United States Conference of Catholic Bishops
Comment on Interim Final Rules
Regulation 45 CFR Part 147 (2011)
Contents
A. Our
prior comments urging HHS to limit the "preventive services"
mandate
B. The HHS
mandate is unprecedented
C. .
. .
the
HHS mandate violates federal laws and public assurances
1. Violation of the Weldon Amendment.
2. Violation of PPACA § 1303(b)(1)(A).
3. Violation of PPACA § 1303(c)(1).
4. Violation of Public Assurances Against Mandatory Coverage of
Abortion.
D.
. . . violates the Religion and Free Speech
Clauses of the . . . Constitution.
1. Religious Discrimination.
2. Interference with Church Governance.
3. "Substantial Burdens" That Trigger Strict Scrutiny.
4. Compelled Speech.
5. Expressive Association.
E. The HHS mandate violates the Religious Freedom
Restoration Act.
F. The HHS mandate violates the Administrative Procedure
Act.
A.
. . . is narrower than the exemptions in the vast majority of
states
B.
. . . is narrower than any other religious
exemption in federal health care law.
C.
. . .unclear whether exemption applies to sterilization
D.
. . .fails to encompass any individuals and most institutions
E.
. . . violates the Religion Clauses of the
First Amendment.
F.
. . . violates the Administrative Procedure
Act.
Although HHS has not requested comments on this topic, we urge
HHS, in
the strongest possible terms, to reconsider its decision to
include contraceptives
(including abortifacients) and sterilization among the
"preventive services" that
insurers will be forced to cover. That critical change is
appropriate for the
following reasons.
urging HHS to limit the "preventive
services" mandate to services that promote health and
prevent disease should be revisited and have been
reinforced by subsequent scientific studies.
In our comments last year, we explained why HHS should not
includecontraceptives in any list of mandated "preventive services." We
attach thoseearlier comments, marked as Addendum A, and incorporate them by
reference intothe present set of comments so they may be considered anew.3
Many of our previous observations about contraceptives are
equally
applicable to sterilization. Subjecting a person to drugs and
procedures that render
a healthy bodily system dysfunctional-in this case, making a
woman temporarily
or permanently infertile-is not properly seen as basic health
care, much less as an
appropriate candidate for mandatory health coverage. Indeed,
many contraceptive
drugs, far from preventing disease and injury, are associated
with adverse health
outcomes. Just as these drugs are not "health" services, they
are not "preventive"services; they prevent (or abort) pregnancy, and pregnancy is
not a disease. Our
earlier comments addressed this at some length.
In the brief time since those comments, additional studies have
been
published which suggest that newer hormonal contraceptives may
increase
women's risk of blood clots to a greater extent than earlier
drugs,4 and that taking
hormonal contraceptives is associated with an increased risk
that women will both
contract and transmit HIV.5 Yet screening and counseling to
prevent HIV
infection is a widely accepted element in HHS's list of
"preventive services" for
women. Mandating coverage for drugs that can increase this risk
places the
interim final rule at war with itself.
B. The HHS mandate is unprecedented at the federal level and
the most radical among the States.
At the federal level, the HHS mandate is an utter novelty. Until
now, no
federal law of any kind, or at any time, has required private
health plans to cover
contraceptives or sterilization. Efforts to pass such a law in
Congress have
consistently failed.6
When compared with the laws of the 50 states, the HHS
contraceptive
mandate is the most radical in the Nation. A substantial number
of states (at least
22) have no contraceptive mandate whatsoever. Of the 28 states
with some type of
contraceptive mandate,7 none is as sweeping as the one adopted
by HHS:
• First, no state requires coverage of contraceptives in all
plans. State
contraceptive mandates generally exclude self-insured and ERISA
plans.
• Second, no state (except California and Georgia) mandates
contraceptive
coverage in plans that have no prescription drug coverage.
• Third, no state (except Vermont) requires coverage of
sterilization.
Thus, the requirement that all plans cover contraceptives
(including
"emergency contraceptives") and sterilization is not only
unprecedented in federal
law, but far more sweeping than any state law. The fact that a
mandate of such
scope has not commanded the support of any legislature in this
country is a telling
commentary on how radical the HHS mandate is, and how far
removed it is from
legislatively-enacted public policy throughout the Nation.8
C. By requiring coverage of drugs that can cause abortion,
the
HHS mandate violates the Weldon amendment, PPACA's
own abortion and non-preemption provisions, and the
Administration's own assurances that PPACA would not be
construed to require coverage of abortion.
