HHS stands firm despite recent court losses

In what Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, called “part of a long retreat,” the Obama administration announced Aug. 22 yet another “revised accommodation” to its contraception mandate.

The latest set of federal rules from the Department of Health and Human Services offers what the administration calls “a second pathway” for religiously affiliated nonprofits who object to paying for coverage of birth control, including some abortifacients, as mandated by the Affordable Care Act.

Under the new rule, objecting organizations are to notify the HHS department that they reject coverage, and the government will then work with the insurance company and employee to provide coverage through a third-party administrator. Previously, objecting employers had to notify the insurance companies themselves via a signed form, which most religious ministries objected to on the grounds that signing the form maintained their complicity.

Though Rienzi stressed that he was not yet able to speak on behalf of the many religious organizations legally represented by the Becket Fund, he did tell Our Sunday Visitor that the new version of the accommodation “doesn’t seem likely to fix much of anything.”

“I think it’s highly unlikely that what the government has done here is going to stop the litigation and solve the problem, which is unfortunate,” he said. “It’s kind of a mystery why the government won’t just go ahead and provide contraceptives without involving religious ministries and without trying to take over their plans. It almost looks like the government doesn’t want to solve the problem.”

Court rulings

The battle for religious liberty is being fought primarily on two fronts: by nonprofit religiously affiliated organizations such as universities, hospitals and those like the Little Sisters of the Poor and Our Sunday Visitor; and by closely held for-profit companies, many of which are family-run, such as the arts and crafts store Hobby Lobby.

In both camps, employers object to offering contraceptives, abortifacients and sterilization drugs on religious grounds, and both scored victories at the Supreme Court level this summer. On June 30, the court ruled that Hobby Lobby, a for-profit company, was exempt from the mandate. Days later, on July 3, the majority of the court’s justices granted a temporary injunction for the evangelical Wheaton College, a nonprofit educational institution, exempting it, at least for now, from providing the objected-to coverage.

“What the government said in the Hobby Lobby decision was that the most straightforward way for the government to achieve this goal is for the government to get people the drugs instead of forcing other people to do it,” Rienzi said. “Particularly in a world with health insurance exchanges, that is by far the most direct and logical way to do it.”

In essence, Rienzi said, the government had to provide a revised accommodation.

“The government was forced to do this because it keeps losing,” he said. “What they should have done was just give up what is a bad fight to be in.”

HHS offers new option

The new rule, according to HHS, was issued in response to those Supreme Court decisions.

“Women across the country deserve access to recommended preventive services that are important to their health, no matter where they work,” said HHS secretary Sylvia Burwell in a statement Aug. 22. “Today’s announcement reinforces our commitment to providing women with access to coverage for contraception, while respecting religious considerations raised by nonprofit organizations and closely held for-profit companies.”

In a statement, Louisville Archbishop Joseph E. Kurtz, president of the U.S. Conference of Catholic Bishops, said the conference is “carefully” studying the regulations and would provide more detailed comments at a later date.

But “on initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate,” he said. “Instead, the regulations would only modify the ‘accommodation,’ under which the mandate still applies and still requires provision of the objectionable coverage.”

In an interview with OSV, Archbishop William E. Lori, chair of the USCCB ad hoc committee on religious liberty, seconded that “a very careful policy analysis” of the new regulations is underway right now, but added that the revised accommodation seems “very unfortunate,” especially in light of the Hobby Lobby ruling.

Further threats

The bishops also are concerned about the administration’s stated willingness to extend the accommodation offered to religious nonprofits to closely held for-profits.

“By proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom,” Archbishop Kurtz said.

In addition to the moral questions raised by the HHS regulations, Archbishop Lori said he is concerned about the “overall effects ... on the freedom of our Catholic institutions to serve and to bear witness.”

“It’s not just a matter of avoiding evil; it’s also a matter of bearing a positive witness by how we conduct our ministries both internally and externally.”

Gretchen R. Crowe is editor of OSV Newsweekly.

Five things to know
1. This is the eighth retreat the administration has made from their original stance that only “house[s] of worship” receive religious liberty protection.