WASHINGTON — With the Aug. 1, 2013, deadline for compliance with the contraception mandate looming ahead, U.S. legislators are scrambling to secure conscience protections for employers who oppose the law on moral or religious grounds.
While Church-affiliated institutions have been promised a one-year extension before they must document their compliance, private for-profit businesses must provide that proof as soon as their new health plan is rolled out.
With time running out, Rep. Denny Rehberg, R-Mont., chairman of the House Appropriations Subcommittee on Labor, Health & Human Service and Education, introduced beefed-up conscience protections in his subcommittee’s 2013 appropriations bill that funds the U.S. Department of Health and Human Services.
Richard Doerflinger, the chief lobbyist on life issues for the U.S. Conference of Catholic Bishops, described the House Subcommittee appropriations bill as a “breakthrough” because the language from the Respect for Rights of Conscience Act is included right in the spending bill and not in an amendment.
“I think we have an excellent chance of keeping the conscience language in the House bill. The real challenge will be for the Senate to accept it. But the Senate cannot simply filibuster the appropriations bill if they want HHS funded for the upcoming year. One way or the other, there will be a vote,” he told the Register, while expressing some uncertainty about the timeline.
It will likely be a tough sell in the Senate, where an amendment with conscience provisions recently failed to gain approval in a close vote. But Cardinal Daniel DiNardo of Galveston-Houston, chairman of the bishops’ Committee on Pro-life Activities, applauded the decision to insert two key conscience provisions in the House spending bill.
In a July 17 letter that urged adoption of the provisions, Cardinal DiNardo said they would “strengthen federal protections for health-care providers who decline to take part in abortions and will ensure that the Affordable Care Act allows Americans to purchase health coverage without being forced to abandon their deeply held religious and moral convictions on matters such as abortion and sterilization.”
Approved on July 18 by the subcommittee, the bill incorporates the Abortion Non-Discrimination Act (ANDA, H.R. 362) and the policy of the Respect for Rights of Conscience Act (H.R. 1179).
The ANDA provisions would codify the Hyde-Weldon Amendment, which bars government discrimination against health-care providers that refuse to participate in abortion. That protection was more vital than ever, the cardinal argued, as instances “of discrimination against pro-life health-care providers continue to emerge.”
He reported that “some states implementing the Affordable Care Act have begun to claim that they can force all private health plans on their exchanges to cover elective abortion as an ‘essential health benefit.’”
ANDA would help address that threat, he stressed: “By closing loopholes and providing victims of discrimination with a ‘private right of action’ to defend their rights in court, Section 538 will provide urgently needed relief.”
‘The Most Direct Threat’
While adoption of ANDA provisions would address the broader threat to the rights of conscience, the insertion of the Respect for Rights of Conscience Act would counter “the most direct federal threat to religious freedom in recent memory,” he said, alluding to the HHS mandate for all private health plans.
The Respect for Rights of Conscience Act, he said, would provide “an opt out on moral or religious grounds from the new-benefits mandates to be created for the first time by the Affordable Care Act itself.”
The intense deliberations underscore the urgency — and difficulty — of securing legislation that will meet the needs of both institutions and individuals who object to the federal contraception mandate on religious or moral grounds.
Doug Johnson of the National Right to Life Committee said Rehberg’s move this week “showed real grit, because Rehberg is seeking a Senate seat this fall, and today’s action will surely draw attacks from the well-funded pro-abortion advocacy groups who are supporting U.S. Senator Jon Tester. Tester has a solidly pro-abortion record and has already voted to defend the Obama mandate.”
When Rehberg issued his statement introducing the spending bill, he sought to head off partisan objections, noting that that the “preventive-services conscience language in the base bill does not overturn the preventive-services mandate. It simply accommodates faith-based institutions and other entities that have moral or religious objections to covering certain services that have been newly mandated under Obamacare.”
The federal rule mandating co-pay-free coverage of contraception, sterilization and abortion drugs in employee health plans was approved by HHS Secretary Kathleen Sebelius on Jan. 20. After a wave of criticism from Catholic leaders across the political spectrum, President Barack Obama announced an “accommodation” that directed objecting religious institutions to pass on compliance obligations to insurance companies.
Rehberg asserted that the “administration’s latest ‘advanced notice of proposed rulemaking’ has been rejected by the faith-based groups most likely to be impacted by the mandate. The U.S. Conference of Catholic Bishops, the Catholic Health Association, Southern Baptist leaders and the Orthodox Jews have rejected the so-called accommodation.”
A week earlier, Rep. Jim Sensenbrenner, R-Wis., introduced his own bill that did not attempt to overturn the mandate; it focused instead on repealing the “tax” that would be imposed on employers that resisted the mandate. The USCCB was initially enthusiastic about the measure, but ultimately decided that it would not provide relief for Church-affiliated institutions.
“The Obama administration now says the way it will enforce this mandate with respect to religious employers is that they will not penalize them for non-compliance,” the USCCB's Doerflinger said.
Instead, when Catholic institutions “try to put out a Catholic health plan, the government will have the insurance company or a third party insert the contraception coverage over the religious institutions' objections,” he noted.
That kind of "solution," however, could set a dangerous precedent for state intrusion into internal church operations. Further, even if some objecting institutions are spared the government "tax," most private employers who resist the mandate will have to pay penalties, and they also could face employee lawsuits demanding access to co-pay free "preventive services."
The bishops’ conference is clearly enthusiastic about Rehberg’s solution. In his letter to the House subcommittee, Cardinal DiNardo vowed that “the Catholic community and many others concerned about religious freedom will work hard to ensure that these protections are enacted into law.”
However, that pledge must be bolstered with intense follow-up action, as lawmakers on Capitol Hill seeking re-election weigh expending political capital on an unpredictable religious-freedom battle during an election year.
Joan Frawley Desmond is the Register’s senior editor.