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Protection of Conscience Project

Service, not Servitude
Legal Commentary

United States Conference of Catholic Bishops

Comment on Interim Final Rules

Regulation 45 CFR Part 147 (2011)

I. The HHS Mandate

A. Our prior comments urging HHS to limit the "preventive services" mandate

B. The HHS mandate is unprecedented

C. . . . the HHS mandate violates federal laws and public assurances

1. Violation of the Weldon Amendment.

2. Violation of PPACA § 1303(b)(1)(A).

3. Violation of PPACA § 1303(c)(1).

4. Violation of Public Assurances Against Mandatory Coverage of Abortion.

D. . . . violates the Religion and Free Speech Clauses of the . . . Constitution.

1. Religious Discrimination.

2. Interference with Church Governance.

3. "Substantial Burdens" That Trigger Strict Scrutiny.

4. Compelled Speech.

5. Expressive Association.

E. The HHS mandate violates the Religious Freedom Restoration Act.

F. The HHS mandate violates the Administrative Procedure Act.

II. The HHS Exemption

A.  . . . is narrower than the exemptions in the vast majority of states

B.  . . .  is narrower than any other religious exemption in federal health care law.

C.  . . .unclear whether exemption applies to sterilization

D.  . . .fails to encompass any individuals and most institutions

E.  . . .  violates the Religion Clauses of the First Amendment.

F.  . . . violates the Administrative Procedure Act.

III. Conclusion
Addendum A:
Addendum B:

I. The HHS Mandate

Although HHS has not requested comments on this topic, we urge HHS, in the strongest possible terms, to reconsider its decision to include contraceptives (including abortifacients) and sterilization among the "preventive services" that insurers will be forced to cover. That critical change is appropriate for the following reasons.

A. Our prior comments urging HHS to limit the "preventive services" mandate to services that promote health and prevent disease should be revisited and have been reinforced by subsequent scientific studies.

In our comments last year, we explained why HHS should not includecontraceptives in any list of mandated "preventive services." We attach thoseearlier comments, marked as Addendum A, and incorporate them by reference intothe present set of comments so they may be considered anew.3

Many of our previous observations about contraceptives are equally applicable to sterilization. Subjecting a person to drugs and procedures that render a healthy bodily system dysfunctional-in this case, making a woman temporarily or permanently infertile-is not properly seen as basic health care, much less as an appropriate candidate for mandatory health coverage. Indeed, many contraceptive drugs, far from preventing disease and injury, are associated with adverse health outcomes. Just as these drugs are not "health" services, they are not "preventive"services; they prevent (or abort) pregnancy, and pregnancy is not a disease. Our earlier comments addressed this at some length.

In the brief time since those comments, additional studies have been published which suggest that newer hormonal contraceptives may increase women's risk of blood clots to a greater extent than earlier drugs,4 and that taking hormonal contraceptives is associated with an increased risk that women will both contract and transmit HIV.5 Yet screening and counseling to prevent HIV infection is a widely accepted element in HHS's list of "preventive services" for women. Mandating coverage for drugs that can increase this risk places the interim final rule at war with itself.

B. The HHS mandate is unprecedented at the federal level and the most radical among the States.

At the federal level, the HHS mandate is an utter novelty. Until now, no federal law of any kind, or at any time, has required private health plans to cover contraceptives or sterilization. Efforts to pass such a law in Congress have consistently failed.6

When compared with the laws of the 50 states, the HHS contraceptive mandate is the most radical in the Nation. A substantial number of states (at least 22) have no contraceptive mandate whatsoever. Of the 28 states with some type of contraceptive mandate,7 none is as sweeping as the one adopted by HHS:

• First, no state requires coverage of contraceptives in all plans. State contraceptive mandates generally exclude self-insured and ERISA plans.

• Second, no state (except California and Georgia) mandates contraceptive coverage in plans that have no prescription drug coverage.

• Third, no state (except Vermont) requires coverage of sterilization.

Thus, the requirement that all plans cover contraceptives (including "emergency contraceptives") and sterilization is not only unprecedented in federal law, but far more sweeping than any state law. The fact that a mandate of such scope has not commanded the support of any legislature in this country is a telling commentary on how radical the HHS mandate is, and how far removed it is from legislatively-enacted public policy throughout the Nation.8

C. By requiring coverage of drugs that can cause abortion, the HHS mandate violates the Weldon amendment, PPACA's own abortion and non-preemption provisions, and the Administration's own assurances that PPACA would not be construed to require coverage of abortion.

