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Eleven legislators file a brief with 10th Circuit in HHS mandate case, as the U.S. bishops press ahead with legal and legislative efforts to defend conscience rights for all.
BY JOAN FRAWLEY DESMOND
WASHINGTON — Eleven legislators have filed an amicus brief stating that the federal contraception mandate violates the Religious Freedom Restoration Act (RFRA), signed into law in 1993 by President Bill Clinton.
Sen. Orrin Hatch, R-Utah, a leading sponsor of RFRA, was among the group of lawmakers who filed the brief with the U.S. Court of Appeals for the 10th Circuit, which will rule on a legal challenge to the Health and Human Services' mandate brought by Hobby Lobby Stores, Inc., a Christian-owned retail chain.
“As one of the lead sponsors of RFRA, it’s deeply troubling to see this White House trample on the religious freedom the law seeks to protect,” Hatch said in a statement marking the politicians’ decision to file the brief.
Religious plaintiffs — both for-profit and nonprofit employers — have filed more than 40 legal challenges charging that the HHS mandate violates both RFRA and their constitutional right to free exercise. However, legal experts say that RFRA provides a stronger standard for securing religious liberty.
“RFRA protects ‘any exercise of religion’ for every American, but the abortion-pill mandate picks and chooses who will receive religious freedom and then gives exemptions only to churches,” said Matt Bowman, senior legal counsel for the Alliance Defending Freedom, which is representing a number of plaintiffs in HHS cases.
The law2makers’ action comes as the U.S. bishops and their allies in Congress are pressing harder to include conscience protections related to the HHS mandate in up-coming federal appropriations legislation.
In a Feb. 15 letter to Congress, Archbishop William Lori, chairman of the bishops’ Ad Hoc Committee for Religious Liberty, advocated for specific conscience provisions and urged that they be incorporated “in the upcoming legislative proposals to fund the federal government.”
Archbishop Lori asked that Congress include language that extends “the long-standing federal policy on conscience to the new coverage mandates for private health plans created by the Affordable Care Act, so Americans are not forced to violate their fundamental moral and religious convictions in order to offer, sponsor and purchase health coverage.”
Further, he called on lawmakers to include language that “clarifies current nondiscrimination laws to improve protection of individuals and institutions that decline involvement in abortion, allowing the victims of discrimination to vindicate their rights in court.”
Last year, after HHS Secretary Kathleen Sebelius approved the contraception mandate on Jan. 20, 2012, the U.S. bishops began to actively explore a legislative strategy to both expand the law’s narrow religious exemption and shield other private employers that opposed the mandate on moral grounds. But the proposed legislation failed to garner sufficient support on Capitol Hill, resulting in an explosion of legal challenges filed by for-profit and nonprofit plaintiffs.
On Feb. 1, 2013, the Obama administration unveiled the details of its modified accommodation for church-affiliated institutions that were not covered under the religious exemption. For-profit companies were again denied any conscience protections.
The U.S. bishops soon concluded that the administration’s latest proposal was still inadequate, and they expressed dismay that it offered no reprieve for employers like Hobby Lobby.
In his letter, Archbishop Lori acknowledged that the Feb. 1 proposal offered more details about the “accommodation,” but it still fell short.
The modified proposal said that accommodated church employers will play no role in the provision of services. Employee information will automatically be transmitted to an insurance carrier or a designated third party that will provide the services without charge.
The White House said the plan effectively resolved the objections of church leaders, but Archbishop Lori noted that the employees themselves could not opt out, even if they wanted to.
“If a religious organization is not exempt, its insurance company or third-party administrator will impose the full mandate ‘automatically’ on the organization’s employees and their female children, using the personal information that the employer had entrusted to them solely to provide a plan consistent with the organization’s faith,” read the archbishop’s letter.
“This part of the mandate, if adopted as a final rule, is expected to take effect by Aug. 1 of this year.”
He confirmed that Church leaders would continue to advocate for broad conscience protections as they engage “the administration and all branches and levels of government.”
On Feb. 13, Sister Carol Keehan, the president and CEO of the Catholic Health Association, an industry lobby, issued a statement that said the White House’s Feb. 1 proposal achieved “substantial progress” in the ongoing negotiations between HHS and her organization.
Sister Carol noted that CHA members “have been asked by HHS to evaluate three possible options for using a third-party administrator (TPA) and make recommendations. CHA has asked our members to review these options in relation to their self-insurance structures and give us input. CHA will provide that to HHS during the comment period.”
Archbishop Lori’s statement was part of a coordinated legislative effort to mobilize U.S. Catholics and others who oppose the mandate. An “action alert” email campaign began in mid-February, calling on citizens to “urge your representative and two senators” to “support legislation to protect the rights of conscience in health care when you take up … 'must-pass' bills to fund the federal government.”
The 11 legislators who signed the brief filed with the 10th Circuit all voted for the RFRA when it passed Congress in 1993, garnering a 97-3 vote in the Senate and unanimous support in the House.
In their brief, the lawmakers write that the administration “ignored RFRA in formulating the narrow religious exemption at the outset and have only begun to attend to its requirements because of litigation and the reaction to public scrutiny.”
The brief added: “Defendants’ refusal to address RFRA in any meaningful way (except when sued in federal court) is remarkable. But it is also consistent with the way defendants have treated the law of religious freedom from the beginning of the HHS mandate.”
In addition to Hatch, the brief was signed by Sens. Dan Coats, R-Ind., Thad Cochran, R-Miss., Mike Crapo, R-Idaho, Chuck Grassley, R-Iowa, Jim Inhofe, R-Okla., Mitch McConnell, R-Ky., Pat Roberts, R-Kan., and Richard Shelby, R-Ala., and Reps. Lamar Smith, R-Texas, and Frank Wolf, R-Va.
Joan Frawley Desmond is the Register’s senior editor.