Fate of HHS mandate could lie in Supreme Court

The U.S. Supreme Court may soon answer the question of whether the federal government can compel employers, especially private businesses, to pay for birth control, abortifacients and sterilization in their employee health insurance plans.

On Sept. 19, the federal government asked the Supreme Court to decide whether the owners of Hobby Lobby and Conestoga Wood Specialties Corp. can invoke religious convictions in refusing to comply with the U.S. Department of Health and Human Services’ mandate that employers provide, without co-payments or deductibles, all government-approved forms of birth control.

“The United States government is taking the remarkable position that private individuals lose their religious freedom when they make a living,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and the lead attorney on the Hobby Lobby case.

The government is appealing a 10th U.S. Circuit Court of Appeals’ decision in June that said the HHS mandate would violate the religious liberty of the Green family, which owns the Hobby Lobby craft store chain. A different appeals court ruled the other way on Conestoga Wood, a Pennsylvania cabinet maker owned by a Mennonite family.

The government’s appeal makes it likely that the Supreme Court will decide the issue in the term that began Oct. 7.

“We’re confident that the Supreme Court will reject the government’s extreme position and hold that religious liberty is for everyone — including people who run a business,” Duncan said.

Affordable Care Act

 The Affordable Care Act, passed in 2010, granted the authority to HHS to create the contraceptive mandate. The act was the central issue over which Republicans and Democrats shut down the federal government in early October.

The government may have been closed, but that did not stop the efforts of some lawmakers, bishops, attorneys and other parties from their efforts in fighting the mandate.

U.S. Rep. Marsha Blackburn, R-Tenn., proposed an amendment to the stopgap bill to keep the government running that would have delayed the contraceptive mandate for one year, but House Republicans dropped the measure.

Blackburn said her amendment was designed to protect people “from the radical HHS mandate which violates millions of Americans’ deeply held religious beliefs and it prevents taxpayers from going to insurance plans that include elective abortion coverage.” Speaking on the House floor, Blackburn said the health care act “was not ready for prime time.”

“It’s not good for the American people,” Blackburn said.

Covering abortion

On Sept. 30, the day before the health care exchanges went online, the Office of Personnel Management — the federal government’s personnel office — said members of Congress and staffers could buy health insurance plans that pay for abortions on the Washington, D.C., exchange. The OPM said it received 51,000 public comments in favor of people who work on Capitol Hill being able to obtain abortion services on the exchange.

However, OPM said the abortion coverage will have to be covered by individuals’ own contributions, because federal law prohibits federal funds from paying for abortion. Still, U.S. Rep. Chris Smith, R-N.J., told the Washington Times that the OPM’s approach violates a law he wrote in 1983 that prohibits OPM from paying to administer plans that cover abortion, except in cases of rape, incest or the mother’s life in danger.

Conscience protection

Lawmakers have recently introduced additional legislation in an attempt to strengthen religious freedoms.

U.S. Rep. Raul Labrador, R-Idaho, is the chief sponsor of the Marriage and Religious Freedom Act that would prevent the Internal Revenue Service from discriminating against religious institutions and nonprofit groups that don’t recognize same-sex marriage.

“Regardless of your ideology, we can all agree about the importance of religious liberty in America,” Labrador said.

Meanwhile, in a Sept. 26 letter, Cardinal Seán O’Malley of Boston, chair of the USCCB Committee on Pro-Life Activities, and Archbishop William E. Lori of Baltimore, chair of the bishops’ Ad Hoc Committee for Religious Liberty, called upon the House and Senate to implement the Health Care Conscience Rights Act into a continuing resolution to fund the government and the debt ceiling legislation.

“Protection for conscience rights in health care is of especially great importance to the Catholic Church, which daily contributes to the welfare of U.S. society through schools, social services, hospitals and assisted living facilities,” wrote the prelates.

The HHS mandate, they wrote, requires coverage of “drugs and devices that can act against a human life after fertilization, implicating our moral teaching on abortion as well as contraception.”

On June 28, the federal government issued its final version of the mandate, and claimed it had accommodated religious liberty and conscience rights 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.

The mandate was set to take effect Aug. 1, but the June 28 rule moves that date to Jan. 1, 2014, for religious nonprofits in the “safe harbor” who are currently exempt from compliance. For-profit businesses are not included in the safe harbor.

Sisters’ suit

The final rule did not satisfy religious liberty concerns. As of Oct. 4, there were 73 lawsuits filed in the federal courts representing more than 200 plaintiffs, including hospitals, universities, businesses, schools, dioceses and publishers, including Our Sunday Visitor.

On Sept. 24, the Little Sisters of the Poor — represented by the Becket Fund — filed a class action lawsuit in U.S. District Court in Colorado. The order operates 30 homes for the elderly in the United States. The Sisters’ homes employ more than 50 lay employees, who are covered under the Christian Brothers Employee Benefit Trust health plan.

Without injunctive relief, the Little Sisters would face millions of dollars in IRS fines. The Sisters have filed suit with Christian Brothers Services, Christian Brothers Employees Benefits Trust and a host of other religious organizations facing fines in the first class-action lawsuit against the mandate.

“Like all of the Little Sisters, I have vowed to God and the Roman Catholic Church that I will treat all life as valuable, and I have dedicated my life to that work,” said Sister Loraine Marie, the superior for one of the congregation’s three U.S. provinces. “We cannot violate our vows by participating in the government’s program to provide access to abortion inducing drugs.” 

Brian Fraga writes from Massachusetts.