Department of Health and Human Services in Washington D.C.

OLC Board Member Jack Painter and OLC liaison for Liberty Alliance Cincinnati, recently spoke about the U.S. Health and Human Services Contraception Mandate (HHS Mandate) within the Patient Protection and Affordable Care Act, more commonly known as “Obamacare”.  This is the first part of a two part series which summarizes a number of observations and points from Jack’s speech.  We think you will find both insightful and helpful in understanding the HHS Mandate.

What does the HHS mandate do?

  • The recent Department of Health and Human Services (HHS) mandate says health plans must cover contraceptives, abortion inducing drugs, and sterilization procedures.
  • The Obama Administration takes the position that unintended pregnancy is like an illness or disease for which prevention and treatment is needed, and the mandated drugs are part of the prevention. Ironically, the HHS mandate does not address infertility, which really is an illness.
  • The mandate provides a narrow exemption for plans offered by organizations that can show they are a “religious employer.”
  • To qualify for that exemption, though, you have to show not only that your purpose is the inculcation of religious values but that you primarily hire and serve people who share your religious tenets.
  • Most church-affiliated charities, schools and hospitals don’t meet that test. In the case of the Catholic Church, the test would require that Catholic hospitals primarily hire Catholic employees and serve Catholic patients. And it would require that Catholic charities serve primarily Catholics in need. This is inconsistent with the way Catholics view their religious mission. As the Catholic Church has said, when people come to it, it doesn’t ask “Are you Catholic?” It asks only, “Are you hungry?” That would no longer be permitted.
  • In fact, the test for the exemption is so narrow that Jesus and his twelve disciples would not have been exempt from the mandate because they served people of different faiths.
  • The Obama Administration says it will solve this problem with the exemption by implementing new rules by August 2013 that will require insurance companies to offer and pay for the objectionable coverage in the case of non- profit, religious organizations. But that doesn’t solve the problem:
    • Many religious organizations self-insure. Those employers will still be forced to offer objectionable services, and they and their employees will pay directly for those services.
    • For organizations that don’t self-insure and instead purchase insurance from an insurance company, the insurance company will pay for the cost of the objectionable services through employer and employee premiums it receives.
    • And even if the government can find some way to avoid that, it is still requiring employers to maintain health plans they find morally objectionable.
    • Finally, the supposed accommodation leaves out a whole class of organizations and people who don’t qualify for the accommodation. This includes for-profit religious-oriented businesses, such as publishers, and non-profit organizations that don’t meet the narrow test of a “religious” organization, such as The Knights of Columbus and church-affiliated insurance companies. It also includes secular employers (such as pro-life people who own businesses) and individual employees who don’t want to participate in or finance the objectionable coverage.

How does the HHS mandate violate religious freedom?

  • Religious charities, schools, and hospitals act on and express their faith in two ways. One is through good works. The other is by following the tenets of their faith in conducting their operations.
  • The Administration is telling these institutions they cannot do both. If they want to express their faith through good works, they must now violate their faith by providing their employees contraceptives, abortion-inducing drugs, and sterilization procedures.
  • This is true whether the government forces employers to pay directly for the drugs and procedures in question or forces employers to hire insurance companies that provide them for free. Either way, the employer is being limited in its ability to act on and express its religious faith.


Read More in the 2nd and final installment of The HHS Contraception Mandate and Religious Freedom, Part 2 of 2

Jack Painter lives in Cincinnati and is a corporate lawyer in private practice. He founded Liberty Alliance Cincinnati and is on the board of the Ohio Liberty Coalition.