The HHS mandate requires coverage of "all FDA-approved contraceptives."HHS claims in a fact sheet that the mandate does "not include abortifacient drugs."9 However, the regulation itself, which obviously takes precedence over any governmental "fact sheet," contains no such exclusion. Moreover, studies show that at least one drug approved by the FDA for "contraceptive use," a close analogue to the abortion drug RU-486 (mifepristone), can cause an abortion when taken to avoid pregnancy.10 And the prospect remains that other drugs, approved now or in the future by the FDA for contraceptive use, will be shown to have a similar effect.

1. Violation of the Weldon Amendment.

Insofar as the HHS mandate requires coverage of any drug that operates to cause an abortion, it violates the Weldon amendment, which has been included in every Labor/HHS appropriations law since 2004.11 The amendment states that "None of the funds made available inthis Act [i.e., the Labor/HHS appropriations bill from which HHS derives its funding] may be made available to a Federal agency or program … if such agency… [or] program … subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not … pay for … [or] provide coverage of … abortions" (emphasis added). The term "health care entity" is defined by the Weldon amendment to include "a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan."

By operation of the Weldon amendment, no Labor/HHS funds may be made available to HHS if it subjects any health care plan to discrimination on the basis that the plan does not provide coverage of abortions. Obviously, to require that all plans cover any form of abortion is the most direct form of abortion-based discrimination one could imagine against plans that would exclude abortion coverage. Thus, insofar as the HHS contraceptive mandate requires coverage of any drug that can cause an abortion, it violates the Weldon amendment.12

2. Violation of PPACA § 1303(b)(1)(A).

Insofar as it requires coverage of abortifacient drugs, HHS's contraceptive mandate also violates the abortion and non-preemption provisions of the Patient Protection and Affordable Care Act ("PPACA" or "Act"). Section 1303(b)(1)(A) of PPACA states that "nothing in this title"-i.e., title I of the Act, which includes the provision dealing with "preventive services"-"shall be construed to require a qualified health plan to provide coverage of [abortion] services … as part of its essential health benefits for any plan year." As Section 1303 goes on to state, it is "the issuer" of a plan that "shall determine whether or not the plan provides coverage" of abortion services. Thus,under PPACA, it is not HHS that has the authority to decide whether a plan covers abortion, but the plan issuer.

There is no indication in the text or legislative history of PPACA that Congress intended, on the one hand, to bar the mandatory coverage of surgical abortion, but to permit the mandatory coverage of so-called medical (i.e., drug induced) abortion. Indeed, Congress itself drew no distinction between surgical and medical abortion when, in PPACA, it decided to give plans the discretion whether or not to cover abortion. If HHS were to impute this senseless distinction to Congress, it would construe the law unreasonably.

3. Violation of PPACA § 1303(c)(1).

Insofar as the HHS mandate requires coverage of any such drug, it also conflicts with State laws in at least 11 states that restrict abortion coverage in all plans or in all exchange-participating plans.13 Section 1303(c)(1) of PPACA states that nothing in the Act preempts, or has any effect on, any State law regarding abortion coverage. Accordingly, the HHS mandate, as applied to any drug that can cause abortion, is invalid where it conflicts with any state law restricting abortion coverage.

4. Violation of Public Assurances Against Mandatory Coverage of Abortion.

Finally, the mandate violates the Administration's public assurances,both before and after enactment of PPACA, that the Act would not be construed to require coverage of abortion. Such assurances played a major role in securing final passage of the bill, and were formalized in an Executive Order issued by thePresident. See Executive Order 13535, "Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient Protection and AffordableCare Act," 75 Fed. Reg. 15599 (Mar. 24, 2010). Any federal mandate to require such coverage now in regulations implementing PPACA would run afoul of the Administration's previously-stated position on this issue.

Thus, if HHS were to decline to rescind the mandate entirely, then it wouldviolate the Weldon amendment, PPACA, and the Administration's own statedpolicy, unless it excluded from the mandate any drug that can cause an abortion.

