US Bishops Respond to Contraception Mandate Adjustments: Say Situation Is Now Worse

Reply to Rules Set for Non-Profit Religious Organizations and For-Profits

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The U.S. Conference of Catholic Bishops (USCCB) submitted comments October 8 to the U.S. Department of Health and Human Services (HHS) and two other federal agencies on the Obama administration’s latest version of “Rules on Coverage of Certain Preventive Services Under the Affordable Care Act,” commonly known as the HHS contraceptive mandate.

The Obama administration has released a series of modifications to the mandate, responding to the dozens of lawsuits leveled against it; these latest adjustments were the eighth to be made.

The Becket Fund for Religious Liberty tracks the progress of the lawsuits at their Web site.

The comments were submitted by Anthony Picarello, USCCB general counsel, and Michael Moses, associate general counsel.

The Administration issued these proposals and invited public comment in late August in response to the U.S. Supreme Court’s Hobby Lobby decision, which found that the existing mandate violates the religious freedom of some closely-held for-profit companies such as family-owned businesses under the Religious Freedom Restoration Act (RFRA).

The new proposals consist of “interim final rules” slightly modifying the government’s “accommodation” for nonprofit religious organizations not exempted from the mandate, and “proposed rules” on extending this accommodation to closely-held for-profit companies. The USCCB commented on both proposals.

Interim final rules

Regarding the interim final rules, Picarello and Moses wrote that “the mandate continues to substantially burden the religious liberty of stakeholders with religious objections to the mandated coverage. Because it does not further a compelling government interest by the means least restrictive of religious exercise, the mandate continues to violate the Religious Freedom Restoration Act.”

They noted that the interim final rules do not change the mandate itself, or its extremely narrow exemption, offered chiefly to churches but not to social service and other religious organizations.

“Religious organizations that fall on the non-exempt side of the religious gerrymander include those which contribute most visibly to the common good through the provision of health, educational, and social services,” they noted.

They added that the rules do not provide an exemption or even “accommodation” for “the vast majority of individual and institutional stakeholders with religious or moral objections to contraceptive coverage.”

They also noted that the interim final rules’ new alternative way for non-exempt religious groups to comply with the “accommodation” still forces employers to facilitate contraceptive coverage, by directly supplying the government with “all it needs” to authorize and require the employer’s insurer or third-party administrator to provide or arrange for the very payments to which the employer objects.

This comment letter is available online:

Rules for for-profits

In their comment on the proposed rules regarding for-profit companies, Picarello and Moses said the proposal actually “makes the current situation worse for closely-held for-profit organizations with religious objections to contraceptive coverage,” as such organizations are currently exempt under RFRA, as the U.S. Supreme Court recently held.

They noted that the rule still does nothing for other organizations or individuals with objections to such coverage.

This comment letter is also available online:

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