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.

“Game-changer”: Supreme Court helps the Little Sisters, though mandate stands

For now, the Little Sisters of the Poor and the numerous other faith-based agencies fighting the HHS contraceptive mandate will NOT be subject to federal penalties for refusing to be a party (via employer-provided health insurance) to provision of goods and services that violate their faith. A unanimous U.S. Supreme Court decision today made that clear, while sending thirteen challenges to the mandate back to lower courts.


“This is a game-changer,” said Mark Rienzi of the Becket Fund, representing the Little Sisters. “The Court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

I admire Mr. Rienzi’s optimism. I hope he’s right.

The eight Justices declined to rule on the legality of the mandate, which is a regulation that followed the federal Obamacare fiat that contraception for women is a basic “preventive” health service. This federal policy that women are basically broken and in need of fixing is left untouched by today’s Court action.

The federal government can go ahead and provide the coverage for contraceptives and abortion-inducing drugs and devices, under today’s Court action.

The bad news is that this means no majority could be mustered in the Court to reject the mandate altogether. That was the “decision” of the day: the mandate is still legal, despite numerous carve-outs and exemptions. From SCOTUSblog:

“The two issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the [Affordable Care Act] mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the ‘least restrictive means’ to carry out the mandate.”

“A decision not to make a decision is still a decision.” Those words were drummed into my head by my public-policy professor more than three decades ago as I studied landmark Supreme Court cases. An important non-decision was made today: the mandate stands. So do at least thirteen challenges to it, though, and that’s good news.

(See earlier Leaven coverage at “Religious Liberty and the HHS/Obamacare mandate.”)

Quite a Fortnight, with more religious-liberty questions than before

It’s appropriate, no matter which side one supports, that the Supreme Court’s decision on marriage came down during Fortnight for Freedom. It also came just a couple of days after this blog linked to a provocative speech on the difference between freedom of worship and freedom of religion.

Liberty Bell replica, New Hampshire State House (E. Kolb photo)
Liberty Bell replica, New Hampshire State House (E. Kolb photo)

The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. 

So if “it must be emphasized,” I’ll do so:

…religions, and those who adhere to religious doctrines, may continue to advocateThe First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …

So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home?  Just how does all this translate into the daily give-and-take of civic action?

It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.

Marriage

The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.

Abortion

Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.

To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?

The HHS mandate

Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.

Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?

The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?

There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.

Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.


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Busy day in Concord starts with end-of-life bill

End-of-life; smoothing the way for telemed abortions; making oral contraceptives available over the counter (and maybe undercutting the HHS mandate on the way); demanding transparency from insurers: welcome to Tuesday at the State House in Concord. Hearings will begin this morning on these bills.

HB 151:  establishing a committee to study end-of-life decisions

In 2013, Governor John Lynch vetoed a bill to set up a committee to study “end-of-life decisions.” The bill had originated as a straight-up assisted suicide bill before being amended into what the sponsor hoped would be a noncontroversial baby step forward. I noted at the time that Rep. Robert Rowe was not fooled. He spoke to his colleagues briefly and forcefully during the floor debate, saying “The total thrust of this bill is euthanasia.”

New session, new sponsor: House Bill 151 has been brought forward by Rep. Larry Phillips (D-Keene). The bill has no co-sponsors at this time. Rep. Phillips wants to commission six state representatives and one state senator to study end-of-life decisions, with the bill to become effective upon passage and a committee report due November 1.

The committee, should it be formed, would be tasked with (but not limited to) “investigating the positive and negative effects of legislation in states that have enacted aid in dying laws, innovation practices of other states, specifically Minnesota, Wisconsin, and California, how to encourage careful and responsible deliberation about this complex and emotional issue, and any other matter the committee deems relevant to its objective.

Rep. Rowe had it right in 2013. His words are just as apt now.

SB 36: making oral contraceptives available without a prescription

This one comes from Senator Andy Sanborn (R-Bedford). Interesting. I had two thoughts when I heard about this bill: Culturally, it’s wretched. Politically, it has one potential good effect: it could weaken the Obamacare contraceptive mandate.

If oral contraceptives are available without a prescription – behind the counter, under the terms of Sen. Sanborn’s bill, rather than over the counter – they won’t be covered under anyone’s health insurance prescription drug plan. Anyone wanting to consume an oral contraceptive would pay for it herself, or receive it under a Title X family planning subsidy. That’s how things stood before August 2012, when the creaking leviathan known as Obamacare began imposing what was then known as the HHS mandate.

Obamacare classifies suppression of female fertility as a public-health priority, to the extent of treating it as “preventive care.” We are all therefore mandated to pay for it in our health insurance plans, and most business owners are required to include it in any health insurance plan offered to employees, irrespective of religious beliefs about the immorality of contraception and abortion-inducing drugs. Remember, the Hobby Lobby case was very narrow. Many other Americans are still in court defending their right not to pay for someone else’s contraception.