D. The HHS mandate violates the Religion and Free Speech Clauses of the United States Constitution.

The HHS mandate violates several distinct protections under the Religionand Free Speech Clauses of the First Amendment:

(1) Free Exercise and Establishment Clause protections against laws that discriminate based on religion;

(2) Free Exercise and Establishment Clause protections against laws that interferewith internal governance of religious institutions;

(3) Free Exercise protections against laws that impose "substantial burdens" on religious exercise

(a) pursuant to a system of "individualized exemptions," or

(b) in conjunction with other fundamental rights (so-called "hybrid rights");

(4) Free Speech protections against compelled speech; and

(5) Free Speech protections of expressive association.14

1. Religious Discrimination.

The contraceptive mandate is a "religious gerrymander" that targets Catholicism for special disfavor sub silentio and therefore violates both the Free Exercise and Establishment Clauses of the First Amendment. Though neutral on its face, "the effect of [the mandate] in its real operation is strong evidence of its object." Church of the Lukumi Babalu Aye v.City of Hialeah, 508 U.S. 520, 535 (1993). Before the mandate, insurers were free to issue plans covering contraception and sterilization (or not); employers were free to sponsor, and usually subsidize, plans with this coverage (or not); and employees were free to choose this coverage and pay for it through their premiums (or not).  As a result of this freedom, not only was religious conviction accommodated among all these stakeholders, but coverage for contraception and sterilization was very widespread.15

HHS would nonetheless force those few who would object to selling,buying, or brokering the coverage to do so.16 In other words, the class that suffers under the mandate is defined precisely by their beliefs in objecting to these"services." Moral opposition to all artificial contraception and sterilization is a minority and unpopular belief, and its virtually exclusive association with the Catholic Church is no secret. Thus, although the mandate does not expressly target Catholicism, it does so implicitly by imposing burdens on conscience that are well known to fall almost entirely on observant Catholics-whether employees,employers, or insurers. Such religious discrimination is forbidden by both the Free Exercise and Establishment Clauses of the First Amendment. See, e.g., Lukumi, 508 U.S. at 532 (Free Exercise Clause); Larson v. Valente, 456 U.S. 228, 244-45(1982) (Establishment Clause).17

2. Interference with Church Governance.

In a well-established line of cases under both Religion Clauses, the Supreme Court has acknowledged the"power [of churches] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. St.Nicholas Cathedral, 344 U.S. 94, 116 (1952).18 It is difficult to imagine a more intrusive form of state interference in church governance than laws forcing churches as employers (save those few excepted) to purchase for, and then provide without charge to, their employees services that violate the religion's own moral rules. It is no less problematic when church insurers-mutual aid societies that come into existence precisely to protect a religious community and its members-are forced to sell coverage that violates the community's own rules. If the state forces church institutions to violate their own moral rules, then their governance structure is damaged not only by the immediate compulsion, but also by severely compromising that church's ability to enforce those same rules internally in the future. HHS should avoid this unprecedented-and unconstitutional-interference with the ability of the Church to govern itself and its institutions.

3. "Substantial Burdens" That Trigger Strict Scrutiny.

In Sherbert v.Verner, 374 U.S. 398 (1963), the Supreme Court construed the Free Exercise Clause generally to forbid "substantial burdens" on religious exercise, unless they satisfy strict scrutiny. Id. at 403. But in Employment Division v. Smith, 494 U.S.872 (1990), the Supreme Court distinguished Sherbert, narrowing the application of the "substantial burdens" test to two, more limited circumstances:

(a) where the burdens are applied pursuant to an "individualized governmental assessment of the reasons for the relevant conduct," id. at 884; and

(b) where the burden involves a"hybrid situation" implicating other constitutional protections, such as the freedoms of speech or association, id. at 881-82.

Both circumstances are present here, creating two independently sufficient violations of the Free Exercise Clause. The HHS mandate imposes "substantial burdens" on the religious exercise of Catholic employers, employees and insurers with moral and religious objections to contraception and sterilization; those burdens trigger strict scrutiny because they are imposed both pursuant to a system of "individualized exemptions," and in a manner that involves "hybrid rights"; and those burdens are not justified by a "compelling state interest."

