Will the HHS Contraception Mandate Derail Obama's Chances of Re-Election?

Two weeks after HHS Secretary Sebelius approved the controversial final rule, Speaker Boehner and Romney take up religious liberty issue.

House Speaker John Boehner (R-OH) speaks during his weekly on-camera news conference on Capitol Hill Feb. 2 in Washington. Boehner said President Obama should reconsider a decision to compel church-affiliated employers to cover birth control in their health care plans.
House Speaker John Boehner (R-OH) speaks during his weekly on-camera news conference on Capitol Hill Feb. 2 in Washington. Boehner said President Obama should reconsider a decision to compel church-affiliated employers to cover birth control in their health care plans. (photo: Pete Marovich/Getty Images)

WASHINGTON — The new health-care bill was supposed to be President Barack Obama’s ticket to his re-election. But, for now, those hopes have dimmed, as the White House fights to defend its controversial policy to require Catholic institutions to provide contraceptive services in their employee health plans.

Under President Obama’s health-care overhaul law, most private employer health benefits will have to cover birth control, free of charge, as a preventive service for women. For much of 2011, the U.S. bishops lobbied for a broad religious exemption that would shield church-affiliated hospitals, social agencies and universities from being forced to provide health services that violated their teachings.

Instead, Kathleen Sebelius, secretary the U.S. Department of Health and Human Services, approved a narrow exemption, provoking an immediate outcry from church leaders when the decision was announced on Jan.20. Now, the agency’s policy has roiled Capitol Hill, as unexpectedly strong opposition from Catholics across the political spectrum has created an opening for the GOP leadership and presidential hopefuls eager to attract swing voters.

“I stand with the Catholic bishops and all religious organizations in their strenuous objection to this liberty- and conscience-stifling regulation,” stated Mitt Romney in a Feb. 3 column published in the Washington Examiner.

“I am committed to overturning Obamacare root and branch. If I am elected president, on day one of my administration I will issue an executive order directing my secretary of Health and Human Services to issue a waiver from its requirements to all 50 states.

“And on day one I will eliminate the Obama administration rule that compels religious institutions to violate the tenets of their own faith. Such rules don’t belong in the America that I believe in.”

Romney’s stance has been challenged by his closest rival, Newt Gingrich, who has argued that the former Massachusetts’ governor’s 2005 decision to require Catholic hospitals in the state to provide “emergency contraception” to rape victims, despite the objects of Church-affiliated hospitals, suggests that he has flip-flopped on the issue.

Romney’s defenders contend that the governor only enforced that policy after state Democrats overrode his veto

But Romney is only one of several high-profile Republicans to address the issue this week. Sen. Marco Rubio, R-Fla., introduced a bill designed to repeal the HHS rule, and then House Speaker John Boehner, R-Ohio, argued that the HHS policy violated First Amendment rights protected under the Constitution.

In a Feb. 3 statement, Speaker Boehner vowed that if the White House did not reverse the federal rule, the House would take action.

“The rule put forth by the Department of Health & Human Services must not stand.  The Obama Administration must re-evaluate this decision and reverse it.  If it does not, I believe the United States Congress, acting on behalf of the American people, will,” said Boehner, in his second statement on the issue that week.


The previous day, during a press conference, the Speaker framed the mounting political challenge for the president and his allies.

“There is obviously a lot of opposition to … requiring religious organizations to violate their beliefs in ordering that all insurance policies provide certain contraceptive benefits. I think this mandate violates our Constitution. I think it violates the rights of these religious organizations, and I would hope that the administration would back up and take another look at this,” stated Boehner.

While the White House press secretary Jay Carney has continued to insist that the policy would remain in place, groups like Democrats for Life of America, which successfully advocated for passage of the 2009 health bill, despite ongoing concerns about potential conscience violations, have stepped up the pressure.

“Forcing religious institutions to provide insurance coverage for services that are directly in opposition to their moral beliefs is very clearly wrong,” said Kristen Day, the executive director of Democrats for Life of America, in a published interview. The group includes pro-life House Democrats who ultimately backed the bill.

Seeking to tamp down the uproar, which has ignited protests from evangelical Christians and Orthodox Jews, Cecilia Muñoz, the director of the White House Domestic Policy Council, issued an seven-point defense of the policy on Feb 1.

“Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible. But no one will be forced to buy or use contraception,” said Munoz.

She insisted that “[d]rugs that cause abortion are not covered by this policy: Drugs like RU-486 are not covered by this policy, and nothing about this policy changes the president’s firm commitment to maintaining strict limitations on federal funding for abortions. No federal tax dollars are used for elective abortions.”

