Ronit Y. Stahl,PhD; Holly Fernandez Lynch, JD, MBE
When the Obama administration included contraception in the essential benefits package to be covered by employer-sponsored health insurance plans under the Affordable Care Act, it sought to preserve access for women while addressing the concerns of employers with religious objections. Although the accommodations and exemptions were not enough for some employers, balance was the ultimate goal. This also was reflected in Zubik v Burwell, the Supreme Court’s most recent decision on the matter; on May 16, 2016, the justices remanded the litigants to the lower court so they could be afforded the opportunity to reach a compromise between religious exercise and seamless contraceptive coverage. No further compromise was forthcoming.
Now the Trump administration has rejected balance as a worthwhile goal.1 Its new contraceptive coverage rules, released on October 6, 2017, prioritize conscientious objection over access.2,3 The rules take effect immediately, and new legal challenges, this time on behalf of patients rather than objecting employers, have already begun.4 The new rules preserve the default requirement that employers must include free access to contraceptives as part of their insurance plans. However, the rules now exempt employers with religious or moral objections to contraceptives, without requiring any alternative approaches to ensure that beneficiaries can obtain contraceptives at no cost.2,3
Stahl RY, Lynch HF. Contraceptive Coverage and the Balance Between Conscience and Access. JAMA. Published online October 19, 2017. doi:10.1001/jama.2017.17086
Hannah C. Smith
Last Friday, the Trump administration revised rules implementing the Affordable Care Act in a way that expands protections for religious and moral objectors to the contraception mandate — achieving the common-sense balance that religious organizations have sought for the past six years. These revisions allow religious nonprofits — like the Little Sisters of the Poor — to avoid millions of dollars in fines because their employee health insurance plans exclude coverage for contraception, a practice contrary to Catholic doctrine on respecting human life.
Judging by some media hyperbole, however, you would think that the federal government had just abolished the ACA’s birth control mandate altogether. Headlines that claim the federal government’s move “reverses” or “scraps” or “ends” the mandate are all wrong.. . .The vast majority of women in America will continue to receive free birth control, and religious objectors will not be forced into providing services that violate their conscience. . . [Full text]
Not so long ago, President Trump’s new guidelines for the Department of Health and Human Services for protecting freedom of religious faith would have been superfluous and unnecessary. A casual observer might have read them in puzzlement, as if the government had reaffirmed its opposition to robbery or murder.
But all that was before the Obama administration sought to bring those of religious faith to heel, ordering employers to pay for contraception devices and abortion-inducing drugs, even if it violated the conscience of employers. Under pressure, the Obama administration grudgingly exempted churches from its mandate, but employers affiliated with religious groups still were required to pay through third-party administrators.
The new guidelines, drawn up by the U.S. Justice Department, change that. The order does not prohibit employers paying such benefits, and many employers will continue to do so. Nor will anyone be deprived by the government of their condoms, diaphragms and other birth-control devices. But “going forward,” as the cliche goes, an employer will not be required by the U.S. Government to violate his conscience for the convenience of those hostile to religious faith. . .[Full text]
WASHINGTON, Oct. 6, 2017 — Today the nation’s largest association of Christian health professionals, the 18,000-member Christian Medical Association (CMA, Christian Medical Association www.cmda.org) applauded the administration’s actions to restore conscience freedoms in healthcare. The administration took action concerning the Obamacare contraceptives mandate, insurance premiums used to pay for abortions, and regarding government respect for religious freedom.
“We are thankful to see these vital conscience freedoms restored in healthcare,” noted CMA Senior Vice President Gene Rudd, MD, and Ob-Gyn physician. “For millennia, medical ethics have provided for conscientious opposition to abortion by physicians who took up the practice of medicine as a healing art never to be used for the destruction of human life. And until recently, our government reinforced those ethical principles with conscience protections. We are heartened to see our government heading back in the direction of these vital freedoms that protect patients, medicine and freedom in our country.”