A "substantial burden" is imposed, at a minimum, where the law forces a person or group "to choose between following the precepts of [their] religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of [their]religion in order to accept [government benefits], on the other hand." Sherbert,374 U.S. at 404. This threshold is far exceeded here, because church employees,employers, and insurers must choose between religious observance and the violation of a regulatory mandate-not the mere loss of a government benefit.

HHS has imposed that burden pursuant to a "mechanism for individualized exemptions," Smith, 494 U.S. at 884. Indeed, the burdens would not be imposed at all, if not for a series of discretionary decisions by HHS-first to construe"preventive services" to include contraception and sterilization, and so to impose a burden almost exclusively on Catholics; then to establish the narrow, four-part exemption for a subset of religious employers, drafted by the ACLU for the California legislature; and then to apply that exemption on a case-by-case basis to exclude an employer. This stands in stark contrast to the kind of across-the-board rules that the Court in Smith was so concerned to insulate from constitutional challenge in cases where they happen to burden religious exercise.

The mandate also burdens religious exercise in a manner that implicates other fundamental rights, creating a "hybrid situation" that also triggers strict scrutiny under Smith. As discussed further below, the mandate compels expression by, and interferes with the expressive association of, religious insurers and employers, who are forced to offer for sale and to sponsor services that they exist in part to oppose.

Finally, the burdens are not "narrowly tailored" to serve any "compellingstate interest." The particular "preventive services" at issue are not life-saving, and do not even prevent disease; they are designed to prevent the healthy state of pregnancy, and can actually introduce health risks. Moreover, "a law cannot be regarded as protecting an interest 'of the highest order' ... when it leaves appreciable damage to that supposedly vital interest unprohibited." Lukumi, 508U.S. at 546. The law at issue here, at a minimum, admits of a construction that allows no advancement at all of the interest of maximizing coverage for contraception and sterilization, as HHS is entirely free not to declare them"preventive services." In other words, if Congress did not even see fit to make explicit that these "services" should be included within the mandate, HHS's decision to include them cannot fairly be said to serve a "compelling state interest."

And even if the interest were somehow "compelling," the law is not"narrowly tailored" to serve that interest. If the mandate remains in place, it seems entirely probable that many individuals and organizations, instead of purchasing and sponsoring plans, will feel obliged in conscience to do precisely the opposite by dropping coverage altogether, rather than compromising their religious and moral beliefs. Thus, the mandate is not well tailored to the goal of expanding access to coverage, because it encourages individuals and organizations to drop coverage.19

4. Compelled Speech.

The HHS mandate also interferes with the right of free speech. It does so by coercing many conscientious objectors, including but not limited to religious organizations, to subsidize-and thereby endorse-conduct that they teach or otherwise state is wrong. See, e.g., Keller v. State Bar of California, 496 U.S. 1 (1990) (holding that state bar members could not be compelled to finance political and ideological activities with which they disagree);Abood v. Detroit Board of Education, 431 U.S. 209 (1977) (holding that state employees could not be required, consistent with the First Amendment, to provide financial support for ideological union activities unrelated to collective bargaining).

When a religious organization in particular pays for private conduct, the inescapable message is that it does not disapprove of that conduct. As noted above, a religious organization cannot communicate an effective message that conduct is morally wrong at the same time that it subsidizes that conduct. In particular, Catholic organizations cannot effectively and persuasively communicate the Church's teaching that contraception and sterilization are immoral if they simultaneously pay for contraceptives for their employees or (in the case of colleges and universities) for their students.

In short, the First Amendment protects the right of these church entities "to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable." Wooley v. Maynard, 430 U.S. 705, 715 (1977).  The HHS mandate violates this bedrock principle.

5. Expressive Association.

In Boy Scouts of America v. Dale, 530 U.S.640 (2000), the Court held that the Scouts' "freedom of expressive association"under the Free Speech Clause prevented the government from enforcing its public accommodations law to require the inclusion of a gay assistant scoutmaster. Id. at648. The Court held that compelling the Scouts to admit Dale into a leadership position would "force the organization to send a message, both to the youth members and the world, that the [organization] accepts homosexual conduct as a legitimate form of behavior." Id. at 653.