The HHS mandate requires coverage of "all FDA-approved
contraceptives."HHS claims in a fact sheet that the mandate does "not include
abortifacient
drugs."9 However, the regulation itself, which obviously takes
precedence over
any governmental "fact sheet," contains no such exclusion.
Moreover, studies
show that at least one drug approved by the FDA for
"contraceptive use," a close
analogue to the abortion drug RU-486 (mifepristone), can cause
an abortion when
taken to avoid pregnancy.10 And the prospect remains that other
drugs, approved
now or in the future by the FDA for contraceptive use, will be
shown to have a
similar effect.
Insofar as the HHS mandate
requires coverage of any drug that operates to cause an
abortion, it violates the
Weldon amendment, which has been included in every Labor/HHS
appropriations
law since 2004.11 The amendment states that "None of the funds
made available inthis Act [i.e., the Labor/HHS appropriations bill from which HHS
derives its
funding] may be made available to a Federal agency or program …
if such agency… [or] program … subjects any institutional or individual health
care entity to
discrimination on the basis that the health care entity does not
… pay for … [or]
provide coverage of … abortions" (emphasis added). The term
"health care entity"
is defined by the Weldon amendment to include "a
provider-sponsored
organization, a health maintenance organization, a health
insurance plan, or any
other kind of health care facility, organization, or plan."
By operation of the Weldon amendment, no Labor/HHS funds may be
made
available to HHS if it subjects any health care plan to
discrimination on the basis
that the plan does not provide coverage of abortions. Obviously,
to require that all
plans cover any form of abortion is the most direct form of
abortion-based
discrimination one could imagine against plans that would
exclude abortion
coverage. Thus, insofar as the HHS contraceptive mandate
requires coverage of
any drug that can cause an abortion, it violates the Weldon
amendment.12
Insofar as it requires
coverage
of abortifacient drugs, HHS's contraceptive mandate also
violates the abortion and
non-preemption provisions of the Patient Protection and
Affordable Care Act ("PPACA" or "Act"). Section 1303(b)(1)(A) of PPACA states that
"nothing in this
title"-i.e., title I of the Act, which includes the provision
dealing with "preventive
services"-"shall be construed to require a qualified health plan
to provide
coverage of [abortion] services … as part of its essential
health benefits for any
plan year." As Section 1303 goes on to state, it is "the issuer"
of a plan that "shall
determine whether or not the plan provides coverage" of abortion
services. Thus,under PPACA, it is not HHS that has the authority to decide
whether a plan covers
abortion, but the plan issuer.
There is no indication in the text or legislative history of
PPACA that
Congress intended, on the one hand, to bar the mandatory
coverage of surgical
abortion, but to permit the mandatory coverage of so-called
medical (i.e., drug induced)
abortion. Indeed, Congress itself drew no distinction between
surgical
and medical abortion when, in PPACA, it decided to give plans
the discretion
whether or not to cover abortion. If HHS were to impute this
senseless distinction
to Congress, it would construe the law unreasonably.
Insofar as the HHS mandate
requires coverage of any such drug, it also conflicts with State
laws in at least 11
states that restrict abortion coverage in all plans or in all
exchange-participating
plans.13 Section 1303(c)(1) of PPACA states that nothing in the
Act preempts, or
has any effect on, any State law regarding abortion coverage.
Accordingly, the
HHS mandate, as applied to any drug that can cause abortion, is
invalid where it
conflicts with any state law restricting abortion coverage.
Finally, the mandate violates the Administration's
public assurances,both before and after enactment of PPACA, that the Act would not
be construed to require coverage of abortion. Such assurances played a major
role in securing final passage of the bill, and were formalized in an Executive Order
issued by thePresident. See Executive Order 13535, "Ensuring Enforcement and Implementation of Abortion Restrictions in the Patient
Protection and AffordableCare Act," 75 Fed. Reg. 15599 (Mar. 24, 2010). Any federal
mandate to require such coverage now in regulations implementing PPACA would run
afoul of the Administration's previously-stated position on this issue.
Thus, if HHS were to decline to rescind the mandate entirely,
then it wouldviolate the Weldon amendment, PPACA, and the Administration's
own statedpolicy, unless it excluded from the mandate any drug that can
cause an abortion.
