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How New HHS Mandate Redefines 'Religious Employer'

on . Conscience Rights

On January 20, 2012, the Obama Administration issued a new rule that all health plans must cover contraception and sterilization.  In doing so, the Health and Human Services Agency essentially redefined the very nature of what it means to be a religious employer.  Only those who confine their activity to people of their own faith now qualify.

In making the announcement, Kathleen Sebelius, secretary of the Health and Human Services, announced that non-profit employers will have one year to comply with the new rule.  “In effect, the president is saying we have a year to figure out how to violate our consciences,” said Cardinal-designate Timothy M. Dolan, archbishop of New York and president of the U.S. Conference of Catholic Bishops.  (The Cardinal-designate explains more on this video.)

The following Q&A background piece on the new federal mandate for coverage of contraception and sterilization in almost all health plans in the United States was prepared by the U.S. Conference of Catholic Bishops' Pro-Life Secretariat.  The mandate poses an unprecedented threat to the religious freedom of Catholic individuals and institutions.  The regulations changes the very definition of religious employer that has developed in this nation during the past two centuries.

How did this coverage mandate arise?

During Senate debate on the Patient Protection and Affordable Care Act (PPACA) in 2010, Sen. Barbara Mikulski (D-MD) offered a floor amendment delegating to the U.S. Department of Health and Human Services the responsibility to develop a list of "preventive services" (and a distinct list of "preventive services for women") to be covered in private health plans without cost sharing.  The amendment became part of the law, despite pro-life concerns about its scope.  Inclusion of this mandate without any provision for conscience rights was among the reasons the U.S. Conference of Catholic Bishops criticized the final law.  

How did HHS exercise its authority under the new law?

HHS released an interim final rule in September 2010 listing the general "preventive services" to be covered for everyone, and announced that it would solicit recommendations from the Institute of Medicine (part of the National Academy of Sciences) on special preventive services for women.  

How did USCCB respond?

USCCB did not object to the general list of preventive services, which did not include contraceptives or sterilization, but filed comments against including contraception or sterilization in the distinct list of mandated services for women.  This was primarily in response to a Planned Parenthood campaign urging their inclusion: www.usccb.org/ogc/preventive.pdf.  USCCB staff testified on this issue at IOM hearings and helped others, including pro-life medical experts, to do likewise.  In addition, USCCB supported Rep. Jeff Fortenberry and others in introducing a bill entitled "Respect for Rights of Conscience Act" (H.R. 1179), designed to address the absence of conscience protection in PPACA.  (The bill has also now been introduced in the Senate, as S. 1467.)

What happened in July and August 2011?

On July 19, the Institute of Medicine issued recommendations essentially giving Planned Parenthood everything it wanted (it turned out that at least five of the 16 members of the drafting committee had served on the boards of directors of PP affiliates). Less than two weeks later, HHS's Health Resources and Services Administration issued guidelines listing preventive services for women, incorporating the IOM recommendations in their entirety.  HHS issued a final interim rule that referenced this list, and also allowed (but did not require) HRSA to implement a very narrow and inadequate religious exemption.  Cardinal Daniel DiNardo, Chairman of the USCCB Committee on Pro-Life Activities, criticized the IOM report (July 19); renewed the Bishops' call for Congress to enact the Respect for Rights of Conscience Act (July 22); criticized the inclusion of contraceptives and sterilization in HRSA's list of preventive services, and further criticized the woefully inadequate "religious exemption" (August 1) set out in the HHS regulation.  Our materials issued during this period are attached.  USCCB staff have also written op-eds, blogs and letters to the editor on this topic, and invited others to do the same (see links at the end of this memo). 

What must be covered in private health plans under the title of "preventive services for women"?

Required services are set out in August 1 guidelines from the Health Resources and Services Administration (HRSA): www.hrsa.gov/womensguidelines/.

There are eight, including:

"All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."

Another service is a "well-woman visit," at least annually, to promote preventive services including the above.  The six remaining services involve counseling and/or screening for sexually transmitted diseases (specifically including human papillomavirus and HIV), gestational diabetes, and domestic violence, as well as provision of breast feeding support. These latter services pose no moral problem and should be welcome to many women.  But the inclusion of contraception and sterilization alongside them underscores the problem: Pregnancy is being treated as a disease or health threat to be "prevented," like diabetes, a sexually transmitted disease or violent injury.  (It is worth noting that the list does not include any services to assist women with a fertility problem in becoming pregnant -- fertility, not infertility, is seen as a threat to women's well-being.)

