On Friday, March 16, 2012, the Administration issued an Advance Notice of Proposed Rulemaking regarding the contraceptive and sterilization mandate issued under the new health care law. This notice describes several approaches to the “accommodation” described by the President on February 10, 2012 and seeks input from the public. This is not a proposed rule. It is a general description of what the agencies plan to do and presents an opportunity for public comment.
Here, in pertinent part, is what was proposed in the February “accommodation:”
[W]e’ve reached a decision on how to move forward. Under the rule, women will still have access to free preventive care that includes contraceptive services—no matter where they work. So that core principle remains. 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 company—not the hospital, not the charity—will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.
Of course, as the “accommodation” currently stands, the employer is still footing the bill for the health plan, making them complicit in providing contraceptives despite conscientious objections.
According to the administration’s March 16 notice, “contraceptive coverage will not be included in the plan document, contract, or premium charged to the religious organization” for religious employers. But the insurance company will provide the coverage to beneficiaries anyway. Insurance companies “would pay for contraceptive coverage from the estimated savings from the elimination of the need to pay for services that would otherwise be used if contraceptives were not covered.” The “eliminated” services are prenatal care, labor and delivery.
For self-insured plans the proposal is more complicated. It is suggested that the company hired to process claims (known as a third party administrator) would be tasked with providing contraceptive and sterilization coverage. Since third party administrators simply process claims and do not provide insurance, their only source for paying for the contraceptive and sterilization services would be the religious employer’s funds. The administration invites suggestions for other ways to pay for the coverage in these cases and highlights four approaches:
- third party administrators would raise money from non-profits,
- “multi-state” plans under contract with the Office of Personnel Management would be required to pay,
- third party administrator would to use their drug rebates and/or other fees, or
- the “reinsurance” program which will only be in effect through 2016 would pay for the coverage.
The notice also requests input on other subjects including what kinds of religious or moral objectors should be offered an accommodation, and whether religious organizations should be allowed to object to some, but not all forms of contraceptive coverage.
Keep in mind that the definition of religious or moral objectors is so narrow that it is virtually meaningless. The same sort of exemption was addressed by Justice Janice Brown in the California case Catholic Charities v. Superior Court, 32Cal.4th 527, 583 (2004). Justice Brown stated that definition was such a “crabbed and constricted view of religion that even the ministry of Jesus Christ would be considered secular.”
It is time for the charade to stop. Our first freedom, the right to freely exercise religion under the First Amendment to the U.S. Constitution should be controlling here, not the definition of religion by an administration that seems bent on obliterating religious liberty. This scheme not only eviscerates the Free Exercise of religion, but comes dangerously close to the unjustified entanglement of the federal government in religion—in contravention of the Establishment Clause.
Americans need to call on President Obama to remember that he took an oath to protect and defend the Constitution of the United States, not devise still more unconstitutional schemes to obliterate religious liberty.
Action Item: Submit your own comments on this proposal, either electronically online, or by mail at the addresses indicated at http://www.ofr.gov/OFRUpload/OFRData/2012-06689_PI.pdf.