The HHS mandate violates several distinct protections under the
Religionand Free Speech Clauses of the First Amendment:
(1) Free
Exercise and
Establishment Clause protections against laws that discriminate
based on religion;
(2) Free Exercise and Establishment Clause protections against
laws that interferewith internal governance of religious institutions;
(3) Free
Exercise protections
against laws that impose "substantial burdens" on religious
exercise
(a) pursuant to a system of "individualized exemptions," or
(b) in conjunction
with other
fundamental rights (so-called "hybrid rights");
(4) Free Speech
protections against
compelled speech; and
(5) Free Speech protections of expressive
association.14
The contraceptive mandate is a
"religious
gerrymander" that targets Catholicism for special disfavor sub
silentio and
therefore violates both the Free Exercise and Establishment
Clauses of the First
Amendment. Though neutral on its face, "the effect of [the
mandate] in its real
operation is strong evidence of its object." Church of the
Lukumi Babalu Aye v.City of Hialeah, 508 U.S. 520, 535 (1993). Before the mandate,
insurers were free
to issue plans covering contraception and sterilization (or
not); employers were free
to sponsor, and usually subsidize, plans with this coverage (or
not); and employees
were free to choose this coverage and pay for it through their
premiums (or not).
As a result of this freedom, not only was religious conviction
accommodated
among all these stakeholders, but coverage for contraception and
sterilization was
very widespread.15
HHS would nonetheless force those few who would object to
selling,buying, or brokering the coverage to do so.16 In other words,
the class that suffers
under the mandate is defined precisely by their beliefs in
objecting to these"services." Moral opposition to all artificial contraception and
sterilization is a
minority and unpopular belief, and its virtually exclusive
association with the
Catholic Church is no secret. Thus, although the mandate does
not expressly target
Catholicism, it does so implicitly by imposing burdens on
conscience that are well
known to fall almost entirely on observant Catholics-whether
employees,employers, or insurers. Such religious discrimination is
forbidden by both the Free
Exercise and Establishment Clauses of the First Amendment. See,
e.g., Lukumi,
508 U.S. at 532 (Free Exercise Clause); Larson v. Valente, 456
U.S. 228, 244-45(1982) (Establishment Clause).17
2. Interference with Church Governance.
In a well-established
line of
cases under both Religion Clauses, the Supreme Court has
acknowledged the"power [of churches] to decide for themselves, free from state
interference, matters
of church government as well as those of faith and doctrine."
Kedroff v. St.Nicholas Cathedral, 344 U.S. 94, 116 (1952).18 It is difficult
to imagine a more
intrusive form of state interference in church governance than
laws forcing
churches as employers (save those few excepted) to purchase for,
and then provide
without charge to, their employees services that violate the
religion's own moral
rules. It is no less problematic when church insurers-mutual aid
societies that
come into existence precisely to protect a religious community
and its members-are forced to sell coverage that violates the community's own
rules. If the state
forces church institutions to violate their own moral rules,
then their governance
structure is damaged not only by the immediate compulsion, but
also by severely
compromising that church's ability to enforce those same rules
internally in the
future. HHS should avoid this unprecedented-and
unconstitutional-interference with the ability of the Church to govern itself and its
institutions.
In
Sherbert v.Verner, 374 U.S. 398 (1963), the Supreme Court construed the
Free Exercise
Clause generally to forbid "substantial burdens" on religious
exercise, unless they
satisfy strict scrutiny. Id. at 403. But in Employment Division
v. Smith, 494 U.S.872 (1990), the Supreme Court distinguished
Sherbert, narrowing
the application
of the "substantial burdens" test to two, more limited
circumstances:
(a) where the
burdens are applied pursuant to an "individualized governmental
assessment of the
reasons for the relevant conduct," id. at 884; and
(b) where the
burden involves a"hybrid situation" implicating other constitutional protections,
such as the
freedoms of speech or association, id. at 881-82.
Both circumstances are present here, creating two independently
sufficient
violations of the Free Exercise Clause. The HHS mandate imposes
"substantial
burdens" on the religious exercise of Catholic employers,
employees and insurers
with moral and religious objections to contraception and
sterilization; those
burdens trigger strict scrutiny because they are imposed both
pursuant to a system
of "individualized exemptions," and in a manner that involves
"hybrid rights"; and
those burdens are not justified by a "compelling state
interest."
A "substantial burden" is imposed, at a minimum, where the law
forces a
person or group "to choose between following the precepts of
[their] religion and
forfeiting benefits, on the one hand, and abandoning one of the
precepts of [their]religion in order to accept [government benefits], on the other
hand." Sherbert,374 U.S. at 404. This threshold is far exceeded here, because
church employees,employers, and insurers must choose between religious observance
and the
violation of a regulatory mandate-not the mere loss of a
government benefit.