Is there precedent for such a broad mandate for contraception and sterilization coverage?

No.  Until now, no federal law required private health plans to cover these items.  Even state contraceptive mandates (enacted in approximately half the states), with rare exception, do not require sterilization coverage, and do not apply to all health plans.  As a general rule, state mandates apply to insured plans that provide prescription drug coverage.  

Does the mandate include some abortifacient drugs?

A "fact sheet" issued by HRSA says it does not: "These recommendations do not include abortifacient drugs" (www.healthcare.gov/news/factsheets/womensprevention08012011a.html).  That misleading answer is based on two factors.  First, the federal government does not officially recognize the destruction of a human embryo before implantation as an "abortion," although it is recognized as such in Catholic teaching and the understanding of many pro-life Americans.  So FDA-approved "emergency contraception" (EC) drugs covered by this mandate are described by HHS solely as "contraceptives," even if the drug's manufacturer says it can work by interfering with implantation.  Second, the FDA has never acknowledged that the drug it most recently approved for EC, "Ella" (ulipristal acetate), is a close analogue to the abortion drug RU-486 and has been shown in animal tests to cause abortion -- yet the drug is "contraindicated" for use in women who are or may be pregnant for this reason.  So the answer is yes, the mandate includes drugs that may cause an abortion both before and after implantation.

When does the mandate take effect?

It took legal effect on August 1, but health plans have some time to comply: "Non-grandfathered plans and issuers are required to provide coverage without cost sharing consistent with these guidelines in the first plan year (in the individual market, policy year) that begins on or after August 1, 2012."  For example, calendar year plans must comply with the mandate by January 1, 2013.  Grandfathered plans, those in existence at the time of enactment of PPACA, are not subject to the preventive care services mandate.  However, should these plans make certain changes regarding covered services or employee costs, they will lose their grandfathered status and will be forced to comply with the mandate.  It is anticipated that most plans will lose grandfathered status within the next few years.

Isn't there a religious exemption?

Yes, the interim final rule, which references HRSA's list of "preventive services" and gives it legal force, also allows HRSA to adopt an extremely narrow religious exemption.

What are the legal requirements for a religious exemption?

The exemption is only for a "religious employer," defined as "one that (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the [Internal Revenue] Code."  HHS notes that these provisions of the Code refer to "churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order."  This exemption is similar to the narrow exemptions enacted as part of state contraceptive mandates in California and New York.  

Which Catholic individuals and organizations are ineligible for an exemption?

Plans offered by a great many Church-affiliated organizations, including Catholic colleges and universities, as well as hospitals and charitable institutions that serve the general public, would be ineligible under the terms of this exemption.  To offer a plan to their own employees, these institutions would need, for example, to have as their purpose the inculcation of religious values, and primarily hire employees and serve persons who share the organization's religious tenets.  The alternative would be to cease providing employee healthcare coverage altogether. No individual may claim an exemption, whether as employer, head of a health insurance company, or purchaser of coverage for self or family.

What is the precedent for this strangely narrow definition of religion?

There is no precedent in federal law, which has long protected rights of conscience more generously.  Since 1973 the Church amendment has prevented government officials from requiring health care providers to take part in sterilizations as a condition for receiving federal funds if they have a moral or religious objection.  The Federal Employees Health Benefits Program allows a health plan to exempt itself from the program's contraceptive mandate on the basis of "religious beliefs," and protects the consciences of individual health care workers in other participating plans if they object on moral or religious grounds.  The major legislation for combating AIDS in Third World nations has a clause to prevent discrimination against Catholic and other groups that have a moral or religious objection to particular AIDS prevention strategies or other services.  And appropriations bills for the District of Columbia have long expressed the sense of Congress that any contraceptive mandate in DC needs a conscience clause protecting those with moral or religious objections.  HHS's proposal is modeled closely on the grudging exemption that pro-abortion groups and the ACLU have long proposed in Congress for pro-life health care providers -- an approach that Congress has never accepted.HHS says its language is very similar to religious exemptions in many state contraceptive mandates, but this is incorrect.  Most states with an exemption from such a mandate provide broader conscience protection than HHS has authorized in its final interim rule.  In addition, HHS's reliance on state law ignores several things: (1) as noted above, the state laws themselves are not as sweeping as HHS's mandate; (2) almost half the states impose no contraceptive mandate at all, so they "exempt" everyone; (3) some states which do have a mandate exclude some drugs like "emergency" contraception. Thus even in the states, the scope of this mandate is largely unprecedented.

USCCB Pro-Life Secretariat

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