Update on HHS Mandate Battle

Details: 23 August 2013

On June 28, the Obama Administration issued its "final rule" on implementation of the so-called "HHS contraception/sterilization mandate." This appalling mandate (which applies to many religious employers like Catholic hospitals, schools and charities) requires healthcare coverage for sterilization, contraception, and drugs and devices that may cause abortions.

The mandate went into effect a year ago (August 1) in the case of for-profit employers. Non-profit religious employers who are not exempt from the mandate (entities previously mentioned) were given an additional year (August 1, 2013) to, in the words of Cardinal Timothy Dolan, figure out how to violate their consciences.

The final rule extended the deadline of implementation on non-exempt religious employers from August 1, 2013 to January 1, 2014. However, the mandate still poses a serious threat to religious liberty and freedom of conscience that is unprecedented in federal law.

First, the mandate exempts only religious institutions that fit an extremely narrow definition (unprecedented in federal law) of religious employer. Essentially, it only includes "houses of worship." This narrowing of who qualifies as religious enough to be exempted from the mandate is an attack on our Constitution’s First Amendment protection of religious freedom.

The final rule not only maintains this narrow definition of religious employer but makes matters even worse by preventing dioceses and other exempt employers from extending their coverage to the employees of religion-based service ministries that are not exempt.

Second, the Obama Administration’s (I believe cynical) attempt to "accommodate" the moral/religious objections of non-exempt religious employers has failed. Barring a legal or legislative remedy, as of January 1, 2014, non-exempt Catholic schools, hospitals and charities will be forced to choose between providing healthcare coverage for morally objectionable services and paying crippling fines.

Third, the final rule provides no exemption or "accommodation" whatsoever for individuals or for-profit businesses with moral/religious objections to the mandated services.

The Obama Administration’s refusal to rescind this insidious mandate or to at least exempt individuals and employers who have moral/religious objections to it, means that every effort must be made to invalidate it in the courts or through federal legislation.

According to The Becket Fund (whose website—www.becketfund.org—provides up-to-date information on all lawsuits against the mandate), there are 37 lawsuits that have been filed by for-profit employers against the mandate. Thirty-two of those lawsuits have obtained rulings touching on the merits of the claims against the mandate. Of these 32 lawsuits, 25 have received relief from the mandate by the courts.

There are 30 lawsuits filed by non-profit employers, including by religious organizations such as hospitals, charities, colleges and Catholic dioceses. So far, only one of these lawsuits has received a ruling based on the merits of the case and the court granted relief from the mandate.

The rest of these lawsuits have received rulings only on procedural matters such as timing. For example, many of these lawsuits were dismissed because the courts concluded that the threat of harm to the plaintiff was not imminent since they were granted a one-year moratorium (until August 1, 2013) while the Administration tried to "accommodate" their moral/religious objections. Now that the final rule implementing the mandate is in place, and implementation of the mandate is imminent, most of these dismissed lawsuits will be re-filed in court.

Efforts to eliminate the mandate are also underway in Congress with introduction of the Health Care Conscience Rights Act (H.R. 940, S. 1204). This bill would apply longstanding conscience protections found in other areas of federal law to the Affordable Care Act (aka Obamacare) thus protecting religious individuals and employers from the HHS mandate. It would also strengthen existing conscience protections in federal law.

Nebraskans are fortunate that our entire Congressional delegation (2 U.S. Senators and 3 Representatives) have co-sponsored the Health Care Conscience Rights Act. They should be thanked and encouraged to fight for passage of this bill. Contacting them has been made easy by going online to www.nchla.org. In addition, our bishops are encouraging us to utilize and promote the great educational materials, including a compelling short video, available online at www.usccb.org/conscience.

You can contact Greg at The Nebraska Catholic Conference, 215 Centennial Mall South Suite 310, Lincoln, NE 68508; This email address is being protected from spambots. You need JavaScript enabled to view it.