Photo by Frank Camp, via Flickr

October 10, 2017 Charles Heintel 0Comment

A win for religious liberty.

Since January 20, 2012, charities, schools, business, and other organizations across the country have been fighting a Health and Human Services mandate that forces employers to include contraceptives in their female employees’ health insurance plans. Implemented by the department of Health and Human Services, the mandate made sure that women could obtain free contraception through employer-provided health insurance. Notably, at least 4 of the 20 FDA approved contraceptives can act as abortifacients. This mandate was a result of the Affordable Care Act (ACA), which passed in 2010, that included a list of “preventive services” such as: Depression, Blood Pressure, and HIV Screening.

Birth control was later added in 2012 by the department of HHS by a desire to include a list of protected preventive services for women. The rule made sure that no employee would be charged a co-payment for contraceptives, making it entirely free to the recipient. Despite the potential health benefits from increased contraceptive availability, the use of contraceptives to prevent pregnancy is considered immoral by countless individuals, religions, organizations, business-owners, and charities.

Initially, only churches and houses of worship were exempted from the mandate. Later, the Obama Administration created an “accommodation” for faith-based nonprofits whereby the organizations were supposed to notify third party insurers to provide the insurance. After the Hobby Lobby case, the accommodation was altered so that the organizations would instead notify the Department of Health and Human Services. They would then inform the third-party insurers, and the payments would be coordinated so that there wouldn’t be a cost to the employers.

Both of these “accommodations” were inadequate in protecting religious liberty as they ultimately still required employers to forfeit their religious beliefs and coordinate the insurance of certain medical services and products for their employees. The employers are forced to go against their beliefs because they still have to act to make sure their employees get the services they find morally objectionable.

According to the US Conference of Catholic Bishops in January 2014 , “The ‘accommodation’ will do nothing to help objecting insurers of third-party administrators, non-profit employers that are not explicitly ‘religious,’ for-profit companies owned and operated by religious individuals and families…” Rob Schwaltder, Senior Vice President at the Family Research Council, said, “Under this accounting gimmick, religious and nonprofit employers still remain the legal gateway for, and are forced to pay for the coverage, which in turn includes the objectionable services for their employees by government fiat.” Much more could be said about the nature of former President Obama’s embarrassing attempt to calm religious objectors.  In the end, faith-based hospitals, schools, charities, and other organizations were left with little protection. Companies that weren’t “closely-held” were left with no protection. The HHS mandate still insisted that these groups, even if they were run by Catholic nuns, had to go against their deeply held religious beliefs.

In June 2014, the United States Supreme Court ruled that Hobby Lobby, and other closely held for-profit corporations, could not be forced to facilitate services and products that went against their religious beliefs. The ruling was in large part due to the Religious Freedom Restoration Act (RFRA) of 1993. In May of 2016, the Supreme Court overturned lower court rulings against the Little Sisters of the Poor, sent back the case to lower courts, and requested that the Obama Administration and the Sisters work out a solution.

Part of the ruling was that the government couldn’t impose $70,000,000 in fines to the order of nuns, which otherwise could have happened in accordance with the Affordable Care Act and the subsequent HHS Mandate. Relief came in May of 2017 when President Trump signed an Executive Order that would protect the religious freedom of the Little Sisters and other groups. The Executive Order included that, “It shall be the policy of the executive branch to vigorously enforce the Federal law’s robust protections for religious freedom.”

On October 6, the Trump Administration announced that it will be rolling back the HHS contraception mandate. Conservatives have rejoiced and many leftists are outraged. The arguments on each side will be explored in part two.

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