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Supreme Court of the United States

The HHS Mandate Still Needs Fixing

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

It’s been over a year since the U.S. Supreme Court sent the Zubik v. Burwell cases back to the lower courts, instructing the parties to find a way to lift the HHS abortion pill mandate’s violation of the consciences of non-profit religious organizations. Recent developments suggest that the federal government may finally be moving, but we’re still waiting for it to fix the problem.

In 2011, the previous administration interpreted the Affordable Care Act to require many employee and student health plans to cover “all FDA-approved contraceptives,” including some that can cause early abortions. If a plan sponsor refused to comply, even for reasons of conscience, it would face crippling IRS fines. An extraordinarily narrow religious exemption protected houses of worship but left out most other religious non-profits (and non-religious organizations objecting on moral grounds).

Alliance Defending Freedom represents 20 organizations and 12 individuals in pending challenges to the mandate. They all object to providing abortion-inducing drugs through their healthcare plans because they believe in the sanctity of human life.

Recently, a media outlet published a leaked draft of an amended regulation that, if enacted, would address the challengers’ moral concerns and move the lawsuits closer to a final conclusion. Most significantly, the rule would expand the existing religious exemption to protect objecting religious non-profits, non-religious non-profits, for-profit companies, insurance issuers, and individuals. Under the leaked rule, the government would respect both religious and non-religious moral objections. ADF represents two non-religious organizations (March for Life and Real Alternatives) whose objections to providing abortion drugs are moral in nature.

In their challenges to the abortion pill mandate, ADF’s clients argued that the mandate significantly impaired their religious exercise without adequate justification. The previous administration argued, among other things, that its stated interests justified any burden on the challengers. In the preamble to the revised rule, the agencies re-examined that question and reached a contrary conclusion. The agencies considered whether it was really necessary to force those objecting to the rule to cover objectionable drugs, devices, and procedures. After all, many of these organizations’ employees share their employer’s pro-life views. In addition, contraception is already widely accessible and available without cost to low-income women. And there is no proof that providing free contraceptives and abortifacients actually reduces the rate of unintended pregnancy, the stated goal of the mandate.

This amended regulation comes on the heels of President Donald Trump’s executive order on religious liberty, which urged the agencies to reconsider the religious liberty protections in the HHS mandate.

Government should never force individuals to violate their convictions – whether religious or moral.

Both the Constitution and the Religious Freedom Restoration Act protect Americans from such coercion. It is past time for the federal government to acknowledge those rights by protecting the consciences of those who object to the HHS mandate. Following through and issuing the leaked rule would be an excellent first step.


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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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