HHS Mandate 'Opt-Out' Still Encroaches on Individual Freedom of Conscience

The Obama administration announced Friday new guidelines for allowing religious-affiliated schools, hospitals, and charities to opt out of the HHS mandate, a feature of Obamacare that requires most employers to provide free contraception, abortifacients, and sterilization procedures to employees through health insurance plans. 

The new proposals would exempt group health plans of “religious employers” from being forced to pay for contraceptive coverage, but defines a “religious employer” as those that:

1. Have the inculcation of religious values as its purpose;
2. Primarily employ persons who share its religious tenets; and
3. Primarily serve persons who share its religious tenets.

The proposals further define a “religious employer” for the purposes of the exemption as one that meets the standard of the Internal Revenue Code. Thus, “religious employers” would include churches and other houses of worship and their affiliated organizations, but not individuals or individual businesses that claim a conscience objection to the law as mandated by the federal government.

The new plan intends to create separate health insurance policies for contraception coverage for employees of certain religious organizations that would be funded by insurance companies.

The administration said that, in the case of employers who self-insure, the policies would be funded by fees on insurance policies sold to participants in a new federally run health-insurance exchange starting in 2014. 

It appears the administration’s hope is that religious-affiliated groups will feel in accord with their professed beliefs if they, themselves, are not directly paying for products and services that are against faith tenets. However, the government will still insist that these products and services be provided for through a federal “exchange.”

The proposed rules would not satisfy businesses such as Hobby Lobby, which has sued the administration over the mandate; the company is not “technically” a religious employer, even though the owners of the business have objected to the mandate on religious and moral grounds.

In response to Friday’s announcement, Cardinal Timothy Dolan, president of the United States Conference of Catholic Bishops (USCCB), issued the following statement:

Today, the Administration issued proposed regulations regarding the HHS mandate. We welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later.

The pro-life Susan B. Anthony List denounced the new proposals, stating they do not go far enough. President Marjorie Dannenfeiser released the following statement:

Once again, President Obama’s so-called “compromise” is unacceptable – religious and moral freedom is not up for negotiation. There must be no religious “test” by the government as to who, and what type of entities, are entitled to a conscience. We demand respect for non-religious entities such as the Susan B. Anthony List that recognize the taking of human life is the antithesis of health care. Government policy under our constitution, history and statutory law has recognized the right of citizens to be free from government compulsion of conscience on such fundamental matters. The only acceptable outcome is the complete repeal of the HHS mandate and the restoration of a thriving marketplace where Americans can choose health care coverage consistent with their beliefs.

Currently, there are 44 cases with over 130 plaintiffs against the Obama administration’s HHS mandate.

Kyle Duncan, General Counsel of The Becket Fund for Religious Liberty, which represents many of the plaintiffs in the suits against the Obama administration, said, “Today’s proposed rule does nothing to protect the religious liberty of millions of Americans. The rights of family businesses like Hobby Lobby are still being violated.” Duncan added:

We are extremely disappointed with today’s announcement. HHS waited nearly a year and then gave us a proposed rule that still burdens religious liberty. It also gives no concrete guidance to self-insured religious organizations like Wheaton College. Given that today’s proposed rule was prompted in part by the D.C. Circuit’s order in the Wheaton College case, that is a remarkable and surprising omission. We remain committed to protecting religious liberty until the Administration recognizes the conscience rights of all Americans.