HHS has imposed that burden pursuant to a "mechanism for
individualized
exemptions," Smith, 494 U.S. at 884. Indeed, the burdens would
not be imposed at
all, if not for a series of discretionary decisions by HHS-first
to construe"preventive services" to include contraception and
sterilization, and so to impose a
burden almost exclusively on Catholics; then to establish the
narrow, four-part
exemption for a subset of religious employers, drafted by the
ACLU for the
California legislature; and then to apply that exemption on a
case-by-case basis to
exclude an employer. This stands in stark contrast to the kind
of across-the-board
rules that the Court in Smith was so concerned to insulate from
constitutional
challenge in cases where they happen to burden religious
exercise.
The mandate also burdens religious exercise in a manner that
implicates
other fundamental rights, creating a "hybrid situation" that
also triggers strict
scrutiny under Smith. As discussed further below, the mandate
compels expression
by, and interferes with the expressive association of, religious
insurers and
employers, who are forced to offer for sale and to sponsor
services that they exist
in part to oppose.
Finally, the burdens are not "narrowly tailored" to serve any
"compellingstate interest." The particular "preventive services" at issue
are not life-saving, and
do not even prevent disease; they are designed to prevent the
healthy state of
pregnancy, and can actually introduce health risks. Moreover, "a
law cannot be
regarded as protecting an interest 'of the highest order' ...
when it leaves
appreciable damage to that supposedly vital interest
unprohibited." Lukumi, 508U.S. at 546. The law at issue here, at a minimum, admits of a
construction that
allows no advancement at all of the interest of maximizing
coverage for
contraception and sterilization, as HHS is entirely free not to
declare them"preventive services." In other words, if Congress did not even
see fit to make
explicit that these "services" should be included within the
mandate, HHS's
decision to include them cannot fairly be said to serve a
"compelling state
interest."
And even if the interest were somehow "compelling," the law is
not"narrowly tailored" to serve that interest. If the mandate
remains in place, it seems
entirely probable that many individuals and organizations,
instead of purchasing
and sponsoring plans, will feel obliged in conscience to do
precisely the opposite
by dropping coverage altogether, rather than compromising their
religious and
moral beliefs. Thus, the mandate is not well tailored to the
goal of expanding
access to coverage, because it encourages individuals and
organizations to drop
coverage.19
The HHS mandate also interferes with the
right
of free speech. It does so by coercing many conscientious
objectors, including but
not limited to religious organizations, to subsidize-and thereby
endorse-conduct
that they teach or otherwise state is wrong. See, e.g., Keller
v. State Bar of
California, 496 U.S. 1 (1990) (holding that state bar members
could not be
compelled to finance political and ideological activities with
which they disagree);Abood v. Detroit Board of Education, 431 U.S. 209 (1977)
(holding that state
employees could not be required, consistent with the First
Amendment, to provide
financial support for ideological union activities unrelated to
collective
bargaining).
When a religious organization in particular pays for private
conduct, the
inescapable message is that it does not disapprove of that
conduct. As noted
above, a religious organization cannot communicate an effective
message that
conduct is morally wrong at the same time that it subsidizes
that conduct. In
particular, Catholic organizations cannot effectively and
persuasively communicate
the Church's teaching that contraception and sterilization are
immoral if they
simultaneously pay for contraceptives for their employees or (in
the case of
colleges and universities) for their students.
In short, the First Amendment protects the right of these church
entities "to
hold a point of view different from the majority and to refuse
to foster … an idea
they find morally objectionable." Wooley v. Maynard, 430 U.S.
705, 715 (1977).
The HHS mandate violates this bedrock principle.
In Boy Scouts of America v. Dale, 530
U.S.640 (2000), the Court held that the Scouts' "freedom of
expressive association"under the Free Speech Clause prevented the government from
enforcing its public
accommodations law to require the inclusion of a gay assistant
scoutmaster. Id. at648. The Court held that compelling the Scouts to admit Dale
into a leadership
position would "force the organization to send a message, both
to the youth
members and the world, that the [organization] accepts
homosexual conduct as a
legitimate form of behavior." Id. at 653.
