Since the administration keeps insisting it made an “exemption” or “accommodation” for religious objection to the Obama contraceptive mandate, let’s take a closer look at what exactly that is.
In the words of Adma Uddin, a Becket Fund for Religious Liberty attorney who specializes in domestic and international religious liberty cases. In her testimony before a House Judiciary Committee, which walked legislators clearly through a well-reasoned argument. A snip:
Many religious individuals and organizations that have conscientious objections to abortion object to the use of Plan B and ella because they believe, and scientific evidence supports their belief, that these drugs constitute abortifacents. That is, Plan B and ella can prevent a human embryo, which these religious groups understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus thereby causing teh death of the embryo.
It was precisely these sorts of concerns that were repeatedly articulated by religious groups in the more than 200,000 public comments submitted in response to the amended interim rule. HHS created an exceedingly narrow religious exemption-one that is narrower than any other religious exemption in federal law.
Now let’s take a look at what’s footnoted here. It’s remarkably important, and underreported.
 Until now, federal policy has generally protected the conscience rights of religious institutions and individuals in the health care sector. For example, for 25 years, Congress has protected religious institutions from discrimination (based on their adherence to natural family planning) in foreign aid grant applications. For 12 years Congress has both exempted religious health plans from the contraception mandate in the Federal Employees’ Health Benefit Program and protected individuals covered under other health plans from discrimination based on their refusal to dispense contraception due to religious belief.
This needs more attention. As does her whole testimony, frankly. But stay with this footnote, because it refers to the oft-repeated argument that 28 states already have such a law, which is not true. Uddin clarifies:
The HHS mandate is not only unprecedented in federal law, but also broader in scope and narrower in its exemption than all of the 28 State’s comparable laws. Almost half the States do not have a state contraception mandate at all, so there is no need for an exemption. Of the States that have some sort of state contraception mandate (all less sweeping than the federal one here), 19 provide an exemption. Of those 19 States without an exemption, only three (California, New York, and Oregon) define the exemption nearly as narrowly as the federal one, although the federal exemption is still worse because of the regulation’s discretionary language that the government “may” grant an exemption. Moreover, religious organizations in States with a mandate—even those where there is no express exemption—may opt out by simply dropping prescription drug coverage or offering self-insured plans, which are governed by federal ERISA law rather than state law. The federal mandate permits none of these alternatives, and therefore is less protective of religious liberty than any of the States’ policies.
…on January 20, 2012, the Administration announced it would not expand the exemption to protect religious schools, colleges, hospitals, and charitable service organizations, but it would give them one extra year to comply with the Mandate.
A year to figure out how they’re going to violate their consciences.
Uddin makes some very key points here.
If an employer with moral objections to the HHS Mandate is not covered by the Administration’s compromise solution, the employers final alternative is to stop providing health care benefits altogether. But this too places religious employers in an unacceptable double bind: either they must pay for contraception, sterilization, and abortion-inducing drugs, or they must stop providing their employees with health care and pay a stiff civil penalty. The first option forces religious employers to violate their moral convictions. The second option forces them to pay steep fines for exercising their religion…
Untenable (as all Supreme Court justices called it when the Obama administration tried earlier to usurp authority from churches in the unanimous Hosanna Tabor ruling).
Here’s another important point Uddin made which few others have (actually, none I’ve seen):
These lawsuits challenge the government Mandate as a violation of the First Amendment of the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), and the Administrative Procedures Act (APA). The religious freedom claims turn on the fact that the burden placed on these organizations is not justified, as is required by law, by a compelling government interest that is narrowly tailored to serve that interest.
Emphasis added. Because though that’s a legal fine point, it’s a very important one.
About the spin (my word, not Uddin’s)…
Some have framed the controversy surrounding the Mandate as a women’s rights issue. At the outset, the point must be made that our clients are acting because of what is being asked for (an act that violates their deeply held beliefs), rather than who is doing the asking…
Moreover, including a robust exemption protecting the deeply held religious beliefs of those who oppose contraception and abortion would not harm women or women’s health. Access to these contraceptives is widespread: Nine out of ten employer-based insurance plans in the United States already cover contraception. The government admits these services are widely available in “community health centers, public clinics, and hospitals with income-based support.”11
Read the footnote on that. It cites HHS.
In fact, the federal government already spends hundreds of millions of dollars each year funding free or nearly free family planning services under its Title X program. Therefore, the issue is not really about access to contraception but rather about who pays for it.
Finally, one of the issues that is consistently overlooked when the issue is framed as “women’s rights versus religious freedom” is that women, too, seek the freedom to live in accordance with their sincerely held religious beliefs…As a female member of religious minority, I hold this right to religious freedom particularly dear, as, for example, a Muslim woman’s right to dress as she pleases is restricted by many governments across the world.
As it turns out, this conflict is entirely unnecessary. A robust exemption from the HHS Mandate would be a workable way for the federal government to advance both its interest in women’s health and its commitment to respecting the legitimate autonomy and convictions of religious institutions.
In particular, expanding the existing “religious employer” exemption into a “religious conviction” exemption would eliminate the conflict entirely. Specifically, the exemption should be expanded to include all individuals and organizations—whether nonprofit or for-profit—that have a sincere religious conviction prohibiting them from purchasing or providing access to the mandated goods and services. In addition, any limitations over how, by whom, and for whom these individuals and organizations carry out their missions should be eliminated.
Strong testimony. One wonders who was listening on that committee and in the halls and quarters of Congress. We cerainly are.
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