Updated Aug. 26, 2014
The Obama administration has issued new rules regarding its abortion/contraception mandate but again appears to have failed to satisfy the concerns of religious freedom advocates.
A division of the Department of Health and Human Services (HHS) announced Friday (Aug. 22) the latest revision of the controversial regulations, which require employers to provide for their workers not only contraceptives but drugs and devices that can potentially cause abortions. It is the eighth revision of the rules, according to the Becket Fund for Religious Liberty.
In a fact sheet accompanying the new regulations, the Centers for Medicare & Medicaid Services (CMS) said the rules provide a new option for notification by non-profit religious organizations that object to the mandate. The non-profit may notify HHS in writing of its religious objection. In response, the federal government will notify the insurer or a third-party administrator it is responsible for providing employees of the non-profit with payments to cover the services.
CMS’ fact sheet also says proposed rules have been published to expand an accommodation for “closely held,” for-profit companies, such as family-owned businesses. The two approaches for defining such an entity that has a religious objection are described this way in the fact sheet: “Under one approach, the entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners. Under an alternative approach, the entity could not be publicly traded, and a minimum percentage of ownership would be concentrated among a certain number of owners.”
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) was among the organizations that found the latest HHS revision unsatisfactory.
“Here we go again,” ERLC President Russell D. Moore said in a written statement. “What we see here is another revised attempt to settle issues of religious conscience with accounting maneuvers. This new policy doesn’t get at the primary problem. The administration is setting itself up as a mediator between God and the conscience on the question of the taking of innocent human life.”
In an analysis, the ERLC said the administration "still falls short of understanding the concerns surrounding religious liberty."
"The government has resorted to shuffling paperwork, not ceasing its conscience-paving ways," analysis coauthors Barrett Duke and Andrew Walker wrote. Duke is the ERLC's vice president for public policy and research. Walker is the entity's director of policy studies.
"Essentially, the administration has set itself up as the grand inquisitor, determining who is religious enough to merit the government's benevolence and who is not," Duke and Walker said in the analysis.
"The rule reveals the administration remains committed to advancing sexual liberty over First Amendment protected religious liberty."
Others who have called for conscience protections for employers also expressed dissatisfaction with the latest rules:
• Rep. Chris Smith, R.-N.J., co-chairman of the Congressional Pro-Life Caucus, called the revision "a direct, obnoxious, unprecedented government attack" on conscience rights. "Rather than protecting the religious freedom and deeply held beliefs of nuns, monks, Christian colleges and charities, today's announcement just establishes another bogus procedure designed to force people of faith to violate their religious beliefs…," Smith said.
• Arina Grossu, director for the Center for Human Dignity at the Family Research Council, said the revision "is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees."
• Archbishop Joseph E. Kurtz, president of the U.S. Conference of Catholic Bishops (USCCB), said after an initial review the conference is disappointed "the regulations would not broaden the 'religious employer' exemption to encompass all employers with sincerely held religious objections to the mandate."
The Becket Fund for Religious Liberty and the Alliance Defending Freedom (ADF) – two organizations representing entities that have challenged the mandate in court – said they would review the regulations with their clients. They did not express any fondness for the new rules, however.
Gregory Baylor, senior counsel for ADF, said the administration "has failed to extend its existing religious exemption to the religious owners of family businesses and to religious non-profits other than churches. That would have been the best way of respecting freedom for everyone."
The administration also announced Aug. 22 guidelines seeking comment on an accommodation for "closely held," for-profit companies, such as family owned businesses. The rules offer two approaches for defining such an entity with a religious objection. The first would be a business in which "none of the ownership interests in the entity is publicly traded and where the entity has fewer than a specified number of shareholders or owners." The second would be an entity in which "the ownership interests are not publicly traded, and in which a specified fraction of the ownership interest is concentrated in a limited and specified number of owners."
HHS acknowledged both rules were issued in response to Supreme Court decisions this summer. The revision regarding non-profits came in light of the high court's July order blocking enforcement of the mandate against Wheaton College, a Christian school in suburban Chicago, until the appeal process is complete. The justices' order said the school – and, by likely extension, other objectors – need only inform HHS it is a religious non-profit with religious objections and not fill out the form required by the government.
The rules regarding "closely held" for-profits followed the Supreme Court's June opinion in favor of the religious liberty rights of Hobby Lobby and other family owned businesses. The new proposals regarding for-profits would "effectively reduce, rather than expand, the scope of religious freedom" provided by the Supreme Court, according to the USCCB.
The abortion/contraception mandate, which was part of the implementation of the 2010 health-care law, requires coverage of such drugs as Plan B and other "morning-after" pills that possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which — in a fashion similar to the abortion drug RU 486 – can act even after implantation to end the life of a child.
HHS has provided an exemption to the mandate for churches and their auxiliaries but did not extend it to non-church-related, non-profit organizations and for-profit companies that object.
Nearly 320 parties – some non-profits and some for-profits – have combined to file 102 lawsuits against HHS, according to the Becket Fund, which has led the diverse effort challenging the mandate.
Moore added, “When it comes to these contentious issues I don’t necessarily expect those who disagree with us to ask, ‘What Would Jesus Do?’ But, in this case, asking ‘What Would Jefferson Do?’ would be a good start.”
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press.)