Jonathan Imbody, director of Freedom2Care (www.Freedom2Care.org), which is affiliated with CMA said, “As Americans who have inherited a nation founded upon freedom of faith, conscience and speech, we can agree that the government must never force individuals to violate their deepest held beliefs on vital and extremely controversial issues such as abortion. When our leaders forget these principles, and take to forcing nuns to participate in matters they consider wholly immoral, the American people realize that our fundamental freedoms are in jeopardy. If the government can take away the rights of one group, then no one is safe from government coercion.
“These actions today by the administration are an important step back in the direction of freedom and respect for one another, and we look forward to more actions in the future, including restoration of the conscience rule for health professionals that President Obama gutted.”
Contact: Margie Shealy, Christian Medical Association, 423-341-4254
Several organizations plan to sue over the change
WASHINGTON — Medical groups expressed disappointment in rules issued Friday by the Trump administration that rollback contraceptive coverage requirements put in place by the Obama administration.
The new rules were issued as “interim final” regulations, meaning that they will be implemented immediately. The rules allow employers to refuse to cover contraceptives for any moral or religious reason. It also no longer requires employers to allow their insurers or third-party administrators to provide separate coverage, instead calling that arrangement an “optional” accommodation.
Under the Affordable Care Act, employers were required to cover all forms of contraception with no co-pay. Certain religiously affiliated employers, such as churches or religious affiliated hospitals or universities, were exempted from this rule; however, once they signed paperwork stating that they did not want to provide coverage, the employer’s insurer or third-party administrator then had to provide that same coverage, with no co-pay, to employees who needed it. . .[Full text]
For immediate release
United States Department of Health and Human Services
The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.
Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief.
In May, President Trump issued an “Executive Order Promoting Free Speech and Religious Liberty” in which the President directed the Secretaries of Health and Human Services, Labor and the Treasury to consider amending existing regulations relative to Obamacare’s preventive-care mandate in order to address conscience-based objections.
Key Facts about today’s interim final rules:
- The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.
- The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections.
- These rules will not affect over 99.9% of the 165 million women in the United States.
- Current law itself already exempts over 25 million people from the preventive-care mandate because they are insured through an entity that has a health insurance plan that existed prior to the Obamacare statute.
- The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers.
- These regulations do not ban any drugs or devices.
- The mandate as defined by the previous administration suffered defeats in court after court, including the Supreme Court, which ruled that the government cannot punish business owners for their faith.
The IFR can be found here:
To find a fact sheet on the IFRs, visit: Religious and Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act
Contact: HHS Press Office
N Engl J Med 2014; 371:596-599 August 14, 2014 DOI: 10.1056/NEJMp1407965
I. Glenn Cohen, J.D., Holly Fernandez Lynch, J.D., M.Bioethics, and Gregory D. Curfman, M.D.
At the tail end of this year’s Supreme Court term, religious freedom came into sharp conflict with the government’s interest in providing affordable access to health care. In a consolidated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell (collectively known as Hobby Lobby) delivered on June 30, the Court sided with religious freedom, highlighting the limitations of our employment-based health insurance system.
Hobby Lobby centered on the contraceptives-coverage mandate, which derived from the Affordable Care Act (ACA) mandate that many employers offer insurance coverage of certain “essential” health benefits, including coverage of “preventive” services without patient copayments or deductibles. The ACA authorized the Department of Health and Human Services (HHS) to define the scope of those preventive services, a task it delegated to the Institute of Medicine, whose list included all 20 contraceptive agents approved by the Food and Drug Administration. HHS articulated various justifications for the resulting mandate, including the fact that many Americans have difficulty affording contraceptives despite their widespread use and the goal of avoiding a disproportionate financial burden on women. Under the regulation, churches are exempt from covering contraception for their employees, and nonprofit religious organizations may apply for an “accommodation,” which shifts to their insurance companies (or other third parties) the responsibility for providing free access. However, HHS made no exception for for-profit, secular businesses with religious owners. [Full text]
If people want to deny corporations a conscience, how can they ever again demand that corporations act morally, conscientiously?
Paul De Vries*
The Supreme Court was right to allow corporations to be exempt from the mandate to pay for abortion pills or contraception when their leaders have established religious reasons against them. Moral issues can stand as questions for the liberty of conscience – whether individual conscience or corporate conscience.