If SB 36 were to pass, it wouldn’t affect shots or implants or IUDs. The contraceptive mandate would still exist, as long as there’s public policy in place that treats women’s fertility as something to be prevented. Title X would still exist, with tax-funded block grants going to states for “family planning” excluding surgical abortion.

I wonder what non-prescription birth control pills would mean for agencies like Planned Parenthood. Is it safe to assume that the cost of the drugs would go down, if they were available without prescription? Would the agencies pass on those savings to clients? Would they not need quite so much Title X money to do the same job they’re doing now? Or would the agencies shift to a medical model relying more on implanted drugs, keeping the mandate as a cash cow?

Let’s see who shows up to testify on this one.

SB 42: relative to employee notification of contraceptive coverage

If SB 42 passes, and if you’re an employer who offers health insurance as an employee benefit, you have to tell your employees about contraceptive coverage and what contraceptives might not be covered.

“Such notice shall be prominently displayed on the face of any written application for employment …[and] where such employer maintains a publicly accessible Internet webpage that provides information on prospective employment opportunities, the employer shall provide clear and conspicuous notice on the webpage as to whether the employer provides contraceptive coverage and, if so, whether such coverage includes some, but not all, contraceptive drugs and devices or their generic equivalent approved by the FDA.”

Fine. We’ll inch toward transparency in our insurance policies even if we have to rely on Hobby Lobby opponents to do it. This bill is sponsored by Senators David Pierce (D-Lebanon) and Martha Fuller Clark (D-Portsmouth), who are fuming at the very narrow victory won at the Supreme Court by the owners of Hobby Lobby, who objected to covering four out of the twenty methods of FDA-approved contraception.

Of course, transparency isn’t the sponsors’ goal here. It’s simply a means to a couple of ends. One end is to embarrass employers who would rather stay out of their employees’ sex lives. Another is to make abortion and birth control indistinguishable and equally desirable under public policy. The owners of Hobby Lobby objected only to helping provide four methods of “birth control” that are known to induce abortions. The Supreme Court OK’d that narrow exception for that one type of business (closely-held). That’s apparently going too far, in the eyes of Senators Pierce and Clark.

SB 84, relative to the definition of “telemedicine”

Telemedicine – the use of electronic media like video conferencing for the purpose of diagnosis, consultation or treatment – is going to be extraordinarily valuable. It holds great promise for mental health treatment, among other things, and mental health treatment was the focus of a New Hampshire study committee on telemedicine. SB 84 has been drafted in the wake of the committee’s recommendations.

A New Hampshire telemedicine law will be just as useful for abortion providers who have been impatient to start dispensing abortion-inducing pills remotely. Telemed abortions are already being done elsewhere in the country. It’s neither good medicine nor good social policy to suppress telemedicine simply because abortion providers want to use it. As with SB 36, though, it’ll be interesting to see who testifies on this one.

 

Why sue over the mandate?

With three days to go until the Supreme Court announces its decision in the Hobby Lobby & Conestoga Wood Products cases, time for a review: why even bother to sue the federal government over Obamacare’s contraceptive mandate at all? Why not just go along?

CAM00569Because religious liberty matters. It’s not simply a matter of worship, taking place in a building once a week. The mandate forces the question of how Americans may exercise their beliefs in everyday life. If an American holds the religiously-based belief that contraception and abortion are immoral, can that American be forced to pay for them? How about a business owner who wants to provide employees with health insurance, but on religious grounds wants no part of helping fund contraception and abortion as “preventive care”?

Two years ago, the Catholic bishops of the United States filed twelve lawsuits challenging the mandate. Read Mary Ann Glendon’s Why the Bishops are Suing the Government, written in May 2012. The issues she described then are still unsettled today.

The main goal of the mandate is not, as HHS claimed, to protect women’s health. It is rather a move to conscript religious organizations into a political agenda, forcing them to facilitate and fund services that violate their beliefs, within their own institutions. The media have implied all along that the dispute is mainly of concern to a Catholic minority with peculiar views about human sexuality. But religious leaders of all faiths have been quick to see that what is involved is a flagrant violation of religious freedom. That’s why former Arkansas Gov. Mike Huckabee, a Baptist minister, declared, ‘We’re all Catholics now.'”

How about people with religious beliefs who don’t work for a religious organization? That’s where Hobby Lobby and Conestoga Wood Products come in. Those are two companies that don’t qualify in any way for the Obama Administration’s “accommodations” on the mandate. They’re secular businesses. The owners reluctantly filed suit against the mandate, because there seems to be no room under Obamacare for them to provide health insurance for their employees while having their own religious beliefs respected.

Religious liberty, or mere freedom to worship? The First Amendment’s free speech guarantee got a very qualified endorsement by the Supreme Court in the recent buffer zone case. Let’s see how narrowly another aspect of the Amendment is viewed by the Court on Monday.