Final “Exemptions” Announced to HHS/Obamacare Mandate

The U.S. Department of Health and Human Services is issuing two final rules revising the Obamacare contraception mandate, in an effort to relieve those with religious and moral objections from compelled contraceptive insurance coverage. Not a moment too soon, either. Read Wesley J. Smith’s summary of the rules here.

HHS describes the rules:

The first of today’s final rules provides an exemption from the contraceptive coverage mandate to entities that object to services covered by the mandate on the basis of sincerely held religious beliefs. The second final rule provides protections to nonprofit organizations and small businesses that have non-religious moral convictions opposing services covered by the mandate.

The religious and moral exemptions provided by these rules also apply to institutions of education, issuers, and individuals.

The Departments are not extending the moral exemption to publicly traded businesses, or either exemption to government entities.

I’ve written at length about the Obamacare mandate that contraceptives for women be treated as “preventive” health care. The mandate was and is wrong on at least two levels: its assumption that women are broken and need to be fixed, and its attack on the First Amendment rights of employers like the Little Sisters of the Poor and Hobby Lobby who have religious or moral objections to helping provide or procure contraceptives, abortifacient or otherwise, for employees.

The new rules may be as close to a solution as can be achieved, with exemptions to the mandate now much broader than before. But there shouldn’t need to be exemptions, because the mandate shouldn’t exist.

President Trump’s Administration is right to recognize the threat to religious liberty posed by the mandate. But this president is no more likely than the previous one to back away from the public policy that treats women as things that need fixing, as though women’s fertility were a disease.

Nuns sued = War on Women

I thought we were done with this, but government officials want the Little Sisters of the Poor to pay for other peoples’ birth control. In October, the feds bowed out of that asinine battle for the time being*, via a rule that is still open for public comment. Now, state-level harassment takes the stage as the Attorneys General of Pennsylvania and California – both men, as it happens – seek to force the Sisters to knuckle under.

The Sisters minister to elderly people living in poverty. Litigation is not their specialty. Fortunately, the Sisters have good legal representation. Too bad they need it.

See “For the love of God, why can’t Democrats leave the Little Sisters of the Poor alone?” by Nicole Russell in the November 26 Washington Examiner.

Challengers to conscience rights aren’t done, and those challenges are going to go beyond contraception. Anyone who wants to force you to pay for other peoples’ contraception will just as readily work to overturn or prevent abortion-funding restrictions.

Anyone who says “health care” and means “you pay for my contraception” is debasing the language.

Anyone who sues nuns to force them to pay for contraception is waging war on women.

Anyone who thinks contraception is “preventive health care” is asserting that women are broken and need to be fixed.

We’ll see how the two offending states fare in their effort.

 

* From the web site of the Becket Fund, a public-interest law firm defending the Little Sisters of the Poor: “On October 6, 2017, the government issued a new rule with a broader religious exemption. The rule may be changed after the government considers the comments it receives. Becket attorney Mark Rienzi stated, ‘It should be easy for the courts to finalize this issue now that the government admits it broke the law. For months, we have been waiting for Department of Justice lawyers to honestly admit that fact, like the President did in the Rose Garden five months ago. Now that the agencies admit the mandate was illegal, we expect the leadership of the Department of Justice will cooperate in getting a final court resolution.'”

The Mandate Takes a Hit. That’s Not Enough.

Nine months after taking office, five months after assuring the Little Sisters of the Poor that they could quit fearing fines, the Administration of President Donald Trump has announced a rollback of the HHS contraceptive mandate. (See here for my earlier coverage of the mandate.)

From Fox News:

The Trump administration on Friday announced a major rollback of the ObamaCare contraceptive mandate, granting what officials called “full protection” to a wide range of companies and organizations that claim a “religious or moral objection” to providing the coverage. 

The mandate, which has been the subject of multiple legal challenges, has required employers that provide health insurance to cover contraceptives. Under the existing policy, churches and houses of worship were exempt, while religious-affiliated groups that object had to allow a third-party administrator or insurer to handle birth control coverage. The 2014 Hobby Lobby decision expanded exemptions to for-profit “closely held” corporations.

But under the new policy unveiled Friday, the Trump administration is expanding the protections to any nonprofit group, non-publicly traded company, or higher education institution with religious or moral objections — and making the third-party provision optional for groups with “sincerely held” religious beliefs.

 (Full Fox News post here.)

