Freedom of Conscience in Health Care

Decoding the Contraception Controversy

The federal health reform legislation passed in 2010 mandates that all health insurance plans offer preventive care services. The Institute of Medicine (IOM) developed a list of preventive care services, which included contraception and sterilization. The Department of Health and Human Services embraced the IOM recommendations and issued an interim final regulation in August 2011. That rule, which was finalized without change on Feb. 10, 2012, requires all new health insurance plans formed or revised after August 1, 2012 to offer free sterilization, and free contraceptive care, including drugs such as Plan B and Ella that many believe lead to abortions. There is a narrow exemption for churches and seminaries. All other religious organizations, such as charities, hospitals, drug rehabilitation programs, prison ministries and foster placement and adoption programs, are not exempt.

The President's proposal, also made on Feb. 10, 2012, did not alter the definition of religious employer; rather it added another category for non-exempt religious groups to opt out of offering plans for those services, while requiring the groups' insurance carriers to offer the services to plan participants without charge. 

Under the rule, a "religious employer" is defined as an entity that is registered as a church or association of churches, hires mainly its own people, serves mainly its own people, and exists mainly to inculcate religious values. No other federal law or regulation leaves such a broad range of religious organizations unprotected. This definition sets a precedent for future government regulation of religion groups. The NAE joined with other institutions in filing an amici curiae brief in Wheaton College and Belmont Abbey College v. Kathleen Sebelius. The brief argues that by defining a religious employer as one that primarily serves members of its own faith, it excludes numerous religious charities and colleges whose faith motivates them to serve people outside their faith community. The NAE also filed briefs in related cases, including Stormans v. Selecky, O'brien v. U.S. Department of Health and Human ServicesGilardi v. U.S. Department of Health and Human ServicesDomino's Farms v. Sebelius, Little Sisters of the Poor v. SebeliusPriests for Life v. HHS and Roman Catholic Archbishop v. Sebelius, Southern Nazarene et al. v. Sebelius, Geneva College v. Burwell, and EWTN v. Burwell.

Update 02/06/13: The Department of Health and Human Services published in the Federal Register today a proposed rule clarifying the definition of "religious employer" and proposing some additional ideas on potential accommodations for other religious non-profits that object to the contraception mandate. The proposed rule offers no relief to for-profit religious groups. The NAE made an initial statement and plans to file formal comments. The public comment period closes on April 8, 2013.

Update 07/08/13: The Department of Health and Human Services published its final rule at the end of June 2013. The final rule still leaves many religious employers unprotected, and the battle continues in the courts. The NAE issued a press release regarding the final rule.

Update 11/26/13: At the end of October, the NAE joined with other organizations in asking the U.S. Supreme Court to hear the Hobby Lobby and Conestoga cases involving the HHS mandate. Today the High Court announced that it would hear the cases.

Update 01/28/14: The NAE wrote and filed an amicus brief with the U.S. Supreme Court today on behalf of Hobby Lobby and Conestoga Wood in their case against the administration's mandate to cover contraception in company-offered health insurance plans even when doing so violates the religious beliefs of the owners. The NAE issued a press release about its brief.

Update 06/30/14: In the Burwell v. Hobby Lobby (formerly Sebelius v. Hobby Lobby) case, the Supreme Court affirmed that the Religious Freedom Restoration Act (RFRA) protects Americans of all faiths from government mandates that violate their conscience and religious beliefs. The NAE welcomed the ruling in a press release.  

For further study:

» Press Release: Evangelicals Disappointed with White House Decision on Conscience Protections (01-20-12)
» Press Release: Religious Employers Remain Unprotected in Contraception Rule (02-16-12)
» Press Release: HHS Proposed Rule Jeopardizes Religious Freedom (02-01-13)
» Press Release: Contraception Rule Misses Mark (07-08-13)
» Press Release: NAE Files Supreme Court Brief for Hobby Lobby, Conestoga (01-28-14)
» Press Release: Supreme Court Upholds Religious Freedom (06-30-14)

» FAQs on the Contraception Controversy
» NAE Statement on Respect for Rights of Conscience Act (02-29-12)
» Standing Together for Religious Freedom: An Open Letter to All Americans (06-02-13)
 Read a letter sent to HHS Secretary Sebelius from several organizations concerned about the "two class concept of religious organizations" resulting from the administration's efforts to accomodate religious concerns.
» Op-ed by Michael Gerson — Clarifying the Basics of Religious Freedom
» Capitol Commentary by Stanley Carlson-Theis — The Birth Control Mandate and Second-Class Religious Institutions
» eNews for Faith-based Organizations — New Contraceptives Mandate Announcement: Imperfect Proposals (02-05-13)