A Mandate Update

On February 1, the Obama Administration issued a proposed final rule concerning the “accommodation” to be given to those who have religious objections to the HHS mandate, which requires that providers of insurance cover certain objectionable “services.” 

I know.  To a few readers who follow this issue carefully, the previous sentence may be entirely clear. To most others, it is probably as impenetrable as hieroglyphics or Sanskrit.  Just last week, Archbishop William L. Lori, Chairman of the U.S. Conference of Catholic Bishops’ ad hoc Committee on Religious Liberty asked Congress to cut through the complexities and defend our freedom.  So let me unpack the “accommodation” a bit.

Back in August 2011, the Department of Health & Human Services (HHS) adopted an “interim” regulation requiring that all insurance plans provide certain “preventive services” for women.  Those services included contraception, sterilization, and some life-ending drugs and devices. 

Many Americans protested against this, asserting that it violated their religious freedom and conscience rights.  The administration responded in January of 2012 that religious organizations would have a “safe harbor” of one year before they would have to comply.  (Because the regulations applied to insurance plans whose “year” begins after August 1, 2011, the safe harbor lasted until August 1, 2012.)   Obama’s solution satisfied no one – in the words of Cardinal Timothy Dolan, “In effect, the President is saying we have a year to figure out how to violate our consciences.”

Protests intensified.  Last year, the president and HHS Secretary Kathleen Sebelius announced that “religious organizations and institutions” would not have to provide insurance for the objectionable services; rather the insurance company would be required to provide it, for free. 

This obvious flummery also failed to satisfy the critics, who denounced it in a widely signed statement, “Unacceptable,” and went to court to stop it. 

To date more than forty lawsuits have been filed.  Some have been dismissed, and some haven’t. The latter concern “for profit” plaintiffs, i.e., the ordinary Americans who run businesses for a profit but seek to do so in conformity with their faith.  In other words, these are the people in the pews.  The Obama Administration has never proposed to protect them.

Many cases by religious organizations (such as colleges and universities and dioceses) have been dismissed because courts have concluded they have not sustained an injury. Even where injury has already occurred, it is not “ripe” for judicial decision because the Obama administration has given a “safe harbor” to the religious non-profits and has promised never to enforce the regulation against them. In fact, the federal government made the promise “never to enforce” in a hearing before the Court of Appeals of the District of Columbia.

That is where matters stood on January 31. On February 1, 2013, Obama fulfilled his promise – sort of. These are now “proposed” regulations, necessitating a sixty-day comment period.

What did the regulations say and what will their effect be on the lawsuits? The effect will be up to the courts. Will they permit the non-profit cases to go forward, or will they still say they are “not ripe” (and dismiss them) until the regulations become final (anytime before August 1)?  No one knows.  Plaintiffs who are unsatisfied by the proposed accommodation will seek to continue their suits, but courts will decide if they can do so.     

One thing is for certain – the regulations will have no effect on the suits by for-profit plaintiffs (the people in the pews).  No new accommodation is offered to them.  So their lawsuits will continue.  Will they win? 

Well, here there is good news, even if preliminary.  In most cases, the for-profit plaintiffs have won, that is, they have been granted an injunction against the enforcement of the mandate against them.  But such plaintiffs have lost a few cases as well. 

The standard under which all these cases are judged is the Religious Freedom Restoration Act.  Essentially it says that if you sustain a substantial injury to your religious freedom from federal action, the government has the burden of showing it had “a compelling reason” to do what it did. It must also demonstrate that the way it acted was the  “least restrictive” of your rights.  This is “strict scrutiny,” and is the toughest legal standard for the government to satisfy.  Thus, no surprise that most for-profit plaintiffs are winning.

But why are some losing?  The reason is that a few courts have, in essence, found no burden.  These courts argue that the plaintiffs are complaining about future acts by other people (i.e., their employees using contraceptives, abortifacients, or sterilizations). Therefore, because those things may never happen, there is no burden. 

This seems clearly wrong. After all, the concern is that an employer is being forced to provide objectionable services, not that someone else will decide to use them.  Still, it will ultimately take, I believe, the Supreme Court to resolve the matter. 

And on this point, the losses paradoxically offer a silver lining – they create a “split” among different federal courts, which increases the likelihood the Supreme Court will review the cases and decide the issue.

In the meantime, lawyers for various parties puzzle over the proposed regulations.  Despite being in process for a year (since Obama’s promise in February 2011), they still are unclear on many points.  But they are unyielding on one point – only churches and religious orders are “exempted.” Some nonprofits may be “accommodated.” 

Deciding who is exempt because of their religious beliefs, who is to be “accommodated,” and who receives no protection whatever (the people in the pews), sounds much like the position Obama took in a recent Supreme Court case: it is up to his administration to strike the balance on religious freedom.  As the Court reminded him there, however, and as it will ultimately do here, that balance has already been struck – by the First Amendment! 

Religious freedom is the right of every American.  The mandate has to go.

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.