In 2012 and 2013, TGC produced a list of frequently asked questions about the Obama administration’s controversial contraception-abortifacient mandate. Since the Trump administration has proposed a rule change that will address the concerns religious organizations have about the abortion/contraceptive mandate, we’re updating that article to include more recent information. The newer updates are posted first with the original information posted below.
What’s the most recent news about the contraceptive-abortifacient mandate?
The Office of Management and Budget recently reported that an interim final rule on Coverage of Certain Preventive Services Under the Affordable Care Act is pending regulatory review. A draft of that regulation was leaked to the media. While it is unknown whether the 125-page proposal will be approved as written, it signals the intent of the Trump administration on the mandate.
What is the proposed change by the Trump administration?
The new rule would allow any employer or health insurance provider to request a religious exemption because of moral or religious to contraceptives and/or abortifacients. According to the leaked proposal, “Expanding the exemption removes religious and moral obstacles that entities and certain individuals may face who otherwise wish to participate in the healthcare market.”
How will employers get the exemption?
Employers who choose not to provide coverage of contraceptives/abortifacients will not be required to notify the government of their objection. The regulation would merely require that they notify their employees of any changes in coverage.
Will this change completely address the religious liberty concerns?
Yes, if it’s allowed to become law. The regulation itself would certainly be sufficient, but it will be challenged on legal grounds. At The New York Times reports, several advocacy groups claim the rule is “arbitrary and capricious,” in violation of federal law. Additionally, they claim it violates a section of the Affordable Care Act that broadly prohibits discrimination in health programs that receive federal funds.
What is this contraceptive-abortifacient mandate that is being repealed?
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.
Is there a religious exemption from the mandate? If so, who qualifies for the exemption?
According to Becket Law, there is a “religious employer” exemption from the mandate, but it is extremely narrow and covers few religious employers. The exemption covers 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 are 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’s ministry would qualify for this exemption,” Becket notes, “because he fed, healed, served, and taught non-Christians.”
Doesn’t the current 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 Becket Law, 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.
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 Becket Law 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 Becket Law 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 often 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 Don Carson and Justin Taylor—signed a statement by Becket Law explaining why the mandate is “unacceptable.”
Why should evangelicals care about the HHS Mandate?
In a 2013 interview with TGC, Daniel Blomberg, the legal counsel for Becket Law provided this answer:
On one level, simply because other evangelicals are being harmed by the HHS Mandate. Wheaton College, Colorado Christian University, and Hobby Lobby (which is owned by David Green, a devout evangelical)—among others—have gone to court so that they won’t have to do what the Mandate says they must do: provide insurance coverage for abortion-inducing drugs like ella and Plan B. As institutions, they share the evangelical commitment to cherishing the God-given worth of human beings from the earliest stages of their lives. But the Mandate coerces them to provide life-taking drugs, on pain of crushing fines—fines that would shut them down. Thus, evangelicals should care about the HHS Mandate because it coerces fellow evangelicals to violate their duty to obey God and protect human life.
On another level, evangelicals should care because of the unprecedented nature of the HHS Mandate’s threat. Our nation’s Founders made religious liberty our first political liberty because they recognized that it was the foundational political liberty. As recently as last January, in the Hosanna-Tabor Evangelical Lutheran Church case, members of the U.S. Supreme Court affirmed that religious groups are the critical shields between the individual and the power of the State, between liberty and tyranny. If the State can broadly force individuals and private institutions to directly violate core religious beliefs, then liberty itself—not just religious liberty—is threatened. For that reason, evangelicals should support the conscience claims of, for instance, Catholic institutions who oppose the Mandate both on sanctity-of-life grounds and because of the Mandate’s contraception-coverage requirement. Even though most evangelicals do not agree with Catholic doctrine on contraception, they can and should support the claims of Catholic individuals and institutions to freedom of conscience. Anything less signals a weak commitment to both religious liberty and personal liberty.
Becket Law says the leaked proposal would protect these religious organizations from the mandate.
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 sets 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 noted, 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 points out 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.)
Didn't the Obama administration offer a compromise? What was that about?
In response to the concerns of religious organizations, Obama offered a “compromise” in which he proposed that insurance companies, instead of religious institutions, be required to cover procedures and products that they find objectionable 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.
What was wrong with that compromise plan?
As economist Steve Landsburg explains, the proposed compromise did not really change the fact that the religious employers were 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 buyers, 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.