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Supreme Court of the United States

Feds Force Insurance Coverage of Contraceptives and Abortifacients

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

The U.S. Department of Health and Human Services is forcing virtually all employers to include contraceptives – including some that cause abortion – in their group health insurance plans.  The HHS “Preventive Services Mandate” applies to many religious employers who believe that the use of some or all of these drugs and devices is immoral.  As a result, the federal government is violating rights of conscience on a massive scale.

In 2010, Congress passed and President Obama signed the Affordable Care Act, commonly known as "Obamacare."  The Act requires group health plans to include certain preventive health services.  The law gave HHS's Health Resources and Services Administration (HRSA) the power to determine what "preventive services" had to be covered.  HRSA decided that plans would have to include "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."  The FDA has approved the sale and marketing of Plan B and ella as contraceptives, even though both can function as abortifacients.

Many religious organizations believe that abortion is morally wrong.  Some also object to contraception and sterilization.  The religious exemption in HHS's contraceptive mandate, however, is shockingly narrow.  To avoid being forced to pay for morally problematic drugs, devices, procedures, and counseling, a religious organization must convince the federal government (1) that its purpose is the inculcation of religious values; (2) that it "primarily employs persons who share the religious tenets of the organization"; (3) that it "serves primarily persons who share the religious tenets of the organization"; and (4) that it has a particular tax status with the IRS -- one that most non-church religious organizations do not have.  Given the narrowness of the objection, most religious schools, colleges, universities, and social service ministries are covered by the mandate.  Moreover, individuals who pay premiums into group health plans (or who will utilize the "exchanges" envisioned by Obamacare) will be forced to financially contribute to the purchase of abortion-causing drugs.

A host of religious organizations and religious freedom advocates have urged the Administration to abandon the mandate or, barring that, substantially broaden the religious exemption.  To date, those efforts have not borne any fruit.  Legislators in both houses of Congress have introduced bills designed to remedy the Administration's unprecedented violation of the right of conscience.  So far, those bills have not advanced.  Two lawsuits have been filed, and more are expected.

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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