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Obamacare: Mandated Contraception Collides With Religious Freedom

Will ‘preventative services for women’ that must be covered by insurance companies include contraception and sterilization? We’ll find out Monday.


| Posted 7/28/11 at 10:40 AM

Has the Obama administration found a cure for the common conscience?  The U.S. Department of Health and Human Services (HHS) is expected to let us know on Monday.

HHS is preparing a list of “preventative services for women” that every insurance plan must cover, without co-pay or deductible, under the Patient Protection and Affordable Care Act of 2010, popularly known as “Obamacare.” In a time-honored bureaucratic maneuver, HHS referred the question of what to include to a tame outside organization it could count on to give it the advice it wanted: It asked the Institute of Medicine (IOM), a nominally independent, if pliant, nonprofit, to identify the services that should be mandated.

The IOM issued its recommendations last week.  Alongside proposals like improved cancer screenings, it recommended that every health-insurance plan in America be required to cover “the full range” of FDA-approved contraceptive methods, sterilization procedures and related counseling. This includes emergency contraceptives that could cause abortions. What’s more, the IOM’s recommendations offer no exemptions for insurers or employers who have moral or religious objections to paying for these “preventative services.”

If HHS Secretary Kathleen Sebelius approves IOM’s proposal, thousands of religious institutions will be required to fund services they believe to be deeply immoral, and harmful to women besides.

Church leaders have been the most prominent critics of the IOM proposal. Catholic institutions employ more than 1 million workers, and the Church is especially prominent in teaching that abortion and artificial contraception are “intrinsic evils” that degrade women — as Humanae Vitae noted 43 years ago this week.

Threatens Other Faiths

But the IOM proposal threatens other faiths as well. Some interpretations of Judaism, for instance, forbid sterilization, but the IOM proposal would force Jewish institutions to fund the sterilization of their employees just the same. And many religious traditions condemn abortion.

It isn’t hard to understand how the IOM managed to ignore freedom of conscience. While the IOM says it prides itself on its “unbiased and authoritative advice,” its chosen advisers were hardly neutral.

In three public meetings organized to review and develop proposed mandated services for women, the IOM heard formal presentations from groups like Planned Parenthood, the Guttmacher Institute and the National Women’s Law Center, which advocates stricter “limitations on the right to refuse [to provide contraceptives] for moral, religious or ethical reasons.”

Meanwhile, groups interested in freedom of conscience, like the Becket Fund, were limited to the “open session” at the end. 

But the threat to religious liberty runs deeper than just one flawed rulemaking process.  The Obama administration has shown itself to be at best tone-deaf, and at worst downright hostile, to claims of conscience generally. In fact, it’s been down this very road before.

In 2009, Belmont Abbey College, a Catholic liberal arts institution in North Carolina, faced allegations of “gender discrimination” because it refused to pay for birth control as part of its employees’ health-care plan. After dissident faculty members complained about the policy, the federal Equal Employment Opportunity Commission (EEOC) investigated. It initially concluded that there was no evidence of gender discrimination — and then reversed itself weeks later, presumably at the direction of the new administration in Washington.

That was two years ago. Then, after the Becket Fund stepped in to defend Belmont Abbey’s right of conscience, the EEOC seems to have backed away from a constitutional confrontation and quietly folded their tents. We’ll see on Monday whether HHS is similarly prudent. I wouldn’t bet on it.

All this is particularly disappointing because these sorts of collisions between health-care policy and religious freedom are easily avoidable. State and federal governments have long used religious exemptions to advance their policy goals while still respecting religious liberty. In fact, the Patient Protection and Affordable Care Act already includes exemptions for groups like the Amish, who object to carrying any insurance at all. 

The bipartisan Respect for Rights of Conscience Act (H.R. 1179), currently before the House of Representatives, would expand these exemptions to protect a broader range of religious objectors. These exemptions are part of a long tradition of accommodating conscientious objection — to everything from military service to oath taking — in America.  George Washington put it well. The law, he wrote, should “always be extensively accommodated” to the “conscientious scruples of all” insofar as the “essential interest of the nation” permits.

The IOM report breaks with that tradition.

Secretary Sebelius has hailed the IOM report as “historic” — and rightly so. It will definitely be a first. Unless the secretary adds conscience protections to the IOM’s recommendations, the rules will beget an unprecedented attack on religious liberty.

Kevin J. “Seamus” Hasson is the founder and president emeritus of the Becket Fund for Religious Liberty, a public-interest law firm dedicated to protecting the free expression of all religious traditions.