Similarly, in Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515U.S. 557 (1995), a unanimous Court held that the organizers of a St. Patrick's Day parade had a First Amendment right to exclude a gay and lesbian group whose presence was thought to communicate a message about homosexual conduct to which the organizers objected. The parade organizers had that right even though they had no particular message on the subject that they wished to convey-only a preference "not to propound a particular point of view." Id. at 575. Again, the"principle of speaker's autonomy" prevailed. Id. at 580.

Church organizations have an even stronger right than the parade organizers and Boy Scouts to join together in an organization that reflects a particular set of beliefs; they have the additional protection of the Religion Clauses. And if nonreligious organizations have a constitutional right to exclude individuals whose mere presence was thought by those groups to send a message that they did not like, then how much clearer the right of a church organization not to subsidize conduct that contradicts its teaching.

The compelled subsidization in this case strikes at the heart of the Church's ability to communicate its unambiguous commitment to basic moral teachings and to form associations that maintain their adherence to those teachings. The Free Speech Clause forbids such compulsion, and so HHS should avoid it.

E. The HHS mandate violates the Religious Freedom Restoration Act.

The Religious Freedom Restoration Act ("RFRA") requires that strict scrutiny be applied to any action of the federal government that substantially burdens the exercise of religion. 42 U.S.C. 2000bb-1(c). For the reasons noted above, see supra  Section I.D.3., the mandate triggers and fails strict scrutiny and therefore violates RFRA.

F. The HHS mandate violates the Administrative Procedure Act.

Because the HHS mandate violates the Constitution and RFRA, it is not inaccordance with law. It therefore violates the Administrative Procedure Act. 5U.S.C. § 706 (authorizing a court to "hold unlawful and set aside agency action"that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordancewith law").20

Having addressed the legal flaws in the HHS mandate, we turn next to the legal defects in the exemption.

II. The HHS Exemption
A. The HHS exemption is narrower than the exemptions in the vast majority of states with contraceptive mandates.

HHS claims that its exemption is "based on existing definitions used bymost States" that have a religious exemption from a contraceptive mandate. 76 Fed. Reg. at 46623 (emphasis added). The claim is demonstrably false. As noted below, the HHS exemption is in place in only three states,21 and most states with religious exemptions to a contraceptive mandate have broader exemptions.

Under the interim final rule, a "religious employer" is exempt from the HHS mandate if it is an organization that meets all of the following criteria:

(a) its purpose is the inculcation of religious values,

(b) it primarily hires persons who share the organization's religious tenets,

(c) it primarily serves person who share those tenets, and

(d) it is a nonprofit as described in sections 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.22

This language is virtually identical to the religious employer exemption in California's contraceptive mandate, which was drafted by the ACLU.23 Notably,the ACLU has taken the view that "[a]mong health care institutions, Christian Science sanatoria may exemplify those that should qualify for a religious exemption" from mandates like those at issue here, because they "are staffed by Christian Science healers, and they attend only to those seeking to be healed exclusively through prayer." Catherine Weiss, et al., ACLU Reproductive Freedom Project, Religious Refusals and Reproductive Rights 10 (2002). Thus, the ACLU assures us,"[s]uch institutions generally conform to the definition set out in the 'religious employer' exemption to California's contraceptive equity law." Id. Far from being used in "most states," this language is well outside the mainstream and is ill suited to nationwide application.

It is important to note that almost half the states have no contraceptive mandate, and therefore leave people and institutions free to buy, sponsor, or sell health coverage without contraception and sterilization. Moreover, as HHS acknowledges (76 Fed. Reg. at 46623), most states with a contraceptive mandate have some kind of religious exemption.24 Nineteen states have an exemption from  a state contraceptive mandate.25 Of those 19 states:

• Only three have a religious exemption that is as narrow as the one set outin the interim final rule.26

• Twelve states have a broader exemption.27

• Twelve states do not require that the exempt organization's purpose be theinculcation of religious values.28

• Twelve states do not require that the exempt organization primarily hirepersons who share the organization's religious tenets.29

• Thirteen states do not require that the exempt organization primarily servepersons who share those tenets.30

• Sixteen states do not require that the exempt organization satisfy the taxcode criteria set out in the fourth prong of the HHS exemption.31

Thus, the exemption set out in the interim final rule is among the narrowest in the Nation. It is as if HHS asked: "Which state has the narrowest conscience exemption from a contraceptive mandate?"; and then proceeded to adopt that exemption as the one that will govern in all 50 states.

