United States Conference of Catholic Bishops

Comment on Interim Final Rules

Regulation 45 CFR Part 147 (2011)

31 August, 2011

Centers for Medicare & Medicaid Services
Department of Health and Human Services
Attn: CMS-9992-IFC2
P.O. Box 8010
Baltimore, MD 21244-8010

Re: Interim Final Rules on Preventive Services
File Code CMS-9992-IFC2

Dear Sir or Madam:

On behalf of the United States Conference of Catholic Bishops, we respectfully submit the following comments on the interim final rule on preventive services. 76 Fed. Reg. 46621 (Aug. 3, 2011). Our comments fall into two broad categories.

First, we comment on the mandate that all health plans cover prescription contraceptives, sterilization, and related patient education and counseling ("HHS mandate" or "the mandate"). This mandate, we submit, should be rescinded in its entirety. These are not "health" services, and they do not "prevent" illness or disease. Instead, they disrupt the healthy functioning of the reproductive system, introducing health risks in the process; and they are designed to prevent pregnancy, which is not a disease.1

The HHS mandate is also unprecedented in federal law and more radical than any state contraceptive mandate enacted to date. Insofar as it requires coverage of drugs that can operate to cause an abortion, the mandate violates the Weldon amendment, certain provisions of the Patient Protection and Affordable Care Act ("PPACA" or "the Act") dealing with abortion and non-preemption, and the Administration's own public assurances, both pre- and post-enactment, that the Act does not require coverage of abortion.

Finally, as applied to individuals and organizations with a religious objection to contraceptives, sterilization, and related counseling and education, the HHS mandate violates various protections under the Religion Clauses and Free Speech Clause of the First Amendment, as well as the Religious Freedom Restoration Act ("RFRA") and the Administrative Procedure Act ("APA").

Second, we comment on the regulation's religious exemption ("HHS exemption" or "the exemption"). The exemption provides no protection at all for individuals or insurers with a moral or religious objection to contraceptives or sterilization, who will experience burdens to conscience under this new mandate. Instead, it provides protection only to employers with similar objections, and even then to a very small subset of religious employers.

The exemption is narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates. The exemption also fails to make clear whether it covers sterilization and education and counseling about sterilization. By failing to protect insurers, individuals, most employers, or any other stakeholders with a religious objection to such items and procedures, the HHS exemption, like the mandate itself, violates the First Amendment and the APA.

In sum, we urge HHS to rescind the mandate in its entirety.2 Only rescission will eliminate all of the serious moral problems the mandate creates; only rescission will correct HHS's legally flawed interpretation of the term "preventive services." If HHS nonetheless persists in mandating coverage of contraceptives, sterilization, and related education and counseling, it must address the especially grave legal and constitutional problems it creates

(1) by including in the mandate those drugs that can cause an abortion, and

(2) by failing to protect all stakeholders with a religious or moral objection to the mandate.

HHS is legally forbidden from mandating coverage of any drug that can cause an abortion, and from forcing individuals or institutions to provide coverage for contraception, sterilization, or related education and counseling over their religious or moral objections.

Indeed, such nationwide government coercion of religious people and groups to sell, broker, or purchase "services" to which they have a moral or religious objection represents an unprecedented attack on religious liberty.

Our more detailed comments follow.