What just happened?
Earlier this week the Trump administration released two final rules to provide conscience protections for Americans who have a religious or moral objection to health insurance that covers contraception or abortifacients.
The new rules—one religious-based exemption and one moral-based exemption—provide broad protections for individuals, organizations, and businesses that opposed the Obama administration’s contraceptive-abortifacient mandate because of their religious or moral beliefs.
What exactly is this contraceptive-abortifacient mandate?
Under the Affordable Care Act (often referred to as “Obamacare”), employer-provided health insurance plans are required to cover certain “preventative services”—which were defined through guidance by the Obama administration as including all contraception methods approved by the Food and Drug Administration, including abortifacients and sterilization procedures.
What is the religious-based exemption, and who qualifies for it?
The first of the final rules provides an exemption from the coverage mandate to entities that object to services covered by the mandate on the basis of sincerely held religious beliefs. Entities that have sincerely held religious beliefs against providing contraceptive or abortifacient services would be exempt from the mandate and no longer be required to provide such coverage. Entities that object to covering some, but not all, contraceptive items would be exempt with respect to only those methods to which they object.
The exemption is applicable to nonprofits and for-profit entities, including both those that are closely held (such as Hobby Lobby and most small businesses) and also those that are not closely held (such as most publicly traded companies).
The exemption is also applicable to institutions of higher education, insurance issuers to the extent they provide a plan to otherwise exempt entities, and individuals whose employers and issuers are willing to provide them a plan compliant with the individuals’ beliefs.
These rules also apply to institutions of education, issuers, and individuals. Government entities are not eligible for the exemption. Churches and similar religious organizations were always exempt.
Additionally, exempt entities do not need to file notices or certifications of their exemption, an issue that was of concern for some groups, such as the Little Sisters of the Poor.
What is the moral-based exemption, and who qualifies for it?
The second of the final rules provides an exemption from the coverage mandate to entities that object to services covered by the mandate on the basis of sincerely held moral convictions. Entities that have sincerely held moral convictions against providing contraceptive or abortifacient services would be exempt from the mandate and no longer be required to provide such coverage. Entities that object to covering some, but not all, contraceptive items would be exempt with respect to only those methods to which they object.
The exemption is applicable to nonprofits, institutions of education, issuers, individuals, and closely held for-profit entities.
However, the exemption is not allowed for for-profit entities that are not closely held, such as publicly traded companies. Government entities are also not eligible for this exemption.
Why aren’t publicly traded companies eligible for the moral exemption?
The primary reason is because no publicly traded entities were identified that sought an exemption because of non-religious moral objections. The only entities known to express non-religious moral objections are pro-life organizations whose employees share the objections.
The government, however, has said it will reconsider the matter if companies not closely held seek such an exemption.
What are all the entities allowed some form of exemption from the mandate?
The entities that are allowed some form of exemption include:
• Churches, integrated auxiliaries, and religious orders with religious objections;
• Nonprofit organizations with religious or moral objections;
• For-profit entities that are not publicly traded, with religious or moral objections;
• For-profit entities that are publicly traded, with religious objections;
• Other non-governmental employers with religious objections;
• Non-governmental institutions of higher education with religious or moral objections;
• Individuals with religious or moral objections, with employer-sponsored or individual-market coverage, where the plan sponsor and/or issuer (as applicable) are willing to offer them a plan omitting contraceptive coverage to which they object;
• Issuers with religious or moral objections, to the extent they provide coverage to a plan sponsor or individual that is also exempt.
When do the final rules take affect?
The rules take effect 60 days after their publication in the Federal Register, the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. Since the rules are scheduled to be published on November 15, the estimated date they will take effect is January 14, 2019.
How many companies will be affected by these rules?
The Department of Health and Human Services estimates the exemptions should affect no more than approximately 200 employers with religious or moral objections.
Why is the executive branch modifying a law made by Congress?
Regulations, like the contraceptive-abortifacient mandate, are rules that have the force of law and that are issued by various federal government departments and agencies to carry out the intent of legislation enacted by Congress. The executive branch, through the various regulatory agencies, carries out most interpretation of legislation. Regulatory agencies handle administrative law, primarily by codifying and enforcing rules and regulations. When Congress passes a new law it usually goes to a regulatory agency to determine how the law will be put in place.
When did the government begin requiring employer-insurance programs to pay for contraceptives?
According to Becket Law, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP).
After FEHBP—the largest employer-insurance benefits program in the country—set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.
Why is the federal government dictating that contraceptives should be covered by insurance?
In 2000, the EEOC issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was added by Congress in 1978 in response to a Supreme Court decision holding that an employer’s selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.
As Becket Law notes, “Although this opinion is not binding on federal courts, it is influential, since the EEOC is the government body charged with enforcing Title VII. This opinion led to many lawsuits against non-religious employers who refused to cover prescription contraceptives.” While the federal district courts have split over the issue of whether the PDA requires employers to provide contraception, the only federal court of appeals to reach the issue held that the PDA did not include a contraceptive mandate.
Why should evangelicals care about the HHS Mandate?
In a 2013 interview with TGC, Daniel Blomberg, the legal counsel for Becket Law provided this answer:
On one level, simply because other evangelicals are being harmed by the HHS Mandate. Wheaton College, Colorado Christian University, and Hobby Lobby (which is owned by David Green, a devout evangelical)—among others—have gone to court so that they won’t have to do what the Mandate says they must do: provide insurance coverage for abortion-inducing drugs like ella and Plan B. As institutions, they share the evangelical commitment to cherishing the God-given worth of human beings from the earliest stages of their lives. But the Mandate coerces them to provide life-taking drugs, on pain of crushing fines—fines that would shut them down. Thus, evangelicals should care about the HHS Mandate because it coerces fellow evangelicals to violate their duty to obey God and protect human life.
On another level, evangelicals should care because of the unprecedented nature of the HHS Mandate’s threat. Our nation’s Founders made religious liberty our first political liberty because they recognized that it was the foundational political liberty. As recently as last January, in the Hosanna-Tabor Evangelical Lutheran Church case, members of the U.S. Supreme Court affirmed that religious groups are the critical shields between the individual and the power of the State, between liberty and tyranny. If the State can broadly force individuals and private institutions to directly violate core religious beliefs, then liberty itself—not just religious liberty—is threatened. For that reason, evangelicals should support the conscience claims of, for instance, Catholic institutions who oppose the Mandate both on sanctity-of-life grounds and because of the Mandate’s contraception-coverage requirement. Even though most evangelicals do not agree with Catholic doctrine on contraception, they can and should support the claims of Catholic individuals and institutions to freedom of conscience. Anything less signals a weak commitment to both religious liberty and personal liberty.
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