B. The HHS exemption is narrower than any other religious exemption in federal health care law.

Congress has consistently supported conscience protection with respect to health services. Family planning policy is just one illustration of this policy. For example, every year since 1986, Congress has prohibited discrimination against foreign aid grant applicants who offer only natural family planning on account of their religious or conscientious convictions.32 Every year since 1999, Congress has exempted religious health plans from a contraceptive coverage mandate in the federal employees' health benefits program, and prohibited other health plans in this program from discriminating against individual health professionals in the plan who object to prescribing or providing contraceptives on moral or religious grounds. 33 Every year since 2000, Congress has affirmed its intent that a conscience clause protecting religious beliefs and moral convictions be a part of any contraceptive mandate in the District of Columbia.34

Federal conscience protections are not limited to abortion and contraceptives. The Church amendment protects conscientious objection to sterilization (42 U.S.C. §§ 300a-7(b), 300a-7(c)(1), and 300a-7(e)) and, in programs funded or administered by HHS, to any health service to which there is a moral or religious objection (42 U.S.C. §§ 300a-7(c)(2) and 300a-7(d)). Congress has required that the Medicare and Medicaid statutes not be construed to require Medicare + Choice or Medicaid managed care plans to provide counseling and referral services to which they have a moral or religious objection. 42 U.S.C.§ 1395w-22(j)(3)(B) (Medicare); 42 U.S.C. § 1396u-2(b)(3) (Medicaid).

Similar protections have been adopted by regulation. See, e.g., 48 C.F.R.§ 1609.7001(c)(7) (stating that in the federal employees' health benefits program,"[p]roviders, health care workers, or health care plan sponsoring organizations are not required to discuss treatment options that they would not ordinarily discuss in their customary course or practice because such options are inconsistent with their professional judgment or ethical, moral or religious beliefs").35 HHS itselfrecognizes that plans may not always provide particular services because or moral or religious objections. See, e.g., 42 C.F.R. § 438.52 (contemplating circumstances in which a plan or provider "does not, because of moral or religious objections, provide the service the enrollee seeks").

Even if these and similar provisions are not directly applicable to the interimfinal rule, they underscore a consistent federal policy to protect the conscience rights of participants in the market for health services and health coverage. The interim final rule deviates from that policy by ignoring the conscience rights ofstakeholders with religious or moral objections to contraceptives and sterilization.

C. It is unclear whether the HHS exemption even applies to sterilization and/or counseling and education about sterilization.

The interim final rule states that the Health Resources and Services Administration ("HRSA") "may establish exemptions from [its] guidelines … with respect to any requirement to cover contraceptive services under such guidelines."76 Fed. Reg. at 46626 (emphasis added). The preamble reiterates that HRSA has the discretion to exempt religious employer from the guidelines "where contraceptive services are concerned." Id. at 46623 (emphasis added).

It is unclear whether HHS considers sterilization to be a "contraceptive service." As a result, it is uncertain whether the exemption even applies to sterilization or related counseling and education, as HRSA lists sterilization as a distinct service. This is a serious oversight, because sterilization ordinarily disables a woman's fertility permanently, therefore prompting especially important concerns from the viewpoint of medical ethics and government policy. Congress decided long ago that certain enumerated Acts of Congress should not be construed to require participation in sterilization. 42 U.S.C. § 300a-7.

The lack of clarity may have been a mere oversight but, left unaddressed, raises a question of unconstitutional vagueness. If HHS rejects our urgent plea torescind the mandate, it should create an exemption that will adequately protect the right of all stakeholders not to offer or purchase coverage for contraceptives,sterilization, or related counseling and education. An exemption that applies only to some of these stakeholders, or some of these "services," is plainly inadequate.

D. The HHS exemption fails to encompass any individuals and most institutions with moral or religious objections to contraception or sterilization.

Until now, no federal law has prevented private insurers from accommodating purchasers and plan sponsors with moral or religious objections to certain services. Plans were free under federal law to accommodate those objections by allowing purchasers to choose not to buy coverage for gender change surgery, contraceptives, in vitro fertilization, or other procedures that the purchaser or sponsor found religiously or morally problematic. Likewise, federal law did not forbid any insurer, such as a religiously-affiliated insurer, to exclude from its plans any services to which the insurer itself had a moral or religious objection. Indeed,the freedom to exclude morally objectionable services has sometimes been stated affirmatively in federal law. For example, as noted above, the Federal Employees Health Benefits Program expressly allows health plans which exclude contraceptive coverage to be offered to federal employees if the carrier has areligious objection to such coverage.

