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Supreme Court of the United States

Another ObamaCare “Compromise” Falls Short

By Gregory S. Baylor posted on:
October 17, 2017

Today, the Obama Administration proposed a new regulation regarding religious organizations and the HHS preventive services mandate, which, among other things, required a huge number of employers to cover (without cost sharing) contraceptives, abortifacients, sterilization, and related counseling in their employee group health plans, even if they conscientiously object.  The Mandate exempted an astonishingly small subset of religious employers:  in essence, houses of worship only.  Today’s proposal (1) would slightly modify the existing “religious employer” exemption; and (2) purports to accommodate the consciences of other religious employers.

The February 2011 Mandate exempted only those houses of worship that (1) had the inculcation of religious values as their purpose; (2) primarily employed persons who share their religious beliefs; and (3) primarily served persons who shared their religious tenets.  Today’s proposal eliminates those three qualifiers.  Accordingly, churches, associations of churches, denominations, and their “integrated auxiliaries” are exempt from the Mandate.  The exemption remains stunningly narrow.  It does not protect the huge number of non-church religious organizations (social service agencies, schools, universities, etc.) that object to facilitating the use of morally problematic drugs and devices.  It does not help the faithful Americans who attempt to operate their family businesses in accordance with their religious convictions.  This almost meaningless expansion of the exemption does not help any of the over 130 organizations and individuals that have challenged the Mandate in court.

The proposed “accommodation”  is equally disappointing.  It is available only to those organizations that (1) have a religious objection to providing coverage for some or all of the FDA-approved drugs, devices, and services that the Affordable Care Act and the HHS Mandate require be covered; (2) are organized as nonprofit entities; (3) hold themselves out as religious organizations; and (4) self-certify that they meet these criteria and specify the drugs, devices, and services to which they object.  The primary defect in these eligibility criteria is that they completely exclude for-profit businesses run by families who conscientiously object to abortion and/or contraception.

As for the substance of the “accommodation,” it does not eliminate the direct causal connection between a person’s participation in the employer’s health plan and that person’s receipt of “free” abortifacients and contraceptives.  The accommodation merely purports to shift the cost of the objectionable coverage from the employer to some other entity:  the employer’s insurance company or the third-party administrator of the plan of an employer who self-insures.  The Administration dubiously suggests that this accounting gimmick would insulate objecting employers from financial responsibility for abortifacients and contraceptives.  And it fails to understand that paying for an immoral act is not the only way one might be complicit in that act. Employment with, for example, a Christ-centered college is a “ticket” to “free” abortifacients, and the government is forcing the college to issue those tickets.  Such an accommodation does not give the measure of respect to freedom of conscience that both the law and basic decency require.

HHS will accept comments on the proposed rule through April 5, 2013, and will issue a final rule by August 1, 2013.


Gregory S. Baylor

Gregory S. Baylor

Senior Counsel

Gregory S. Baylor serves as senior counsel with Alliance Defending Freedom, where he is the director of the Center for Religious Schools and Senior Counsel for Government Affairs.


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