Dana Cody

Thomas Jefferson believed that “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Certainly he was referring to the free exercise clause of the first amendment to the U.S. Constitution which not too many years before was created by the Founding Fathers to protect religious liberty.

That liberty is under attack by new regulations from the U.S. Department of Health and Human Services. The regulations require insurance providers to cover contraceptives, including those with abortifacient propensities. When the regulations were finalized Providers were given a year or less in which to comply, conscientious objections notwithstanding.

An “exemption” is included for religious providers but it is so narrow that it brings to mind Justice Janice Brown’s comment that under this definition, even the ministry of Jesus Christ would be considered secular. (This comment was made in her dissent to Catholic Charities v. Superior Court, 32Cal.4th 527, 583 (2004), a case upholding California’s contraception mandate, which may have been the model for the HHS regulations.)

After the firestorm created by public outcry over the offensive and unconstitutional regulations this statement, in part, was issued by HHS:

“we’ve reached a decision on how to move forward. Under the rule, women will still have access to free preventive care that includes contraceptive servicesno matter where they work. So that core principle remains (emphasis added). But if a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance companynot the hospital, not the charitywill be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.”

Of course the employer will still be paying for these benefits. The net result of this decision is to force those with conscientious objections to support what they believe to be sinful.

The definition of an “exempted religious organization” under the HHS “Required Health Plan Coverage Guidelines” that has caused the public outcry and the filing of several lawsuits is follows:
A religious employer is one that:
1) Has the inculcation of religious values as its purpose;
2) Primarily employs persons who share its religious tenets;
3) Primarily serves persons who share its religious tenets; and
4) Is a non-profit organization under Internal Revenue Code section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii). 45 C.F.R. §147.130(a)(1)(iv)(B).
The distinguishing factor between the California regulations at issue in Catholic Charities (mentioned earlier) and the HHS regulations is that the California regulations were more accommodating: they left the option of not providing prescription coverage at all. This gave entities that fell outside the mandate’s narrow religious exemption a choice (admittedly a difficult choice, but at least a choice). They could end prescription coverage rather than violate their conscience. The HHS regulations give no such option. The entity must comply or suffer the consequences.

Some entities, those with employees of fewer than 50, may have health plans that can be “grandfathered” in under the HHS regulations. Needless to say, the rules are complex and open to interpretation at the discretion of those who drafted them.
When President Obama took office he took an oath to protect and defend the U.S. Constitution. Yet under his watch regulations have been enacted that eviscerate the free exercise rights of those who have conscientious objections to the use of contraceptives. Why isn’t Congress calling the Obama administration into account? As this regulation issued under the authority granted by Obamacare, did the legislators who enacted that law intend this type of result all along? Unless these regulations are firmly rejected, either with Congressional oversight, repeal or litigation, Obama’s promise of hope and change will become change with no hope because the very foundation of our Nation will have been destroyed.
Since its inception, LLDF has been defending the free speech rights of pro-life advocates and we intend to do everything we can to protect and defend their rights of conscience as the battle for life rages over contraceptives and abortifacients.

[This article was printed in Lifeline Vol. XXI, No. 1 (Spring 2012) Read in PDF.]