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August 25 2014

Here We Go Again: New HHS Mandate Rules

Charlotte Hays

On Friday, the Department of Health and Human Services put forth new rules for its contraception mandate.  The contraception mandate is a facet of the Affordable Care Act.

Coming in the wake of the Supreme Court’s Hobby Lobby ruling—which held that a closely-held company such as Hobby Lobby could not be forced to provide coverage for drugs or procedures that violate the religious consciences of the owners—the new rules deal with faith-based nonprofits.

Among the organizations that will be affected are the Little Sisters of the Poor, a group of Catholic nuns who provide care to the neediest elderly at the end of their lives. 

The HHS mandate requires coverage of drugs that the Catholic Church teaches to be wrong, and so the Little Sisters reluctantly sued the federal government. If the government can’t carve out a way to accommodate the nuns, they could be forced to pay heavy fines that would jeopardize their ability to continue their work with the poor. The Becket Fund, a consortium of lawyers handling religious liberty suits, represents the nuns pro bono. The Becket Fund also represented Hobby Lobby in its successful HHS mandate challenge before the Supreme Court.

Will the new rules be any better at protecting the religious liberty of the Little Sisters and other religiously-based nonprofits?

Unfortunately, it appears that the August 22 rules—the eighth rewrite of the original HHS mandate rules—show the same disregard for religious liberty that has become a hallmark of government, in the last few years especially. In fact, the new rules appear to be nothing more than a cosmetic attempt by the administration to get religiously-based nonprofits to endorse a practice they regard as wrong.

The new rule requires the religious nonprofit to write a letter to the government stating its objection. The government then steps in and tells the insurer to provide the objectionable services, supposedly allowing the nonprofit to sidestep the issue. What about this?  

The Daily Signal explains:

The Obama administration’s latest bureaucratic tweak to the mandate would only replace one bad regulation with another.

Under current regulations, a religious non-profit can sign what amounts to a “permission slip”directing their insurance company or administrator to cover the objectionable drugs and devices – a scheme most organizations believe still makes them complicit in a gravely immoral act. Under today’s revision, objecting religious non-profits would instead send a letter to HHS. HHS would then direct the organizations’ health plans to include the objectionable drugs and services.

Numerous federal courts — including the Supreme Court – have seen through the current gimmick and granted temporary protection from the coercive mandate for religious non-profits in 31 cases.

Just adding another step to an already broken and unacceptable process doesn’t protect religious freedom. As the Supreme Court has noted, there are plenty of other ways for the government to provide abortion-inducing drugs and contraception to those who want them without hijacking employers health plans.

The Daily Signal (an increasingly indispensable source of news and commentary) has a good synopsis of what the new rules do and don’t do.

It appears at first look that the federal government remains bound and determined to force religious organizations that object to certain drugs or procedures to become in some way complicit in the delivery of these drugs and procedures.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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