She stressed that “over half of Americans already live in the 28 states that require insurance companies cover contraception: Several of these states, like North Carolina, New York and California have identical religious employer exemptions. Some states like Colorado, Georgia and Wisconsin have no exemption at all.”

Muñoz repeated statements made by other administration officials, who have noted that Catholic social agencies have received “substantial resources” in federal funds over the past three years.

“This work includes partnerships with Catholic social-service agencies on local responsible-fatherhood programs and international anti-hunger/food-assistance programs. We look forward to continuing this important work,” she said in a statement that implied church-affiliated groups should be content with the trade-off.

Damage Control

UPDATE: On Feb. 3, the USCCB issued a statement that described the White House’s sevenpoint response to critics as “false and misleading.” 

In response to Muñoz’s assertion that abortion-inducing drugs are not covered, the USCCB stated: “The policy already requires coverage of Ulipristal (HRP 2000 or “Ella”), a drug that is a close analogue to RU-486 (mifepristone) and has the same effects. RU-486 itself is also being tested for possible use as an “emergency contraceptive”—and if the FDA approves it for that purpose, it will automatically be mandated as well.”

Planned Parenthood also has launched an ad campaign in selected cities to defend the controversial policy.

But the belated damage control effort by the White House and its allies has yet to contain the outrage, which has begun to surface on public-radio talk shows that previously ignored or downplayed the U.S. bishops’ concerns about the HHS mandate.

In a Wall Street Journal column this week, Peggy Noonan, who endorsed Obama’s first presidential bid before reversing course, described the White House’s divisive policy as “a battle the president can’t win.”

“President Obama just may have lost the election,” contended Noonan, who suggested that the controversy had awoken “the sleeping giant” — those swing voters who began supporting the GOP during the Reagan presidency.

“There are 77.7 million Catholics in the United States. In 2008 they made up 27% of the electorate, about 35 million people. Mr. Obama carried the Catholic vote, 54% to 45%. They helped him win,” said Noonan.

“They won’t this year. And guess where a lot of Catholics live? In the battleground states.”

While Romney and other GOP presidential contenders are already using the controversy to draw support for their campaigns, it’s not clear what Republicans on Capitol Hill will do now. Rubio and Rep. Jeff Fortenberry, R-Neb., who had already introduced his own broad-based bill to bolster conscience protections under threat by the new health bill, believe that the party will rally around strong bill that defends 1st amendment rights.

In a blog post last week, National Review’s Ramesh Pomeru took a look at both bills and suggest that it “might make sense to merge these bills or in some other way work out a joint strategy for advancing the cause that the senators share.”

Fortenberry reports that his bill has received a jump of support since the contraception mandate surfaced, but many more co-sponsors are still needed for the bill to stand a chance in the Senate.

“My bill takes care of this by upholding the fundamental American principals of rights of conscience and religious liberty. The government should not force Americans to pay for things that violate their moral tenets,” Fortenberry told the Register, noting that conscience concerns were not just an election-year issue for him.

“My bill, introduced a year and a half ago, anticipated this problem. What happened in the new health-care law was that the HHS secretary received new authority to implement preventative mandates. They have claimed that a whole host of services that were never mandated before are necessary for preventative medicine.

He added, “The president has vastly overreached, and people of good will see it as an abuse of power. If it’s not an election-year issue, we’re in trouble.”

UPDATE:  A Feb.6 USA Today editorial attacked the federal rule,stating that it “violates religious freedom.”

“The administration’s best option now is to reopen discussion with those affected and widen the exemption in a suitable way. The number of people affected will be relatively small — far too small to justify yet another court fight over the Affordable Care Act— and having freely chosen their employer, they’d have a dubious case for grievance against institutions that choose not to offer contraception coverage. As Sister Mary Ann Walsh of the U.S Conference of Catholic Bishops put it, “When you go to a Jewish deli, you are not expecting pork chops.”

On Feb. 5, the Sunday television news shows reported that the federal rule was poised to become an election-year issue. “This is a tremendous infringement of religious liberty,” Newt Gingrich said on NBC’s “Meet the Press.” “Every time you turn around the secular government is shrinking the rights of religious institutions in America.”

UPDATE: On Feb. 5, Sunday news shows reported that the contraception mandate was poised to become an election year issue. On CNN, Maryland Gov. Martin O’Malley, a Democrat, dismissed Catholic concerns as “hyperventilating,” But New Gingrich and Virginia Gov. Bob McDonnell, a Republican, attacked the federal rule.

Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.