The Obama administration has reportedly revised the controversial pro-abortion HHS mandate a third time, though it still fails to offer protection for religious groups not wanting to refer women for abortion-causing drugs or pay for them.
Hannah Smith, senior counsel at the Becket Fund for Religious Liberty, talked with CNA about the revisions and said the Obama administration is governing by “sloppy executive fiat” and not addressing the problems religious groups have.
She said the Obama administration has revised the rules for the third time in seven months that supposedly include a “safe harbor” and a one-year reprieve for religious groups not wanting to be forced to be involved with abortion-causing drugs and birth control. She also said the rules were re-written in an effort to dismiss one of the lawsuits filed against the mandate by Wheaton College.
“They’re making it up as they go along,” she said. “They haven’t really thought through these issues carefully.”
Smith observed that the safe harbor, as it had previously been written, did not apply to Wheaton. The Christian college does not object to all forms of contraception, but only to products that cause early abortions, she said. Initially, the safe harbor did not apply to employers that offered coverage of some contraceptives, she explained, but that regulation has now been changed to include those that accept certain elements of the coverage while objecting to others.
In addition, she said, Wheaton College was originally disqualified from the exemption because it had offered coverage of the products it objected to after Feb. 10, which was the deadline by which employers must discontinue the coverage in order to qualify for the reprieve. Smith explained that coverage of early abortion drugs Ella and Plan B had been “inadvertently and unknowingly included in the plans,” and when administrators discovered it, they immediately began working with the college’s insurance company to remove the coverage. This process was not completed until March.
The federal government has now decided that because the college had “made efforts” to remove the coverage before Feb. 10, it can qualify for the safe harbor, she said.
But although the new regulation offers some protection to Wheaton College, it is “not a complete victory,” Smith cautioned.
She explained that the safe harbor is merely a 12-month “delay tactic” that will postpone “the inevitable conflict that will arise” between government and religious organizations that object to the mandate.
In addition, she said, Wheaton College is not entirely protected over the next year, because employees can still file private lawsuits trying to force the college to adhere to the mandate.
After the new regulations for the safe harbor were announced, Wheaton’s lawsuit was dismissed as premature in a court decision that pointed to the administration’s promised “accommodation” for religious freedom, she noted.
But the accommodation proposals put forward by the administration “are not satisfactory to religious institutions” and do not adequately address concerns of religious freedom, Smith stated.
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“The government has now re-written the ‘safe harbor’ guidelines three times in seven months, and is evidently in no hurry to defend the HHS mandate in open court,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty. “By moving the goalposts yet again, the government managed to get Wheaton’s lawsuit dismissed on purely technical grounds. This leaves unresolved the question of religious liberty at the heart of the lawsuit.”
“Millions of religious employers are relying on the safe harbor guidance from HHS about who is subject to the mandate and who isn’t,” said Duncan. “It should be more clear than a series of confusing ad hoc changes to the safe harbor.”
Wheaton, according to The Becket Fund, is considering an appeal to the U.S. Court of Appeals for the D.C. Circuit.