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, 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. The NAE is still studying the President's proposal, as details of the arrangements have not yet been released.
Regardless, 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 brief in related cases, including Stormans v. Selecky and O'brien v. U.S. Department of Health and Human Services.
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.
For further study:
» FAQs on the Contraception Controversy
» Ask Your Legislators to Protect Conscience Rights
» 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)
» NAE Statement on Respect for Rights of Conscience Act (02-29-12)
» 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)