Under the interim final rule, this will no longer be true. For the first time under federal law, HHS will require all plans (except grandfathered plans, for as long as they retain their grandfathered status) to include coverage for contraceptives and sterilization. Individuals with a moral or religious objection tothese items and procedures will now be affirmatively barred by the HHS mandate from purchasing a plan that excludes those items. Religiously-affiliated insurers with a moral or religious objection likewise will be affirmatively barred from offering a plan that excludes them to the public, even to members of their own religion. Secular organizations (insurers, employers, and other plan sponsors) with a moral or religious objection to coverage of contraceptives or sterilization will be ineligible for the exemption. And any religious organization that does not meet HHS's exceedingly crabbed definition of "religious employer" will also be affirmatively barred from purchasing such a plan even for its own employees.

This last point requires some elaboration. The HHS exemption, applicable nationwide, forces all church institutions with an outreach-oriented mission to provide health coverage for items that the institutions themselves hold and teach to be immoral, in violation of their institutional identity and sincerely held beliefs. The HHS exemption would penalize church organizations that engage in public ministry or service, by forbidding them to practice what they preach. This represents an unprecedented intrusion by the federal government into the precincts of religion that, if unchecked here, will support ever more expansive and corrosive intrusions in the future.

Just as alarming as the fact of HHS's intrusion into the precincts of religious organizations is the manner in which HHS has accomplished the intrusion, namely, by defining certain religious organizations as, in effect, "not religious enough"-and therefore not entitled to any exemption from the mandate-based on who they serve, how they constitute their workforce, and whether "inculcation of religious values" is "the purpose" of the agency. HHS has concluded, for example, that a church is not a religious employer if it

(a) serves those who are not already members of the church,

(b) fails to hire based on religion, or

(c) does not restrict its charitable and missionary purposes to the inculcation of religious values.

Under such inexplicably narrow criteria-criteria bearing no reasonable relation to any legitimate (let alone compelling) government purpose-even the ministry of Jesus and the early Christian Church would not qualify as "religious," because they did not confine their ministry to their co-religionists or engage only in a preaching ministry. In effect, the exemption is directly at odds with the parable of the Good Samaritan, in which Jesus teaches concern and assistance for those in need, regardless of faith differences. While the federal government can distinguish between a church and a secular entity for purposes of accommodating religion, the government has no business engaging in religious gerrymanders, whereby some churches are "in" and others are "out" for regulatory purposes based on who their teaching calls them to serve, how they constitute their workforce, or whether they engage in "hard-nosed proselytizing." University of Great Falls v. NLRB, 278F.3d 1335, 1346 (D.C. Cir. 2002). See also Colorado Christian Univ. v. Weaver,534 F.3d 1245, 1257-60 (10th Cir. 2008).

By taking a view of religion that is stingier than any ever placed into federal law, HHS would pressure a large number of religiously-affiliated organizations with conscientious objections to contraceptives and sterilization-including religiously-affiliated social service agencies, hospitals, colleges and universities-either to provide coverage for these, or to drop health coverage altogether. This would include the freestanding plans that religiously-affiliated colleges and universities offer their own students.36

E. The HHS exemption violates the Religion Clauses of the First Amendment.

As discussed in the preceding section, the HHS exemption does not apply to individuals, insurers, and many other stakeholders with a religious or moral objections to contraception or sterilization. At to those stakeholders, the mandate continues to suffer from the same constitutional and statutory defects that we described previously.37

In addition, each prong of the four-pronged exemption is constitutionally problematic, and the exemption itself, like the mandate, violates the Religion Clauses of the First Amendment.

First, the government constitutionally may not "troll through a person's or institution's religious beliefs" to determine whether its purpose is to inculcate "religious values." Univ. of Great Falls, 278 F.3d at 1341-42; see also Colo.Christian Univ.¸ 534 F.3d at 1261-66. Nor may the government constitutionally limit an exemption solely to religious institutions that engage in "hard-nosedproselytizing." Univ. of Great Falls, 278 F.3d at 1346. Many religious organizations are not engaged in proselytizing when they deliver social, medical, psychological, and educational services, but they provide these services precisely for religious and moral reasons.

