The press’s misnomer of the year, “free contraception,” is being compounded by a supposed “religious employer” exemption offered by Department of Health and Human Services (HHS) on Monday in its “preventive services” regulation. HHS disregarded the conscience concerns of many Americans, bypassed significant requirements of Administrative law, and severely muddied the truth when it mandated – effective immediately – that health insurance plans (with few exceptions) provide coverage for the “full range of FDA approved contraceptives”… without a co-pay!
First, nothing in life is free. Removing co-pays from “contraceptives” does not mean these drugs and devices are cost-free. Rather, the payment for them is simply shifted. Under the HHS mandate, the payer is now everyone: conscientious objection or not.
Second, while the Left has already begun to employ its tired Catholic-baiting (painting the issue as one solely of Catholics opposing government-imposed payment for “birth control”), by mandating coverage for the “full range of FDA approved contraceptives,” HHS has posed a conscience problem for many Americans who do not object to “contraception” in the true sense of the word. But, sadly, several drugs and devices labeled by the FDA as “contraceptives” have life-ending mechanisms of action. This includes ella, a drug that can kill a human embryo even after implantation.
Thus, without dismissing the conscience concerns of Catholics and others who oppose paying for contraception per se, it must be acknowledged that “FDA approved contraceptives” include abortion-inducing drugs and devices offensive to a far greater segment of the American population.
So, what about the “conscience protection” HHS announced, “conscience protection” that has riled up Planned Parenthood and other abortion-advocacy groups? The reality is that the HHS “conscience clause” is just another “wolf in sheep’s clothing” public-relations move by the Obama Administration.
The regulation issued by HHS provides an exemption from its mandate for a narrowly-defined category of “religious employers.” To fit the HHS definition, an employer must “primarily serve persons who share its religious tenets.” That means, while a seminary may be protected, Mother Teresa’s order – by serving the poor, regardless of their religious tenets – would not be, nor would the Salvation Army. In fact, most religious schools, hospitals, and charitable organizations would not be protected by the exemption. Moreover, non-religiously affiliated employers – whose pro-life consciences are nonetheless violated – are certainly outside the realm of protection.
HHS wants Americans to believe that it is simply modeling its guidelines after state “contraceptive” mandates. However, the HHS regulation goes beyond coercive measures enacted in the states. Whereas state laws generally permit (assuredly tough) choices of dropping prescription coverage altogether, or self-insuring, the HHS mandate coupled with the Patient Protection and Affordable Care Act’s requirement to purchase insurance allows no escape for a conscience violated by the mandate. In addition, multiple states – including Arkansas and North Carolina – explicitly exclude so-called “emergency contraception” from their mandates.
Moreover, HHS completely neglected to mention that its regulation supersedes laws in Louisiana and Mississippi that were duly enacted to protect the conscience rights of all health care payers.
HHS went full-throttle as it steam-rolled over conscience rights, waiving provisions of the Administrative Procedure Act (APA) that require a comment period on a proposed regulation, instead implementing its mandate immediately.
While the Obama Administration is unlikely to retreat from the attack on conscience it unleashed on Monday (and its friends at Planned Parenthood are lobbying for it to remove even the fig-leaf conscience protection it proffered), a solution has been introduced in both the House and Senate. The Respect for Rights of Conscience Act – H.R. 1179 and S. 1467 – would ensure that PPACA’s broad mandate authorities, such as the “preventive services” mandate, cannot be used to violate Americans’ conscience rights.
This is a vital cause, and should have bi-partisan support. As other commentators have noted, there is a strong tradition in American policy-formulation in protecting conscience rights. However, unless Americans rise to this challenge, that tradition is at risk.