The Obama administration continues to cling to abortifacients-for-all as it on Friday issued proposed new rules regarding the requirement that employers pay for such products for their employees under Obamacare’s regulations.
The Supreme Court has ruled that the federal tax-and-spend health program could not require all employers to do that, but the revised rules continue to emphasize providing such products for everyone, whether they want them or not, and whether they are employed by a company that the court ruled exempt or not.
There just will be “accommodations” that will allow that, the rules say.
Several of the law firms who fought against the abortifacient mandate said they were reviewing the specific wording proposed.
According to the Alliance Defending Freedom, which has clients in the position of objecting on religious grounds to the funding of abortifacients, the rule “alters the way faith-based nonprofits can invoke a so-called ‘accommodation,’ under which the beneficiaries of their insurance plans can access religiously objectionable drugs, devices, and counseling.”
“The government also proposed a rule designed to provide a way for closely held businesses to comply with the mandate through the same ‘accommodation,’” the group said.
“The government should not force religious organizations, family businesses, or individuals to be complicit in providing abortion pills to their employees or students. We will consult with our clients to determine how the government’s actions affect their sincere objections to the mandate. Notably, the administration has failed to extend its existing religious exemption to the religious owners of family businesses and to religious non-profits other than churches. That would have been the best way of respecting freedom for everyone,” said Senior Counsel Gregory S. Baylor.
Officials with the Becket Fund, which handled cases that led the fight over the Obamacare provision, also said they were reviewing it.
Lori Windham, senior counsel for the group, said, “Under pressure from hundreds of lawsuits, the government continues to retreat. After three losses in the Supreme Court and dozens of losses in courts below, the government continues to confuse the issues. The government issued over 70 pages of regulations, when all it needed to do was read the First Amendment. We’ll be reviewing this latest attempt with each of our clients.”
The organization noted this is the “eighth retreat the administration has made from their original stance that only ‘houses of worship’ receive religious liberty protection.”
There have been 102 lawsuits involving 28 religious universities, 40 religious charities and three Bible publishes.
“The administration has lost 90 percent of their cases on this issue – including a decision and two orders from the Supreme Court in Hobby Lobby, Little Sisters, and Wheaton,” the Becket report said. “The religious charities in these cases serve tens of thousands of people, helping the poor and healing the sick. The Little Sisters of the Poor alone serve more than ten thousand people.”
But the group noted, “This is the first time the administration has acknowledged that families do not lose their religious freedom when they open a family business. None of the previous seven revisions reached family-owned businesses.”
The planned changes address two issues: Earlier religious nonprofits were ordered to submit a specific form to a third-party insurer, but now they can just notify the government, if they have objections. And the exemption for religious non-profits is being extended to closely held for-profit businesses.
“On June 30, 2014, the Supreme Court ruled in the case of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), that, under the Religious Freedom Restoration Act of 1993
(RFRA), the requirement to provide contraceptive coverage could not be applied to the closely held for-profit corporations before the court because their owners had religious objections to providing such coverage, and because the government’s goal of guaranteeing coverage for contraceptive methods without cost sharing could be achieved in a less restrictive manner by
offering such closely held for-profit entities the accommodation the government already provided to religious nonprofit organizations with religious objections to contraceptive
coverage,” the government explained.
The government continued, “The court concluded that the accommodation ‘does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’ stated interests equally well.’”
Hobby Lobby, an Oklahoma-based arts and crafts chain with about 13,000 employees, and Conestoga Wood Specialties, a Pennsylvania cabinet maker, had challenged the Affordable Health Care Act requirement that employees provide free contraception coverage, including abortion-inducing drugs.
Hobby Lobby’s argument was based on the Religious Freedom Restoration Act, or RFRA, which protects the individual beliefs of citizens.
The majority Supreme Court opinion by Justice Samuel Alito dismissed the Department of Health and Human Services argument that the companies cannot sue because they are for-profit corporations and that the owners cannot sue because the regulations apply only to the companies. Alito said that “would leave merchants with a difficult choice: give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations.”
The opinion said the RFRA’s text “shows that Congress designed the statute to provide very broad protection for religious liberty and did not intend to put merchants to such a choice.”
Alito said “the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees.”
“Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of humans who own and control them.”
The opinion said while the dissent argued RFRA does not cover Conestoga, Hobby Lobby and Mardel, an affiliate company of Hobby Lobby, because they cannot “exercise religion,” the justices “offer no persuasive explanation for this conclusion.”
“The corporate form alone cannot explain it because RFRA indisputable protects nonprofit corporations. And the profit-making objective of the corporations cannot explain it because the court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants.”
The court said that “business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understanding of the ‘exercise of religion.’”
While the court ruling was not a sweeping First Amendment freedom of religion ruling, it concluded: “HHS’s contraceptive mandate substantially burdens the exercise of religion.”
The opinion made clear the priority of protecting religion.
“RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. … It is not for the court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.”
The question presented in the case was whether any law, such as a nationwide health-care management system imposed by the government, can be so important that Washington can order people to violate their religious faith, on contradiction to the freedom guaranteed by the First Amendment.
One of the most pointed cases against the contraception mandate was brought by the Little Sisters of the Poor, a group of Catholic nuns who run homes for the elderly.
The nuns argued in court documents their faith prohibits them “from participating in the government’s program to distribute, subsidize, and promote the use of contraceptives, sterilization, or abortion-inducing drugs and devices.”
The government had persistently demanded that the Little Sisters “give up” their position on abortion, a brief filed with the 10th U.S. Circuit Court of Appeals in their case charges.
“The government has fought all the way to the Supreme Court, and continues to fight in this court, to force the Little Sisters to execute and deliver its mandatory contraceptive coverage form. … If the Little Sisters refuse, the government promises to impose severe financial penalties,” a brief in the case noted.
The district court that ordered the Little Sisters to sign a form authorizing a third-party promotion of abortifacients “essentially re-writes the Little Sisters’ religious beliefs for them.”
“Standard moral reasoning underpins the Little Sisters’ refusal to designate, authorize, incentivize, and obligate a third party to do that which the Little Sisters may not do directly,” the brief stated.
“And regardless of what the trial court and the government think the Little Sisters should believe, the undisputed fact is that they do believe their religion forbids them from signing EBSA Form 700. It was not for the district court to disagree with the line drawn by the Little Sisters.”