I’m pleased that the President has followed through on a commitment he could have carried out his first day in office. Better late than never. Maybe he has no roots on this, and it took time for the people around him to put the ducks in a row. Notice the arm’s length language of the news report: Trump administration did this, officials said that. 

I’m grateful. That’s simple courtesy and a measure of positive reinforcement. But I’m not going to grovel over the recognition of my rights of conscience and religious liberty that should never have been abrogated in the first place. It’s not as though the President is doing me a favor.

Actually, today’s action does sound like someone thinks there are favors to be dispensed. The news coverage speaks of exemptions, protection, and rollback. Selected entities are added to the list of exempt organizations. No mention of the First Amendment, at least in the initial breaking news update. It’s the First Amendment that’s at issue, which is something the mandate’s supporters have ferociously denied since 2012.

Why does the mandate stand at all? Why is there still anything to be exempted from?

The contraceptive mandate came out of Obamacare’s definition of birth control for women as “preventive care.” In a manner beyond anything the rankest sexist could have dreamed, Obamacare made it government policy that women are broken and need to be fixed. The normal functioning of a woman’s body was something to be “prevented.” Contraception was shifted from being a matter of choice to being a matter of public policy, forcing employers who chose to offer health insurance coverage to be involved in employees’ birth control decisions. Nothing ever put employers into employees’ bedrooms quite like the contraceptive mandate.

It’s to the everlasting credit of the American Catholic bishops that they recognized the mandate’s threat to religious liberty. Among other things, they knew that the Catholic health care system – which provides care to more women than any other provider in the nation – could be fined out of existence by the mandate.

The mandate originally came with exemptions for some politically-favored companies and organizations. Hobby Lobby and other plaintiffs later earned a Supreme Court victory that was extremely narrow, releasing closely-held companies from the mandate. President Trump told the Little Sisters of the Poor earlier this year that they could consider themselves free from fear of being fined for not wishing to pay for insurance coverage for employees’ birth control. At least fifty other lawsuits are pending against the mandate; I don’t know how many just became moot.

Today, the mandate took a serious hit. It’s still staggering around, though. The only way to kill it is to abandon the policy that gave rise to it in the first place. Stop treating the suppression of women’s fertility as “preventive care.” Stop expecting “free” contraception. When “free” means compelling financial support from people with religious objections to contraception, then “free” is too expensive.

Today’s action from the Trump Administration is long overdue. It’s the biggest hit on the mandate since Hobby Lobby. The mandate’s foundation remains in place, though. For religious resisters to the mandate, First Amendment rights are still at risk. May today be a spark to renewed assertion of those rights.

Fortnight for Freedom 2017

Fortnight for Freedom is back for 2017, running from today until Independence Day. This project of the U.S. Conference of Catholic Bishops is for everyone.

Religion [cannot] be relegated to the inner sanctum of personal life, without influence on societal and national life. –Pope Francis, Evangelii Gaudium

Watch for Fortnight for Freedom (F4F) posts on Leaven’s Facebook and Twitter feeds during the next two weeks.

From the Leaven for the Loaf archives:

The Supreme Court’s marriage decision came down during F4F 2015, leaving more religious liberty questions than before

F4F 2016: SCOTUS refuses to hear conscientious objection claims from pharmacists

F4F 2014: In wake of Hobby Lobby decision, religious leaders call for protection of Religious Freedom Restoration Act 

On (not) keeping religion out of politics 

F4F 2013: Bishop Joseph Libasci open F4F in New Hampshire

“Considering” religious liberty

President Trump has issued an executive order on religious liberty, addressing in part the litigation between the government and the Little Sisters of the Poor over the government’s contraceptive mandate.  The Sisters are apparently off the hook, if I properly understood the remarks the President made before he signed the order.

(Some of my earlier posts about the mandate are collected here.)

The Sisters are among the many plaintiffs who object to the contraceptive mandate in Obamacare on religious grounds. They don’t want to help procure contraception or abortion-inducing drugs and devices for their employees via employer-provided insurance. They have to go to court over this, lest they face fines that would destroy their ability to carry out their vocation to minister to impoverished elders.

The operative line in President Trump’s order is this: “The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate…” (Recall that contraception was declared to be “preventive” care under Obamacare.)

Consider issuing amended regulations?

I’m happy for the Sisters. This is good news, as far as it goes. But there’s a long way to go before the mandate is history.