Similarly, in Hurley v. Irish-American Gay, Lesbian & Bisexual
Group, 515U.S. 557 (1995), a unanimous Court held that the organizers of a
St. Patrick's Day
parade had a First Amendment right to exclude a gay and lesbian
group whose
presence was thought to communicate a message about homosexual
conduct to
which the organizers objected. The parade organizers had that
right even though
they had no particular message on the subject that they wished
to convey-only a
preference "not to propound a particular point of view." Id. at
575. Again, the"principle of speaker's autonomy" prevailed. Id. at 580.
Church organizations have an even stronger right than the parade
organizers
and Boy Scouts to join together in an organization that reflects
a particular set of
beliefs; they have the additional protection of the Religion
Clauses. And if nonreligious
organizations have a constitutional right to exclude individuals
whose
mere presence was thought by those groups to send a message that
they did not
like, then how much clearer the right of a church organization
not to subsidize conduct that contradicts its teaching.
The compelled subsidization in this case strikes at the heart of
the Church's
ability to communicate its unambiguous commitment to basic moral
teachings and
to form associations that maintain their adherence to those
teachings. The Free
Speech Clause forbids such compulsion, and so HHS should avoid
it.
The Religious Freedom Restoration Act ("RFRA") requires that
strict
scrutiny be applied to any action of the federal government that
substantially
burdens the exercise of religion. 42 U.S.C. 2000bb-1(c). For the
reasons noted
above, see supra Section I.D.3., the mandate triggers and fails
strict scrutiny and
therefore violates RFRA.
Because the HHS mandate violates the Constitution and RFRA, it
is not inaccordance with law. It therefore violates the Administrative
Procedure Act. 5U.S.C. § 706 (authorizing a court to "hold unlawful and set
aside agency action"that is "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordancewith law").20
Having addressed the legal flaws in the HHS mandate, we turn
next to the
legal defects in the exemption.
A. The HHS exemption is narrower than the exemptions in the
vast majority of states with contraceptive mandates.
HHS claims that its exemption is "based on existing definitions
used bymost States" that have a religious exemption from a
contraceptive mandate. 76
Fed. Reg. at 46623 (emphasis added). The claim is demonstrably
false. As noted
below, the HHS exemption is in place in only three states,21 and
most states with
religious exemptions to a contraceptive mandate have broader
exemptions.
Under the interim final rule, a "religious employer" is exempt
from the HHS
mandate if it is an organization that meets all of the following
criteria:
(a) its
purpose is the inculcation of religious values,
(b) it primarily
hires persons who
share the organization's religious tenets,
(c) it primarily
serves person who share
those tenets, and
(d) it is a nonprofit as described in sections
6033(a)(1) and section
6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.22
This language is virtually identical to the religious employer
exemption in
California's contraceptive mandate, which was drafted by the
ACLU.23 Notably,the ACLU has taken the view that "[a]mong health care
institutions, Christian
Science sanatoria may exemplify those that should qualify for a
religious
exemption" from mandates like those at issue here, because they
"are staffed by
Christian Science healers, and they attend only to those seeking
to be healed
exclusively through prayer." Catherine Weiss, et al., ACLU
Reproductive
Freedom Project,
Religious Refusals and Reproductive Rights
10 (2002). Thus, the ACLU
assures us,"[s]uch institutions generally conform to the definition set out
in the 'religious
employer' exemption to California's contraceptive equity law."
Id. Far from
being used in "most states," this language is well outside the
mainstream and is ill suited
to nationwide application.
It is important to note that almost half the states have no
contraceptive
mandate, and therefore leave people and institutions free to
buy, sponsor, or sell
health coverage without contraception and sterilization.
Moreover, as HHS
acknowledges (76 Fed. Reg. at 46623), most states with a
contraceptive mandate have some kind of religious exemption.24 Nineteen states have an
exemption from
a state contraceptive mandate.25 Of those 19 states:
• Only three have a religious exemption that is as narrow as the
one set outin the interim final rule.26
• Twelve states have a broader exemption.27
• Twelve states do not require that the exempt organization's
purpose be theinculcation of religious values.28
• Twelve states do not require that the exempt organization
primarily hirepersons who share the organization's religious tenets.29
• Thirteen states do not require that the exempt organization
primarily servepersons who share those tenets.30
• Sixteen states do not require that the exempt organization
satisfy the taxcode criteria set out in the fourth prong of the HHS
exemption.31
Thus, the exemption set out in the interim final rule is among
the narrowest
in the Nation. It is as if HHS asked: "Which state has the
narrowest conscience
exemption from a contraceptive mandate?"; and then proceeded to
adopt that
exemption as the one that will govern in all 50 states.
