Pro-life and religious leaders are sharply criticizing the Obama Administration’s revised contraceptive and abortion drug mandate, saying that it still requires religious employers to finance abortifacient drugs in their health insurance plans. 

“With another phony compromise, the Obama Administration continues to insult the intelligence of the American people and trample our constitutional rights,” reacted Charmaine Yoest, President of Americans United for Life.  “Our First Amendment freedom of conscience has been violated by Obamacare and these new regulations do not resolve the offense.”  

Under the “compromise” plan proposed by the U.S. Department of Health and Human Services, only organized churches, associations of churches, and their “integrated auxiliaries” are exempted from the contraceptive and abortion drug mandate. 

That means religious hospitals, religious educational institutions, and many other non-profit religious ministries that are not formal departments or subsidiaries of a church, will not be included in the religious exemption.    

The federal contraceptive regulation requires that every health insurance policy issued in the United States must include coverage without co-pays for all “contraceptive” drugs and devices approved by the Food and Drug Administration.  This includes drugs like Ella and Plan B, which have both contraceptive and abortifacient qualities.  It also includes intrauterine devices that operate as abortifacients. 

Under the new scheme developed by the Obama Administration, religious non-profits will supposedly not have to include contraceptive coverage in their insurance policies or their self-insurance plan.  However, their insurer or third-party administrator will have to provide separate insurance policies to each of their employees that does include contraceptive coverage regardless of whether the employee wants it or not.      

The proposed “compromise” states that insurers must provide this supplemental contraceptive coverage at no cost to the employee.  This is a ludicrous concept, as the cost of such coverage will obviously be absorbed into the insurance company’s overall expenses, and be charged back to policyholders. 

“This is nothing but an accounting gimmick that forces religious organizations…to be the gatekeeper to objectionable services for their employees,” says a statement from American United for Life.  “The contraceptive coverage is legally required to piggy-back onto the insurance plan, regardless of the employer’s objections.” 

The sham compromise concocted by the Obama Administration still leaves for-profit religious employers at the mercy of the punitive mandate.  Christian business owners will still have to include coverage of abortifacient drugs in the health insurance programs they provide to their employees.  They will still face exceedingly harsh fines of $100 per day per employee if they fail to comply. 

“All Americans, not just those in church organizations, are guaranteed freedom of conscience in their daily lives and in their work,” commented Matt Bowman, senior legal counsel for the Alliance Defending Freedom.  “The government has no business putting religious freedom on the negotiating table, or picking and choosing who is allowed to exercise their faith.” 

“This country’s laws and constitution protect the religious freedom of all Americans, whether organized into religious bodies or not,”  says Francis Manion, senior counsel for the American Center for Law and Justice.  “Religious believers who want to conduct their businesses in a manner consistent with their religious beliefs have the same right to religious liberty as everyone else.” 

Christian medical authorities are also deriding the latest version of the mandate.  “Many employers, regardless of whether they carry a religious label or not, maintain strong conscience objections to participating in any plan that pays for pills that can cause the demise of a living human embryo,” says Dr. Gene Rudd, Executive Vice President of the Christian Medical Association. 

One of those employers is David Green, founder and President of the Hobby Lobby chain of craft stores.  Green says his company will not comply with the mandate despite the failure of a lawsuit filed in federal court to protect his religious liberties.  Hobby Lobby faces fines of $1.3 million per day under the penalty provisions of the mandate. 

While Health and Human Services Secretary Kathleen Sebelius continues to play games with the religious freedoms of the American people, legal challenges to the abortion drug mandate continue to accumulate.  At last count, there have been a total of 44 lawsuits filed in federal court challenging the constitutionality of the mandate on religious freedom grounds. 

One of the latest to weigh in is the Drury Development Corporation, which operates the Drury chain of hotels.  Drury was founded by devout Catholic Charles Drury, and is now managed by his son Tim.  Drury has filed a friend of the court brief in a lawsuit filed by K&L Contractors, a construction firm located in Highland, Illinois. 

“The Drury family are adherents of the Catholic faith and wish to conduct their business in a manner that does not violate the principles of that faith,” reads the brief authored by Americans United for Life.  “The Drury family believes that life is a sacred gift from God and that they are not permitted to cause or pay for the direct, intentional termination of human life.  The Drury Corporation is forced to choose between conducting business in a manner consistent with its religious principles or pay ruinous fines and penalties.” 

The federal court of appeals whose jurisdiction includes Missouri is making it very clear where they stand on the constitutionality of the abortion drug mandate.  For the second time, the 8th Circuit Court of Appeals has issued a preliminary injunction blocking enforcement of the mandate, this time in the case of Annex Medical, a medical device firm located in Minnetonka, Minnesota.  The 8th Circuit had previously issued an injunction preventing enforcement of the mandate against a St. Louis company, O’Brien Industrial Holdings. 

