Final HHS mandate rule decried as 'more of the same'

The federal government says it accommodated religious liberty and conscience rights with the June 28 release of its final version of the Health and Human Services contraceptive mandate, but attorneys representing plaintiffs fighting the mandate say the government still infringes upon religious freedom.

“This is more of the same ... It still makes religious nonprofits act as gatekeepers to abortion and provides no protection to religious businesses,” Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty, said during a June 28 conference call with reporters.

“The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires. Instead this issue will have to be decided in court,” Rassbach said.

Final details

On June 28, the HHS released the final, 110-page version of its mandate that requires employers to cover — without deductibles or copays — all government-approved forms of birth control, sterilization and abortifacient drugs in employee health insurance plans.

The federal government said it took religious liberty concerns into consideration by having employees of churches and religious nonprofits enroll in separate individual policies — at no cost to the employer — that would only cover contraceptive services.

“Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other nonprofit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work,” said HHS Secretary Kathleen Sebelius in a prepared statement.

The final HHS mandate rule appears similar to the proposal the Obama administration unveiled in February before the last public commenting period, which generated about 392,000 comments, most of those critical of the government’s policy.

The final rule, the government said, expands the definition of “religious employer” and grants exemptions for religious nonprofits such as hospitals and universities.

Under the rule, a nonprofit religious organization will have to provide notice to its health insurer that it objects to contraception coverage. The insurer would then notify enrollees that it would be providing them separate, no-cost payments for contraceptive services.

For self-insured health plans, the nonprofit religious organization has to notify its third-party administrator, which then tells employees that it will be providing or arranging separate no-cost payments for contraceptive services.

The mandate was set to take effect Aug. 1, but the June 28 rule moves that date back to Jan. 1, 2014, for religious nonprofits in the “safe harbor” who are currently exempt from compliance.

Coming up short

The U.S. Conference of Catholic Bishops — which criticized the February proposal as being virtually unchanged from prior versions of the mandate — withheld immediate comment on the final rule, saying that it required time for analysis.

“We have received and started to review the 110-page final rule on the HHS mandate,” New York Cardinal Timothy Dolan, president of the USCCB, said June 28.

“We appreciate the extension of the effective date by five months, which is readily apparent in the rule,” Cardinal Dolan said. “The remainder of the rule is long and complex. It will require more careful analysis. We will provide a fuller statement when that analysis is complete.”

However, other organizations that have criticized the mandate — including the Catholic League for Religious and Civil Rights and the Alliance Defending Freedom, a public interest law firm — said the government’s rule is still unsatisfactory.

“Attempts to distance Catholic nonprofits from directly providing insurance coverage for these morally objectionable services are admirable, but we’ve been there before,” Bill Donohue, president of the Catholic League, said in prepared remarks.

“Five month ago, we were told that more in the way of accommodation was coming, and we applauded that gesture,” Donohue said. “But now we know the Obama administration has come up short.”

Gregory S. Baylor, senior counsel for Alliance Defending Freedom, which is representing 10 plaintiffs fighting the HHS mandate in court, said the final rule confirms that the Obama administration “insists on waging war on religious freedom.”

“It ignores the voices of numerous Americans who expressed concern about the mandate’s impact on for-profit, faith-based job creators,” Baylor said. “And it does nothing to alleviate the concerns of the nonprofit religious organizations we represent, who are still subject to the mandate.”

The Becket Fund, which represents eight plaintiffs fighting the mandate in court, said the government is still forcing nonprofit religious employers to act as gatekeepers to abortion and requiring self-insured religious groups to hire administrators who will pay for contraception and abortifacients.

“We’re essentially where we’ve been all along,” Rassbach said, adding that the government is using employers as the means to forcibly distribute contraceptives.

Rassbach said he anticipates additional lawsuits will be filed.

“It’s a fundamental conflict that will have to be addressed in court,” he said.

Hobby Lobby success

As of July 1, there were 61 cases in the federal court system representing more than 200 plaintiffs that include hospitals, universities, schools, dioceses and for-profit businesses.

Eighteen of the 30 nonprofit cases have been dismissed on procedural grounds while Geneva College in Pennsylvania was granted an injunction from having to comply with the mandate. The remaining nonprofit cases are in abeyance or waiting on procedural rulings.

The cases involving for-profit businesses have seen 22 businesses granted injunctive relief. In several of those cases, judges have said individuals who run their businesses with religious convictions have religious freedom rights at stake, which the government has countered by arguing that for-profit entities do not exercise religion as protected in the Constitution.

In one of the more high-profile, for-profit cases, the 10th Circuit Court of Appeals in Denver, Colo., on June 27 rescinded a lower court’s ruling that denied an injunction to Hobby Lobby, the largest private business to file suit against the HHS mandate.

The appeals court instructed the district court to take up the issue again, saying that Hobby Lobby had a “likelihood of success” in proving that the mandate violates its rights and is causing irreparable harm to the company.

“Sincerely religious persons could find a connection between the exercise of religion and the pursuit of profit,” the judges wrote. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?”

On June 28, the 10th Circuit Court of Appeals issued another ruling that prevented the federal government from enforcing the mandate against Hobby Lobby.

Currently, private companies are not allowed in the safe harbor, and they can be fined for noncompliance.

Hobby Lobby would have faced paying up to $1.3 million a day in fines, beginning July 1, for not complying with the mandate.

The U.S. District Court for the Western District of Oklahoma — where the Hobby Lobby lawsuit is now being heard — granted the company a temporary restraining order from the mandate.

“We are delighted that both the 10th Circuit and the district court have spared them from this unjust burden on their religious freedom,” said Kyle Duncan, general counsel of the Becket Fund.

The next court hearing in the Hobby Lobby case is scheduled for July 19 in Oklahoma City. 

Brian Fraga writes from Massachusetts.