More of the same

The Department of Health and Human Services (HHS) released its final rules for Obamacare’s contraceptive mandate today, paving the way for nonprofit religious organizations to press forward with their legal challenges.

About 60 lawsuits, representing 200 plaintiffs, are pending against the rule, which requires organizations with more than 50 employees to provide coverage for contraceptive and abortifacient drugs under their health insurance plans. Federal judges across the country dismissed many of the cases brought by nonprofits, saying they couldn’t sue until the rule actually took effect.

But with deadlines and fines now looming, the courts must entertain their religious liberty arguments. Challenges are pending in every appeals court in the country, virtually guaranteeing the cases eventually will end up before the U.S. Supreme Court.

Eric Rassbach, deputy general counsel at the Becket Fund for Religious Liberty described the adopted rule as "more of the same." Although the government did “tinker” with some of the mechanisms for providing contraceptive and abortifacient drugs, those changes did not get at the heart of the fundamental religious conscience issues raised by the rule, he said.

“Ultimately the problem the government has is that it only has one tool in its toolkit to force the spread of these drugs—the employer mandate,” Rassbach said. “So, it is forced to use employers to be the means to that end. But religious employers don’t want to be the means to that end. That’s the fundamental conflict that will be answered in the courts.”

Christian legal organizations Becket Fund and Alliance Defending Freedom (ADF) represent a majority of the plaintiffs challenging the mandate. Today’s final rule simply confirms that the Obama administration is determined to wage war on religious freedom, ADF Senior Counsel Gregory Baylor said: “It ignores the voices of numerous Americans who expressed concern about the mandate’s impact on for-profit, faith-based job creators. And it does nothing to alleviate the concerns of the nonprofit religious organizations we represent, who are still subject to the mandate. On multiple levels, the president is articulating what is arguably the most narrow view of religious freedom ever expressed by an administration in this nation’s history.”

Under the final rule, administration officials claim to have simplified the requirements for religious organizations, compared to the proposed rules issued in February. But the effect remains the same—insurers must provide coverage for contraceptive and abortifacient drugs at no cost to women who work for employers who object to providing the medications. Although administration officials stress that nonprofit employers will not be required to cover the costs—therefore violating their beliefs—critics note the insurance companies are not likely to absorb the expense. The cost to provide the “free” coverage will be passed along in higher premiums, forcing the employers and all employees to pay for the drugs after all. For self-insured plans, the third-party administrator will pay for the coverage by reducing federal fees.

The final rule gives certain religious nonprofits until Jan. 1, 2014 to comply. But for-profit companies, including craft chain Hobby Lobby, do not qualify for the consideration offered to nonprofits and must comply as soon as their new insurance plan year begins. The Oklahoma-based retail chain owned by the Green family, well-known Christians, won an injunction against the mandate yesterday. The ruling delays $1.3 million in daily fines, set to start July 1, while the company makes its case in the courts.

In a statement issued with the final rule, HHS Secretary Kathleen Sebelius said the administration had found the right balance between religious considerations and providing all women access to health-related services: “Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other non-profit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”

But Rassbach and other critics of the rule say the government is missing the point. Religious nonprofits and employers who object to providing certain drugs on religious grounds are being forced into the role of gatekeeper, Rassbach said: “If you provide insurance, you must give the keys to get abortions. That’s the fundamental problem. … The financial aspect is important, but ultimately it’s about whether [employers] are required to help someone to obtain an abortion.”