Question

Kathleen Sebelius, Secretary of HHS, has promulgated regulations as part of the Patient Protection and Affordable Care Act of 2010 that require every employer to provide a health insurance plan that guarantees access to abortification drugs. Some employers, like the Catholic church, consider this requirement to be immoral and to violate their rights to worship as they please. What do you think? Does the federal government have the right to impose regulations, in the name of the public good, that violate the rights of religious organizations to practice their religion? What would happen if a clinic or hospital would refuse to comply with this mandate?

Answer 1

In the wake of the objections that covering contraception costs would violate some employers’ religious freedoms, interim final rules were published in August 2011 announcing that churches, but not religiously affiliated groups such as religious schools or hospitals, would be exempt from the contraception mandate . The interim final rules defined a religious employer eligible for exemption as “one that (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under the Internal Revenue Code” [4]. This narrow exemption appeased some, but left many religious employers seeking further accommodation.

A further compromise on institutional exemptions to the contraception mandate came from the federal government on February 10, 2012. The “Final Rule” provided a second level of exemptions. In addition to the complete exemption for churches and other employers who fell into the guidelines established in August 2011, HHS granted a further compromise to not-for-profit employers such as hospitals, universities, and charities that object on religious grounds to the provision of contraceptive services. Under the final rule, this second group of employers would not be forced to pay for contraceptives themselves. Instead, their insurance providers would directly pay for the services . To some, this compromise seemed hollow because it required religious employers to be complicit in behavior that they believed to be morally wrong . This compromise addresses neither self-insured nor for-profit companies with religious objections to contraception service.

The Current Status of the Mandate

Employers who do not believe that the compromise is sufficient have sued and will continue to sue the federal government. Because these cases are decided on an ad-hoc basis and affect individual companies rather than the general applicability of the contraception mandate in general, their outcomes have varied significantly. The lower court cases have affected individual companies but have not affected the general applicability of the contraception mandate. However, the December 18, 2012, opinion by the D.C. Circuit Court ushered in significant changes.