The updated HHS Mandate: Another fail by the Obama administration

And it’s time to tell them so.

For those companies affected by Obama’s health care mandate requiring employers to provide contraceptive and abortion-inducing drugs, Friday brought some long-awaited clarifications and updates on the “religious exception.” However, these new regulations fall short of protecting conscientious objectors.

Kathleen Sebelius, Barack Obama's HHS Secretary.

Kathleen Sebelius, Barack Obama’s HHS secretary.

The government’s Center for Consumer Information and Insurance Oversight announced:

Today, the Obama Administration moved forward to continue to implement provisions in the health care law that would provide women contraceptive coverage without cost sharing, while taking into account religious objections to contraceptive services by certain religious organizations.

The key word in the above statement is “certain” religious organizations. Under these new rules, two groups receive “protection” – religious employers and non-profit religious organizations. No protection has been extended to for-profit businesses owners.

The definition of “religious employers” is to be governed by the IRS Code, which would “primarily include churches, other houses of worship, and their affiliated organizations.”

The Non-Profit Religious Organizations exception would provide protection for organizations that meet a four-pronged test: 1) a religious objection, 2) a nonprofit entity, 3) a religious organization, and 4) a self-certification that the first three requirements are met.

However, employees of non-profit religious organizations would still have access to drugs that the employer objects to under this updated Mandate:

[P]lan participants would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums.  The issuer would work to ensure a seamless process for plan participants to receive contraceptive coverage.

Anna Higgins, director of the Family Resource Center’s Center for Human Dignity, called this updated Mandate an “accounting gimmick” since employees would still be receiving the drugs from insurance plans that employers paid for:

The accounting gimmicks HHS is now proposing under the latest regulation fail to satisfy the religious freedom protections that exist in other current laws and in the First Amendment of the U.S. Constitution.

The proposal does not expand religious freedom to all organizations and does nothing to change the current policy that forces religious entities to pay for insurance plans that include abortion-inducing drugs, sterilizations and contraception. The mandate continues to force religious non-profit institutions as well as companies guided by a well-articulated and longtime moral code, such as Hobby Lobby, to violate their faith, threatening serious fines in the millions of dollars if they refuse to comply.

Regardless of whether insurance companies or third party administrators use their dollars for an employee’s free abortifacients and contraceptives, the provision of these drugs and devices still necessarily depends on the religious employer’s health insurance plan. They remain the gateway for drugs and services to which they object. Therefore, the HHS mandate still violates the Religious Freedom Act, and the Weldon conscience amendment which bans HHS from engaging in precisely this type of discrimination.

The Obama administration is accepting comments and feedback on this HHS update through April 8, 2013.

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