That liberty of conscience empowers individuals, religious institutions, and corporations – as the Supreme Court just now made clear on the last day of June! The protections of the liberty of conscience for years have allowed people with a track record of pacifism to be exempt from military service and also for hospital nurses and doctors who object to abortion to be scheduled for other surgeries only. “Conscientious objectors” have had a long, distinguished, respected, empowered history in America.
Oddly, those who attack a corporate right to choose allege that it is obvious that corporations do not have consciences – and so that they cannot be “conscientious objectors.” How are those attackers so blind? [Full text]
Christian Medical Association
Washington, DC – June 30, 2014 – The 15,000-member Christian Medical Association (CMA, www.cmda.org), the nation’s largest and oldest faith-based doctors’ organization, today praised the Supreme Court’s ruling in two Health and Human Services (HHS) Obamacare mandate cases but noted “increasing attempts by the government to coerce the faith community.” CMA had outlined the medical aspects underlying religious objections to the HHS Obamacare mandate in its friend of the court brief in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius.
CMA CEO Dr. David Stevens said in a statement, “We are very thankful that the Supreme Court acted to protect family businesses from government coercion and fines for simply honoring the tenets of their faith.
“This is a much-needed victory for faith freedoms, because this administration continues its assault on the values of the faith community. We are witnessing increasing attempts by the government to coerce the faith community to adopt the government’s viewpoint in matters of conscience,” noted Stevens.
CMA also filed a friend-of-the-court brief in another Supreme Court case this term, McCullen v. Coakley, to defend First Amendment free speech and assembly rights of pro-life advocates against a Massachusetts law that prohibited many citizens from entering a public street or sidewalk within 35 feet of an abortion facility.
“There seems to be growing intolerance of the faith community by some government officials who appear to want to extinguish the First Amendment freedoms that allow for a diversity of values,” Stevens observed, “We are seeing this antagonism expressed in coercive government mandates enforced with harsh penalties and discriminatory practices that threaten to eliminate the faith community from the public square.”
Dr. Stevens noted that the Obama administration recently launched another sweeping mandate that appears to target faith-based groups, requiring agreement with same-sex marriage as a condition of receiving federal grants. CMA’s Freedom2Care website (www.Freedom2Care.org) details other violations of faith and conscience rights:
American Center for Law and Justice
WASHINGTON, June 30, 2014 /PRNewswire-USNewswire/ — The American Center for Law and Justice (ACLJ), a pro-life legal organization that focuses on constitutional law, said today the Supreme Court issued a “landmark decision protecting religious freedom and freedom of conscience” in a 5-4 decision striking down the constitutionality of the ObamaCare HHS mandate, ruling that closely-held corporations cannot be required to provide contraception coverage for their employees.
“This is a landmark decision protecting religious freedom and freedom of conscience,” said Jay Sekulow, Chief Counsel of the ACLJ. “The court clearly recognized that closely-held corporations enjoy religious liberty rights just as they enjoy rights to free speech. American citizens do not lose their religious freedom when they form a corporation and try to live out their religious values in the conduct of their business. Moreover, the court – by holding that closely-held corporations cannot be forced to directly subsidize abortion-pills – dealt a severe blow to the Obama Administration’s ongoing assault on religious liberty and represents a significant setback to the abortion industry.”
The ACLJ filed an amicus brief urging the high court to reject the ObamaCare HHS mandate arguing that the mandate not only imposes “a very real and palpable injury” to those business owners affected but “substantially burdens their religious exercise” as well.
The ACLJ currently represents 32 individuals and corporations in seven pending actions against the government, including two cases currently pending before the high court. The ACLJ has obtained preliminary injunctive relief for its clients in all seven cases. Further, the ACLJ has represented 79 Members of Congress, filed more than a dozen amicus briefs, and stood up for hundreds of thousands who oppose the mandate.
Led by ACLJ Chief Counsel Jay Sekulow, the ACLJ is based in Washington, D.C. and is online at www.aclj.org.
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