As the Supreme Court prepares to weigh in on the fight over contraception and conscience in Obamacare, it’s worth recalling that four years ago President Barack Obama promised elective abortion wouldn’t be part of the mix. Now it is, in several ways.
In March 2010, when congressional passage of the Affordable Care Act appeared to depend on a handful of pro-life House Democrats, the president bought their support with an executive order pledging to keep elective abortion out of the program.
Pro-life skeptics said the order couldn’t be counted on as a firewall against abortion. They were right. Four years later, the issue isn’t whether Obamacare will include elective abortion but to what extent and at whose expense, and whether even groups with conscientious objections will have to fall in line or suffer stiff penalties.
As early as 2012, former Michigan congressman Bart Stupak, who’d led the little band of House Democrats in their negotiations with the White House, said he was “perplexed and disappointed” at the violation of the executive order — and also, he added, of “statutory law” — that had already occurred.
Stupak, who didn’t seek reelection in 2010, was speaking of the so-called HHS Mandate — the Health and Human Services Department’s Obamacare rule that obliges even some church-related institutions to provide employee health insurance covering abortifacient drugs, contraceptives and sterilization.
The mandate, announced by HHS Secretary Kathleen Sebelius in August 2011, treats contraception as preventive medicine. It has been modified since then but not in ways that satisfy critics, who include the U.S. bishops and other Catholic and non-Catholic religious groups.
Supporters of Obamacare and the media commonly lump together as “contraception” the various things the mandate covers — contraceptives properly so called, sterilization and abortifacient drugs. The drugs work, at least sometimes, by preventing the implantation of the embryo in the womb, a form of early abortion.
Since Sebelius first announced it, the mandate has drawn a storm of protest from religious bodies as well as some proprietors of private for-profit enterprises who object on religious grounds. More than 90 lawsuits involving some 300 plaintiffs have been brought against the rule, with lower courts more often than not deciding in the plaintiffs’ favor. (Our Sunday Visitor is among these.)
The Supreme Court has so far accepted two cases in which owners of private businesses cite religious liberty as their basis for challenging the mandate. The cases will be argued next March, with the court expected to hand down its decision in June.
One case, Sebelius v. Hobby Lobby Stores, Inc., involves a chain of arts-and-crafts stores with over 15,000 employees whose owner says the business operates on Bible principles. The other case, Conestoga Wood Specialties v. Sebelius, concerns a Mennonite-owned company that makes wood cabinets. A lower court ruled in favor of Hobby Lobby while the lower court in the second case decided against Conestoga.
Now religious institutions joined those petitioning the Supreme Court for redress. On New Year’s Eve, the Little Sisters of the Poor in Denver and other church groups who participate in a health care plan called the Christian Brothers Employee Benefit Trust applied for a stay of a lower court order to comply with the mandate.
Justice Sonia Sotomayor issued the stay and directed the Obama administration to file briefs. The government says the Little Sisters could be exempted from the mandate by signing a form saying they have religious objections and making the insurer liable for the cost of contraceptive coverage. The sisters say that would make them complicit in “the government’s system to distribute and subsidize contraception.”
The Little Sisters of the Poor operate nursing homes for elderly poor people in the United States and other countries. The order’s Denver branch has a home for 69 residents and faces annual fines of $2.5 million, against an operating budget of $6 million, if it refuses to carry out the mandate.
As this is written, there is no way of telling how this particular case will turn out. Almost certainly, though, it or some other case involving a religious group will soon come before the full Supreme Court.
One that has gotten more attention than most because of the plaintiff’s prominence involves the University of Notre Dame. After a panel of the 7th Circuit U.S. Court of Appeals, also on New Year’s Eve, refused the school’s request for a stay of the mandate’s penalties, a spokesman said it would accept the Obama administration’s “accommodation” and turn over paying for contraception to its insurance carrier while continuing its fight in the courts.
In a letter to President Obama shortly before the latest developments, Archbishop Joseph E. Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, urged that, pending the outcome of the current struggle in the courts, religious groups be temporarily exempted from fines for not obeying the mandate.
Noting that the administration had granted exemptions delaying the start of Obamacare to a number of other groups, Archbishop Kurtz said the one group “left out in the cold” was those who object in conscience.
Other abortion coverage
While the spotlight up to now has been on resistance to the HHS mandate, by no means is it elective abortion’s only point of entry into Obamacare.
Another sore point is the difficulty in determining whether insurance plans on the new federal and state exchanges cover abortion. Those who have tried to get an answer say it’s often nearly impossible in places like New York and Minnesota.
In some states, moreover, all plans cover elective abortion, although federal law supposedly requires the availability of at least one plan that doesn’t. Rhode Island and Connecticut are two such states, and there appear to be others.
People who without knowing it pay a premium that includes abortion coverage they don’t want are unavoidably helping to pay for someone else’s abortion. Remedial legislation has been introduced in Congress but is given little chance of passage.
Pro-lifers also complain that Planned Parenthood, the nation’s largest abortion provider, is one of the community groups the federal and state governments have contracted with to recruit customers for the exchanges and help them navigate there. Grants in the hundreds of thousands of dollars have gone to Planned Parenthood affiliates in Iowa, Montana, New Hampshire, California, Montana and the District of Columbia.
Speaking last April to a Planned Parenthood conference, Obama declared with pride that the abortion movement’s cherished right to choose abortion was part of Obamacare. In that, he spoke the truth.
Russell Shaw is an OSV contributing editor.