On April 8, U.S. Department of Health and Human Services Secretary Kathleen Sebelius confirmed that the contraception mandate, with a narrow religious "exemption" excluding most church-affiliated employers, would be finalized on Aug. 1.
The announcement was made during the HHS secretary’s appearance at a forum hosted by the Harvard School of Public Health. Her remarks were made in response to a question from the audience, and she offered no expression of regret to soften the impact of her decision on the many religious employers who oppose the mandated services on moral grounds and will now be forced to provide them.
"As of Aug. 1, 2013, every employee who doesn’t work directly for a church or a diocese will be included in the benefit package," Sebelius said at the Harvard gathering.
She presented the final iteration of the "accommodation" as a reasonable solution for "upholding the religious beliefs of an employer, but offering the benefits to employees."
Her unapologetic rejection of the U.S. bishops’ efforts to secure both an expanded religious exemption and broad conscience objections for all objecting employers came just one day after the close of the "open comment period."
Earlier this year, when HHS unveiled its updated "accommodation," which directed insurance carriers and other third-party entities to cover the mandated co-pay-free services for exempted religious employers, the administration also invited U.S. citizens to register their support or objections with the government.
Tens of thousands of citizens, including Catholic bishops, administrators of universities, hospitals and social agencies, private business owners, constitutional scholars and ordinary laypeople, flooded the online comments box. Some statements offered legal analyses that explained why the mandate violates the Free Exercise Clause of the Constitution and the Religious Freedom Restoration Act. Pro-life business owners affirmed their commitment to the sanctity of human life.
The U.S. Conference of Catholic Bishops, in a March 20 statement filed by Anthony Picarello, the U.S. bishops’ associate general secretary and general counsel, and Michael Moses, associate general counsel, rejected the narrow religious exemption that offers no protection for Catholic "organizations that contribute most visibly to the common good through the provision of health, educational and social services."
The bishops’ statement echoed previous concerns about the lack of broad conscience protections for private employers who object to the provision of such services. Such regulations would set a dangerous precedent, paving the way for the marginalization of all religious practice that occurs outside of a church, temple or mosque. Further, a group of attorneys general from states like Kansas and Nebraska filed a comment expressing their "fear that the HHS mandate is the first of many regulations under the Affordable Care Act that will conflict with legal protections for religious liberty and the right of conscience."
The truth is further articulated in the comment submitted by the Little Sisters of the Poor, who also must provide free sterilization and abortifacients in their health plan for employees who help the order fulfill its mission to care for the elderly.
"The federal government should not force us to counteract through the health benefits the very same gospel of life that we attempt to live out in community and solidarity with the needy elderly," said the Little Sisters of the Poor.
The rush to register such objections demonstrates the growing urgency of the threat posed by the mandate, but also the continued belief and commitment in the democratic process of a nation of laws.
Yet the day after the comment period was closed, Sebelius issued her final judgment. Thus skeptics might be forgiven for viewing her initial invitation for "comment" as a show of cynical political theater by a government that has allowed an ideology of reproductive rights to trump religious liberty.
However, the HHS secretary’s final edict provides clarification for all people of good will — and for the courts.
Indeed, the finalization of the narrow exemption can be expected to bolster the legal challenges filed by religious employers. Some courts have dismissed lawsuits, ruling that it’s premature to challenge a law that had not yet been enforced. But some judges have expressed impatience with the White House for delaying a regulatory decision with vast consequences for Catholic institutions and the people they serve.
Archbishop William Lori of Baltimore, chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, marked the close of the comment period with a request for prayers that the lawsuits succeed:
"Their goal is nothing less than securing the freedom of the Church to continue to obey the Lord’s command — and, in turn, to serve the common good — by providing charitable ministries in health care, education and service to the poor, all without compromising Catholic beliefs."
The public comment period is over, but while we pause to take stock of this administration’s decision, we must not fail to pray and advance respect for the "first freedom" in our land. The future of our experiment in ordered liberty depends on it.