The FAQs: Changes to the HHS Contraceptive-Abortifacient Mandate
Note: The FAQs is an ongoing TGC series in which we answer your questions about the latest news and current events.
TGC previously produced a list of frequently asked questions about the Obama administration's controversial contraception-abortifacient mandate. Since the Obama administration has proposed a rule change Friday it says will appease the concerns religious organizations have about the abortion/contraceptive mandate, we're updating that post to include more recent information. The newer updates are posted first with the original information posted below.
What changes has the Obama administration proposed to make to the mandate?
Under the proposed revision, the main change is that religious organizations will be allowed to offer employees a plan that does not directly cover contraceptives. According to the Washington Post, their health insurer will then automatically enroll employees in a separate individual policy, which stands apart from the employer's larger benefit package and only covers contraceptives. The religious organization would not "have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds."
With this change insurance companies, instead of religious institutions, will be required to cover abortifacients and contraceptives at no cost in their insurance policies. In other words, the insurer would be required to provide the services "free of charge" and pay for them out of their own pocket.
For organizations that self-insure, the revisions states:
With respect to self-insured group health plans, the eligible organization would notify the third party administrator, which in turn would automatically work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants. The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.
In other words, the American taxpayer will pay for the contraceptive-abortifacient policy for organizations that self-insure.
What's wrong with that compromise plan?
Opponents of the mandate consider the change an "accounting gimmick," arguing that the premiums they pay to a health insurer could ultimately end up paying for the contraceptives they opposed.
As economist Steve Landsburg explains, the proposed compromise does not really change the fact that the religious employers are still being forced to pay for the contraceptives-abortifacients:
[A]ll economists (and I hope everyone who's successfully completed a Principles course) understands that transferring the responsibility from employers to insurers amounts to transferring the cost from insurance buyers to insurance providers, which is to say that it's not a change in policy. One of the first and most important lessons we teach our students is well summarized by a slogan: "The economic burden of a tax is independent of the legal burden". Ditto for a mandated insurance purchase. It is not the law, but the underlying price-sensitivities of buyers and sellers, that determines where the burden ultimately falls.
Your president knows this. He's banking that you don't.
What other changes are included in the proposal?
In the original rule, the definition of a religious employer is one whose purpose is "the inculcation of religious values," and which both primarily employs and primarily serves people who share its religious faith." The narrow definition excluded a number of faith-based employers, including Christian colleges, religious hospitals, and religious charities. In the new proposal, the administration removed the language about serving and employing mostly people of the same faith and so has defined a religious employer by just referring to the IRS definition. As Yuval Levin notes,
This makes the rule less insulting to the American tradition of faith-based civil-society institutions, but as far as I can see it doesn't actually exempt from the rule's requirements any employers who weren't already eligible to be exempted. In fact, HHS says so plainly in today's rule: "this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules." It is still the case that essentially only houses of worship are exempted.
Additionally, to qualify for the proposal, an organization must self-certify that it "holds itself out as a religious organization," according to HHS. As the Baptist Press points out, "Ironically that could mean that many of the nation's leading pro-life organizations -- despite being non-profits -- won't qualify for the accommodation because they're technically not religious organizations."
What meaningful protections to religious liberty does the proposal offer?
None. "Today's proposed rule does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby," said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty. "The administration obviously realizes that the HHS mandate puts constitutional rights at risk. There would have been an easy way to resolve this—expanding the exemption—but the proposed rule expressly rejects that option."
The Becket Fund says the proposed rule fails to fix the HHS mandate's fundamental problems:
- The proposed rule provides no coverage for family businesses like Hobby Lobby.
- The proposed rule does not meaningfully expand the "church-only" exemption - which is the real relief that our clients are entitled to under our constitution.
- For other religious non-profits, HHS proposes a convoluted "accommodation" that may not resolve religious organizations' objections to being coerced into providing contraceptives and abortifacients to their employees.
- Finally, the long-awaited rule provides no concrete guidance for religious groups that are self-insured.
What is this contraception mandate everyone keeps talking about?
As part of the universal health insurance reform passed in 2010 (often referred to as "Obamacare"), all group health plans must now provide---at no cost to the recipient---certain "preventive services." The list of services includes sterilization, contraceptives, and abortifacient drugs.
If this mandate is from 2010, why are we just now talking about it?
On January 20, 2012, the Obama Administration announced that that it would not expand the exemption for this mandate to include religious schools, colleges, hospitals, and charitable service organizations. Instead, the Administration merely extended the deadline for religious groups who do not already fall within the existing narrow exemption so that they will have one more year to comply or drop health care insurance coverage for their employees altogether and incur a hefty fine
Is there a religious exemption from the mandate? If so, who qualifies for the exemption?
According to the Becket Fund for Religious Liberty, there is a "religious employer" exemption from the mandate, but it is extremely narrow and will, in practice, cover very few religious employers. The exemption may cover certain churches and religious orders that inculcate religious values "as [their] purpose" and which primarily employ and serve those who share their faith.
Many religious organizations---including hospitals, charitable service organizations, and schools---cannot meet this definition. They will be forced to choose between covering drugs and services contrary to their religious beliefs or cease to offer health plans to their employees and incur substantial fines.
"Not even Jesus' ministry would qualify for this exemption," they note, "because He fed, healed, served, and taught non-Christians."
Doesn't the mandate only apply to religious organizations that receive federal funding?