The only hope to halt application of the abortion drug mandate to every health insurance provider and consumer is a decision by the U.S. Supreme Court upholding conscientious objections based on religious convictions.  An ultimate decision by the High Court is not expected before the new regulation becomes effective.  There is a public comment period on the revised mandate through April 3rd, after which the contraceptive edict is expected to take full force and effect.

Written by Michael Foust

The Obama administration proposed a rule change Friday it says will appease the concerns religious organizations have about the abortion/contraceptive mandate, but legal groups who defend religious liberty called the proposal inadequate and said it fell far short of what is needed.

Religious groups had hoped the Department of Health and Human Services would announce that all religious organizations — universities, hospitals and charities — are exempt from the mandate, which requires employers to carry health insurance plans covering contraceptives and drugs that can cause chemical abortions. Churches, for example, are exempt from the mandate. Instead, HHS issued a rule it says allows for employees to obtain contraceptives and abortion-causing drugs without the religious employer taking part in the process. Religious liberty groups say employers still will be involved. 

The proposal also does nothing to help businesses such as Bible publisher Tyndale House or Christian-owned Hobby Lobby or any other for-profit whose owners have religious objections to contraceptives and/or abortion-causing drugs. 

“Having reviewed this proposed rule, we … have to say we’re extremely disappointed,” Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, said in a conference call with reporters. Becket Fund has helped lead the legal charge against the mandate. More than 40 lawsuits have been filed against the mandate. Duncan called the proposal “radically inadequate.”

According to an HHS website, under the proposal, the religious employer “would not have to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.” Employees “would receive contraceptive coverage through separate individual health insurance policies, without cost sharing or additional premiums.” The insurance company would be required to offer the drugs for free, HHS said. 

Religious organizations that are self-insured would have to contact a third party administrator, which would “work with a health insurance issuer to provide separate, individual health insurance policies at no cost for participants.” 

Religious liberty groups had multiple objections to the proposal. First, the groups said, religious organizations still will be required to carry an insurance plan that is tied to coverage of contraceptives and abortion-inducing drugs. Second, religious employers — particularly those who are self-insured — will be acting as “conduits” with health providers to ensure their employees can obtain the drugs. Third, it’s unclear who is paying for the “free drugs.” As some religious commentators were suggesting: Will insurance companies simply raise rates — and thereby pass the cost for the abortion-causing drugs on to the religious organization? 

Duncan said religious organizations are “going to have to carefully consider whether this accommodation really doesn’t change the moral landscape at all. It’s going to be up to them to make that determination. We believe they’re going to have some serious concerns about remaining unacceptably involved in the provision of these drugs and devices.”

Alliance Defending Freedom senior legal counsel Matt Bowman said the proposal still infringes on religious liberty.

“Religious non-profits will, in fact, be forced to provide an insurance plan with a provider that gives the religious group’s employees abortion-pill coverage in direct connection with that plan, the coverage is definitely not free, and the coverage is imposed ‘automatically’ even against the objection of many employees who don’t want free abortion-pill coverage for themselves or their daughters,” Bowman said.

To qualify for the proposal, an organization must self-certify that it “holds itself out as a religious organization,” according to HHS. Ironically that could mean that many of the nation’s leading pro-life organizations — despite being non-profits — won’t qualify for the accommodation because they’re technically not religious organizations.

The HHS announcement did nothing to change the coverage by for-profits. Hobby Lobby, the arts and crafts store whose Christian owners say they will not follow the mandate, apparently will face fines of more than $1 million each day if a federal court does not step in. Its owners always have made their faith a central part of their business. Their stores play Christian instrumental music and are closed on Sundays. Hobby Lobby contributes to Christian organizations and runs full-page ads in newspapers during the Easter and Christmas seasons with Gospel-centered messages.

The good news for Christian for-profits is they are winning in court, having seen 10 wins and only four losses. Hobby Lobby, though, is one of those losses. The issue likely is headed to the U.S. Supreme Court.

“The administration fails to understand,” said Gene Rudd of the Christian Medical Association, “that many employers and individual Americans, regardless of a religious label or not, maintain strong conscience objections to participating in any way, shape or form in a plan that promotes pills that the FDA says can cause the demise of a living human embryo — a developing baby in her earliest stage.”

Covered under the mandate are emergency contraceptives such as Plan B and ella that can kill an embryo after fertilization and even after implantation. Pro-lifers consider that action a chemical abortion.

The mandate was announced by HHS in August 2011 as part of the health care law championed by President Obama. Although the Supreme Court upheld the health care law last June, the justices’ ruling did not deal with the religious liberty issues surrounding the abortion/contraceptive mandate. That means the nation’s highest court could yet strike down what has been for religious groups and some business owners the most controversial part of the law.

Michael Foust is associate editor of Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress ) and in your email (baptistpress.com/SubscribeBP.asp).