abort children already conceived. The changes were forewarned by the HHS shortly after the U.S. Supreme Court granted Wheaton College temporary injunctive relief from the enforcement of the HHS Mandate, which requires even religious institutions to conform despite deep moral objections.  This occurred on the heels of a major setback for the Administration at the High Court in Burwell v. Hobby Lobby earlier the same week.

The new interim final rule attempts to appease religious educators and organizations—and the new proposed rule attempts the same for closely held private companies protected by the Hobby Lobby ruling—on procedural matters while failing to address the most important objection: that the Obama administration continues to refuse exemption from the HHS Mandate to individual Americans, organizations and businesses for whom compliance with the HHS Mandate offends deeply held religious beliefs and moral principles.

This is particularly offensive when exemptions to the HHS Mandate—and even the Affordable Care Act (“ObamaCare”) itself—have been provided by the Administration for a wide array of American individuals, organizations and companies. Even Congress is exempt, as are several labor unions and other groups that generally have favorable ties to the Administration.  By contrast, the new proposed and interim final rules impact a much smaller population than those who are already exempted—a clear indication that the Obama administration is knowingly restricting the freedom of religious organizations, business owners, and other individuals who practice their faith in their daily lives and not only in worship.

As a Catholic nonprofit organization, The Cardinal Newman Society has joined with, and represented, many faithful Catholic schools and colleges—and worked with other faith-based organizations and coalitions—in opposing every attempt by the Obama administration to impose the HHS Mandate. We have responded to previously proposed rules with formal responses prepared by attorneys at the Alliance Defending Freedom.  In our latest response—submitted in April 2013 and accompanied by 22 Catholic colleges and higher education programs—The Cardinal Newman Society asked the Obama administration to exempt all organizations with:

…a religious or moral objection from being forced to provide, offer, pay for or in any way participate in a health insurance plan that covers or specifically triggers coverage of “contraceptives” (including abortifacients…), sterilization, and related education and counseling.  Religious freedom requires no less….

No other federal rule has so narrowly and discriminatorily defined what it means to exercise religious conscience, and no regulation has ever so directly violated plain statutory and constitutional religious freedoms.

The Cardinal Newman Society explained further:

The HHS Mandate directly burdens the beliefs of many who object to causing coverage of abortifacients, contraception, sterilization, or education and counseling regarding the same.  It requires them to facilitate coverage of objectionable items even though they have a religious belief against doing so.  This is the very definition of a burden on religious beliefs: the government mandating that people violate their beliefs.

Therefore, The Cardinal Newman Society has asked the Obama administration to do the following:

(1)  provide a blanket, non-discretionary exemption from the HHS Mandate for any employer, insurance company, payer, individual, or entity who in his or its own determination has any religious objection to providing, issuing, enrolling in, participating in, paying for or otherwise facilitating or cooperating in coverage of any required practice or of any required provision of information;

(2)  consistent with bipartisan federal health law going back nearly 40 years, provide equal and comprehensive conscience protections for moral convictions as well as religious beliefs;

(3)  omit all drugs that can cause the demise of conceived human embryos, including but not limited to “Ella,” from the scope of what the HHS Mandate requires for anyone; and

(4)  since pregnancy is not a disease, rescind the underlying Health Resources and Services Administration guideline, which defines abortifacients, contraception, sterilization, and related education and counseling as part of required preventive care.

Instead, the Administration’s new interim final rule does not expand the HHS Mandate’s exemptions, but it continues to offer an unacceptable “accommodation” to religious nonprofits that requires them to facilitate health insurance coverage for services that they believe to be gravely immoral.  The new proposed rule for private companies contemplates imposing the same “accommodation.”  The new trigger for the “accommodation” is in the form of a letter required to be filed with the HHS, stating the employer’s religious objection to the HHS Mandate. The HHS will then order the employer’s insurer—or the Department of Labor will order a third party administrator—to provide abortifacient, sterilization, and contraceptive
insurance coverage to employees at no cost to them.

Although the new interim final rule no longer requires a religious organization to explicitly authorize an insurer or third party administrator to provide the immoral coverage—as was required by the prior rule—the change merely engages in “window dressing” around the means by which a religious organization may facilitate coverage. Most importantly, the new proposal does not provide for exemption for religious objectors, which is the only acceptable condition for the protection of religious freedom.

But the rule also ignores what should be an obvious fact, that it is the religious employer who purchases and provides insurance benefits to its employees—not the federal government—and thereby facilitates any coverage that is thereby provided to employees. The trigger for the mandated abortifacient, sterilization, and contraceptive coverage is not the letter to HHS declaring a religious objection.  It is not the HHS Mandate itself that forces conditions upon the employee health insurance but makes no provision for it.  The trigger is the employer’s purchase of insurance benefits for its employees, without which there would be no immoral coverage provided through the insurer privately selected by the employer.  It is incomprehensible that the federal government could so directly intervene in a private commercial agreement between an employer and insurer, and—going far beyond the boundaries of regulation—impose insurance coverage as a service that the employer neither requests nor desires, but strongly opposes on religious and moral grounds.

The Obama administration has demonstrated its unwillingness to protect the religious freedom of organizations, companies and individuals with religious objections to the HHS Mandate; therefore, we must seek relief from the courts.  The Christian Brothers Employee Benefit Trust is challenging the HHS Mandate on behalf of The Cardinal Newman Society and other clients, including the Little Sisters of the Poor.  As reported by The Becket Fund for Religious Liberty, to date 319 organizations have filed suit against the Obama administration over the HHS Mandate, currently organized in 102 separate cases.  Of these lawsuits, 53 are brought by 126 nonprofit organizations, including 25 colleges, 15 Catholic dioceses, and 40 other religious charities.  Of the cases that have been heard, injunctions have been granted in 31 of the nonprofit cases.  The unprecedented number of legal challenges and the large number of federal court victories by both nonprofits and private companies reveals the intrinsic problems with the HHS Mandate.

Regarding the proposed rule for private companies, there is a 60-day comment period ending at 5:00 p.m. on October 21, 2014.  The interim final rule for religious nonprofits is effective immediately; nevertheless, there is a 60-day comment period also terminating on October 21. The Cardinal Newman Society and Catholic educators will again take the opportunity to respond formally to the Obama administration, and we encourage other faithful Americans to do the same.

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