No. The mandate applies to religious employers even if they receive no federal funding.
When did the government begin requiring employer-insurance programs to pay for contraceptives?
According to the Becket Fund, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP).
After FEHBP---the largest employer-insurance benefits program in the country---set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.
When did the mandate take effect?
As of August 1, 2012, employers are required to offer abortion-inducing drugs, contraception, and sterilization for their employees. Employers are obligated to provide these services at no cost to their employees through their company's health insurance.
I thought Obamacare didn't begin until 2014?
The Patient Protection and Affordable Care Act (PPACA), often referred to informally as "Obamacare", began on March 23, 2010. Most major provisions are being phased in by January 2014 with the remaining provisions phased in by 2020.
If employers don't comply, what happens to them?
If employers don't change their plans, they will be hit with fines of up to $100 per employee per day. But if they stop providing health coverage, employers with more than 50 employees could be hit with an alternative fine of $2,000 per employee per year.
As the Heritage Foundation has noted, for many companies, the level of these fines would mean going out of business. Applying the $100 per employee per day fine to Hercules Industries---a family-owned business with 265 employees that is challenging the mandate in Colorado---would mean a fine of $795,000 per month ($100 per day x 30 days x 265 employees)---over $9.5 million per year.
However, if Hercules were to drop its health coverage, forcing its employees into government-run exchanges under Obamacare, it would face a fine of approximately $2,000 per employee per year ($2,000 x 265 employees), for a total of $530,000 per year.
Didn't a federal court put a stop to the mandate?
To date, of the 14 for-profit plaintiffs that have obtained rulings touching on the merits of their claims against the Mandate, 10 have secured injunctive relief against it.
Are legislators doing anything to overturn the mandate?
Republicans in Congress have vowed to undo the rule, and the Republican-led House has voted numerous times to overturn the Obamacare provisions. Senate Republicans also attempted to hold a vote to repeal the entire health care law, but Democrats objected and the legislation has stalled.
Why is the federal government dictating that contraceptives should be covered by insurance?
In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was added by Congress in 1978 in response to a Supreme Court decision holding that an employer's selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.
As the Beckett Fund notes, "Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives." The federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate.
But what about the First Amendment protections? Isn't such a requirement inherently unconstitutional?
In Employment Division v. Smith, the Supreme Court announced that the First Amendment's free exercise clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability,'" simply because "the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." According to the Becket Fund this means that the fact that an act infringes on the religious beliefs or regulates the religiously motivated policies of a religious institution does not necessarily make the law unconstitutional.
Isn't this just a Catholic issue?
No. Although the Catholic Church has been the most vocal opponent of the mandate, many Protestant, Jewish, and Muslims also oppose the mandate. In fact, several evangelical leaders have called on evangelicals to stand with Catholics in civil disobedience to this law. Additionally, 300 academics and religious leaders---including TGC's D.A. Carson and Justin Taylor---signed a statement by the Beckett Fund explaining why the mandate is "unacceptable."
What is the Catholic Church's position on contraception?
The Catholic Church has always opposed contraception. In response to the then newly invented birth control pill, Pope Paul VI issued the encyclical letter Humanae Vitae ("Human Life"), which reemphasizes the Catholic Church's teaching that it is always intrinsically wrong to use contraception to prevent new human beings from coming into existence.
What is the mainline Protestant and Evangelical position on contraception?
As on most issues related to the faith, opinions among Protestant denominations vary.
Historically, the church has viewed contraception as evil. The Church Fathers and early Reformers were consistent in their opposition to birth control. Martin Luther said that contraception was "far more atrocious than incest or adultery" and John Calvin considered it "doubly monstrous" because it "extinguish[es] the hope of the race" and acts "to kill before he is born the hoped-for offspring."
Most Protestant denominations shared this view until the 1930s. However today, few denominations---whether Mainline or Evangelical---actively oppose the practice.
I don't oppose contraceptives, so why should I care about this issue?
There are two reasons that all Christians, regardless of their view on contraceptives, should be concerned about this mandate.
The first is because it forces Christians to pay for abortion-inducing drugs. The policy currently requires coverage of Ulipristal ("Ella"), which is chemically similar to the abortion drug RU-486 (mifepristone) and has the same effect (to prevent embryos from being implanted or, if already implanted, to die from lack of nutrition). Additionally, RU-486 is also being tested for possible use as an "emergency contraceptive." If the FDA approves it for that purpose, it will automatically be included under the mandate.
The second is that it restricts religious liberty by forcing religious institutions to pay for contraceptives and abortifacients even if the employer has a religious or moral objection to such practices.
Okay, while it may be a pro-life concern, it isn't a religious liberty issue for me since I support the use of contraception, right?
If the mandate is allowed to stand it will set a precedent that the government can not only force citizens to violate their most deeply held beliefs but that we can be sanctioned for refusing to do so.
As John Leo notes, today it is contraceptives and abortifacients, but "down the road it will be about suicide pills, genetic engineering, abortion and mandatory abortion training, transgender operations, and a whole new series of morally problematic procedures about to come over the horizon."
Indeed, as Leo notes in his column, a Catholic-run California hospital was sued because it refused to perform breast-enlargement surgery on a transgendered patient. The state court ruled the hospital had violated the state's anti-discrimination laws. (Caving under litigation, the hospital paid $200,000 to the transgendered man.)
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