Second, the government may not decide that organizations are sufficiently "religious" only if they primarily serve and employ their co-religionists. In effect,HHS is purporting to distinguish between religious denominations and organizations that are, so to speak, insular in their workplace and ministry, and those that have a missionary outlook. This is blatantly unconstitutional.38 Church agencies with the temerity (in the government's view) to hire and serve persons other than their own members are penalized by the HHS exemption or,alternatively, forced to fire non-members and withdraw from or limit public service. Such a forced choice is offensive, discriminatory, and unconstitutional under the Religion Clauses. The second and third prongs are also problematic from a practical standpoint, because they require religious organizations to make potentially intrusive inquires into the religiosity of all their job applicants and clients.

Finally, the last prong of the exemption, which tracks certain of the annual Form 990 exemptions available under section 6033 of the Internal Revenue Code, is constitutionally defective because it bears no rational relationship to the purpose of either the mandate or the exemption.

Some explanation is necessary. The Form 990 filing requirement-the requirement from which section 6033(a)(2)(A)(i) and (iii) carve out exemptions-serves a two-fold purpose: it provides IRS with information necessary to the administration of the tax laws, and it makes tax-exempt organizations financially accountable to the IRS and the general public. This federal exemption from filing the annual Form 990 reflects Congressional sensitivity to the church-state entanglement issues inherent in mandating financial reporting and accountabilityon the part of churches and religious organizations. The exemption is an attempt to strike a balance between the requirements of tax administration, on the one hand, and the desire to avoid unnecessary entanglement in the financial affairs of certain organizations closely affiliated with churches on the other. The filing exemption, however, has no relevance whatsoever to church welfare or benefit plans, having been devised, as noted above, to serve an entirely different purpose.

Ironically, in deciding to track certain of the Form 990 filing exemptions, HHS overlooked another exemption that was developed specifically to accommodate pension and welfare plans offered by churches, namely the "churchplan" exemption found in section 414(e) of the Internal Revenue Code. 26 U.S.C.§ 414(e). Congress exempted "church plans" from the Employee Retirement Income Security Act of 1974 ("ERISA"), see 29 U.S.C. § 1002(33), and in 1980 broadly defined "church plan" to include any pension or welfare plan that covers employees of a church or tax-exempt organization associated with a church. See Multiemployer Pension Plan Amendments Act of 1980, Pub. L. 96-364. The term"associated with a church" is defined expansively to include any organization that shares common religious bonds and convictions with a church. 26 U.S.C.§ 414(e)(3)(D); 29 U.S.C. § 1002(33)(c)(4). Under this exemption, the employees of church agencies-including social welfare organizations, adoption agencies, hospitals, universities, and nursing homes, to name but a few-are covered under church health plans that are exempt from ERISA. Congress enacted the church plan exemption precisely to avoid the church-state entanglement that would likely result from a narrower or more grudging exemption. Cf. Univ. of Great Falls, 278F.3d at 1343 (defining "religious" organization expansively). One of the many benefits of a broad exemption is that it avoids government entanglement in religious governance. HHS's chosen exemption does precisely the opposite.39

In short, the fourth prong of the exemption is lifted from an entirely different statutory context, one having no bearing whatsoever on health plans. Congress's concern in enacting the Form 990 filing exemptions was financial accountability and tax administration-not health insurance. As the fourth prong of the exemption bears no rational relationship to any legitimate governmental interest that the mandate or the exemption purports to advance, it does not withstand constitutional scrutiny any more than the rest of the exemption does.

F. The HHS exemption violates the Administrative Procedure Act.

Because the exemption violates the U.S. Constitution, it is plainly not "in accordance with law," and therefore violates the APA. 5 U.S.C. § 706.40

III. Conclusion

The HHS mandate should be rescinded in its entirety. If HHS refuses to d othat, then it must address the most grievous and intolerable aspects of this misguided mandate by

(a) excluding from the mandate those drugs that can cause an abortion, and

(b) exempting all stakeholders with a religious or moral objection to contraceptives, sterilization, and related education and counseling.

Addendum A:
Addendum B:
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