Congress has consistently supported conscience protection with
respect to
health services. Family planning policy is just one illustration
of this policy. For
example, every year since 1986, Congress has prohibited
discrimination against
foreign aid grant applicants who offer only natural family
planning on account of
their religious or conscientious convictions.32 Every year since
1999, Congress has
exempted religious health plans from a contraceptive coverage
mandate in the
federal employees' health benefits program, and prohibited other
health plans in
this program from discriminating against individual health
professionals in the plan
who object to prescribing or providing contraceptives on moral
or religious
grounds.
33 Every year since 2000, Congress has affirmed its
intent that a
conscience clause protecting religious beliefs and moral
convictions be a part of
any contraceptive mandate in the District of Columbia.34
Federal conscience protections are not limited to abortion and
contraceptives. The Church amendment protects conscientious
objection to sterilization (42 U.S.C. §§ 300a-7(b), 300a-7(c)(1), and
300a-7(e)) and, in
programs funded or administered by HHS, to any health service to
which there is a
moral or religious objection (42 U.S.C. §§ 300a-7(c)(2) and
300a-7(d)). Congress
has required that the Medicare and Medicaid statutes not be
construed to require
Medicare + Choice or Medicaid managed care plans to provide
counseling and
referral services to which they have a moral or religious
objection. 42 U.S.C.§ 1395w-22(j)(3)(B) (Medicare); 42 U.S.C. § 1396u-2(b)(3)
(Medicaid).
Similar protections have been adopted by regulation. See, e.g.,
48 C.F.R.§ 1609.7001(c)(7) (stating that in the federal employees' health
benefits program,"[p]roviders, health care workers, or health care plan
sponsoring organizations are
not required to discuss treatment options that they would not
ordinarily discuss in
their customary course or practice because such options are
inconsistent with their
professional judgment or ethical, moral or religious
beliefs").35 HHS itselfrecognizes that plans may not always provide particular services
because or moral
or religious objections. See, e.g., 42 C.F.R. § 438.52
(contemplating circumstances
in which a plan or provider "does not, because of moral or
religious objections,
provide the service the enrollee seeks").
Even if these and similar provisions are not directly applicable
to the interimfinal rule, they underscore a consistent federal policy to
protect the conscience
rights of participants in the market for health services and
health coverage. The
interim final rule deviates from that policy by ignoring the
conscience rights ofstakeholders with religious or moral objections to
contraceptives and sterilization.
C. It is unclear whether the HHS exemption even applies to
sterilization and/or counseling and education about
sterilization.
The interim final rule states that the Health Resources and
Services
Administration ("HRSA") "may establish exemptions from [its]
guidelines … with
respect to any requirement to cover contraceptive services under
such guidelines."76 Fed. Reg. at 46626 (emphasis added). The preamble reiterates
that HRSA has
the discretion to exempt religious employer from the guidelines
"where contraceptive services are concerned." Id. at 46623 (emphasis
added).
It is unclear whether HHS considers sterilization to be a
"contraceptive
service." As a result, it is uncertain whether the exemption
even applies to sterilization or related counseling and education, as HRSA lists
sterilization as a
distinct service. This is a serious oversight, because
sterilization ordinarily
disables a woman's fertility permanently, therefore prompting
especially important
concerns from the viewpoint of medical ethics and government
policy. Congress
decided long ago that certain enumerated Acts of Congress should
not be construed
to require participation in sterilization. 42 U.S.C. § 300a-7.
The lack of clarity may have been a mere oversight but, left
unaddressed,
raises a question of unconstitutional vagueness. If HHS rejects
our urgent plea torescind the mandate, it should create an exemption that will
adequately protect the
right of all stakeholders not to offer or purchase coverage for
contraceptives,sterilization, or related counseling and education. An exemption
that applies only
to some of these stakeholders, or some of these "services," is
plainly inadequate.
D. The HHS exemption fails to encompass
any individuals and
most institutions with moral or religious objections to
contraception or sterilization.
Until now, no federal law has prevented private insurers from
accommodating purchasers and plan sponsors with moral or
religious objections to
certain services. Plans were free under federal law to
accommodate those
objections by allowing purchasers to choose not to buy coverage
for gender change
surgery, contraceptives, in vitro fertilization, or other
procedures that the purchaser
or sponsor found religiously or morally problematic. Likewise,
federal law did not
forbid any insurer, such as a religiously-affiliated insurer, to
exclude from its plans
any services to which the insurer itself had a moral or
religious objection. Indeed,the freedom to exclude morally objectionable services has
sometimes been stated
affirmatively in federal law. For example, as noted above, the
Federal Employees
Health Benefits Program expressly allows health plans which
exclude
contraceptive coverage to be offered to federal employees if the
carrier has areligious objection to such coverage.
Under the interim final rule, this will no longer be true. For
the first time
under federal law, HHS will require all plans (except
grandfathered plans, for as
long as they retain their grandfathered status) to include
coverage for
contraceptives and sterilization. Individuals with a moral or
religious objection tothese items and procedures will now be affirmatively barred by
the HHS mandate
from purchasing a plan that excludes those items.
Religiously-affiliated insurers
with a moral or religious objection likewise will be
affirmatively barred from
offering a plan that excludes them to the public, even to
members of their own
religion. Secular organizations (insurers, employers, and other
plan sponsors) with
a moral or religious objection to coverage of contraceptives or
sterilization will be
ineligible for the exemption. And any religious organization
that does not meet
HHS's exceedingly crabbed definition of "religious employer"
will also be
affirmatively barred from purchasing such a plan even for its
own employees.
This last point requires some elaboration. The HHS exemption,
applicable
nationwide, forces all church institutions with an
outreach-oriented mission to
provide health coverage for items that the institutions
themselves hold and teach to
be immoral, in violation of their institutional identity and
sincerely held beliefs.
The HHS exemption would penalize church organizations that
engage in public
ministry or service, by forbidding them to practice what they
preach. This
represents an unprecedented intrusion by the federal government
into the precincts
of religion that, if unchecked here, will support ever more
expansive and corrosive
intrusions in the future.
Just as alarming as the fact of HHS's intrusion into the
precincts of religious
organizations is the manner in which HHS has accomplished the
intrusion, namely,
by defining certain religious organizations as, in effect, "not
religious enough"-and therefore not entitled to any exemption from the
mandate-based on who they
serve, how they constitute their workforce, and whether
"inculcation of religious
values" is "the purpose" of the agency. HHS has concluded, for
example, that a
church is not a religious employer if it
(a) serves those who
are not already
members of the church,
(b) fails to hire based on religion, or
(c) does not restrict its
charitable and missionary purposes to the inculcation of
religious values.
Under
such inexplicably narrow criteria-criteria bearing no reasonable
relation to any
legitimate (let alone compelling) government purpose-even the
ministry of Jesus
and the early Christian Church would not qualify as "religious,"
because they did
not confine their ministry to their co-religionists or engage
only in a preaching
ministry. In effect, the exemption is directly at odds with the
parable of the Good
Samaritan, in which Jesus teaches concern and assistance for
those in need,
regardless of faith differences. While the federal government
can distinguish
between a church and a secular entity for purposes of
accommodating religion, the
government has no business engaging in religious gerrymanders,
whereby some
churches are "in" and others are "out" for regulatory purposes
based on who their
teaching calls them to serve, how they constitute their
workforce, or whether they
engage in "hard-nosed proselytizing." University of Great Falls
v. NLRB, 278F.3d 1335, 1346 (D.C. Cir. 2002). See also Colorado Christian
Univ. v. Weaver,534 F.3d 1245, 1257-60 (10th Cir. 2008).
By taking a view of religion that is stingier than any ever
placed into federal
law, HHS would pressure a large number of religiously-affiliated
organizations
with conscientious objections to contraceptives and
sterilization-including
religiously-affiliated social service agencies, hospitals,
colleges and universities-either to provide coverage for these, or to drop health coverage
altogether. This
would include the freestanding plans that religiously-affiliated
colleges and
universities offer their own students.36
As discussed in the preceding section, the HHS exemption does
not apply to
individuals, insurers, and many other stakeholders with a
religious or moral
objections to contraception or sterilization. At to those
stakeholders, the mandate
continues to suffer from the same constitutional and statutory
defects that we
described previously.37
In addition, each prong of the four-pronged exemption is
constitutionally
problematic, and the exemption itself, like the mandate,
violates the Religion
Clauses of the First Amendment.
First, the government constitutionally may not "troll through a
person's or
institution's religious beliefs" to determine whether its
purpose is to inculcate
"religious values." Univ. of Great Falls, 278 F.3d at 1341-42;
see also Colo.Christian Univ.¸ 534 F.3d at 1261-66. Nor may the government
constitutionally
limit an exemption solely to religious institutions that engage
in "hard-nosedproselytizing." Univ. of Great Falls, 278 F.3d at 1346. Many
religious
organizations are not engaged in proselytizing when they deliver
social, medical,
psychological, and educational services, but they provide these
services precisely
for religious and moral reasons.
Second, the government may not decide that organizations are
sufficiently
"religious" only if they primarily serve and employ their
co-religionists. In effect,HHS is purporting to distinguish between religious denominations
and
organizations that are, so to speak, insular in their workplace
and ministry, and
those that have a missionary outlook. This is blatantly
unconstitutional.38 Church
agencies with the temerity (in the government's view) to hire
and serve persons
other than their own members are penalized by the HHS exemption
or,alternatively, forced to fire non-members and withdraw from or
limit public
service. Such a forced choice is offensive, discriminatory, and
unconstitutional
under the Religion Clauses. The second and third prongs are also
problematic
from a practical standpoint, because they require religious
organizations to make
potentially intrusive inquires into the religiosity of all their
job applicants and
clients.
Finally, the last prong of the exemption, which tracks certain
of the annual
Form 990 exemptions available under section 6033 of the Internal
Revenue Code,
is constitutionally defective because it bears no rational
relationship to the purpose
of either the mandate or the exemption.
Some explanation is necessary. The Form 990 filing
requirement-the
requirement from which section 6033(a)(2)(A)(i) and (iii) carve
out exemptions-serves a two-fold purpose: it provides IRS with information
necessary to the
administration of the tax laws, and it makes tax-exempt
organizations financially
accountable to the IRS and the general public. This federal
exemption from filing
the annual Form 990 reflects Congressional sensitivity to the
church-state
entanglement issues inherent in mandating financial reporting
and accountabilityon the part of churches and religious organizations. The
exemption is an attempt to
strike a balance between the requirements of tax administration,
on the one hand,
and the desire to avoid unnecessary entanglement in the
financial affairs of certain
organizations closely affiliated with churches on the other. The
filing exemption,
however, has no relevance whatsoever to church welfare or
benefit plans, having
been devised, as noted above, to serve an entirely different
purpose.
Ironically, in deciding to track certain of the Form 990 filing
exemptions,
HHS overlooked another exemption that was developed specifically
to
accommodate pension and welfare plans offered by churches,
namely the "churchplan" exemption found in section 414(e) of the
Internal Revenue
Code. 26 U.S.C.§ 414(e). Congress exempted "church plans" from the Employee
Retirement
Income Security Act of 1974 ("ERISA"), see 29 U.S.C. § 1002(33),
and in 1980
broadly defined "church plan" to include any pension or welfare
plan that covers
employees of a church or tax-exempt organization associated with
a church. See Multiemployer Pension Plan Amendments Act of 1980, Pub. L.
96-364. The term"associated with a church" is defined expansively to include any
organization that
shares common religious bonds and convictions with a church. 26
U.S.C.§ 414(e)(3)(D); 29 U.S.C. § 1002(33)(c)(4). Under this
exemption, the employees
of church agencies-including social welfare organizations,
adoption agencies,
hospitals, universities, and nursing homes, to name but a
few-are covered under
church health plans that are exempt from ERISA. Congress enacted
the church
plan exemption precisely to avoid the church-state entanglement
that would likely
result from a narrower or more grudging exemption. Cf.
Univ. of
Great Falls, 278F.3d at 1343 (defining "religious" organization expansively).
One of the many
benefits of a broad exemption is that it avoids government
entanglement in
religious governance. HHS's chosen exemption does precisely the
opposite.39
In short, the fourth prong of the exemption is lifted from an
entirely different
statutory context, one having no bearing whatsoever on health
plans. Congress's
concern in enacting the Form 990 filing exemptions was financial
accountability
and tax administration-not health insurance. As the fourth prong
of the
exemption bears no rational relationship to any legitimate
governmental interest
that the mandate or the exemption purports to advance, it does
not withstand
constitutional scrutiny any more than the rest of the exemption
does.
Because the exemption violates the U.S. Constitution, it is
plainly not "in
accordance with law," and therefore violates the APA. 5 U.S.C. §
706.40
The HHS mandate should be rescinded in its entirety. If HHS
refuses to d othat, then it must address the most grievous and intolerable
aspects of this
misguided mandate by
(a) excluding from the mandate those drugs
that can cause
an abortion, and
(b) exempting all stakeholders with a religious
or moral objection
to contraceptives, sterilization, and related education and
counseling.
Addendum A:
Addendum B: