The USCCB this week submitted the official response to the Obama administration’s supposed “accommodation” for religious employers. The Administration officially proposed this as the “Advance Notice of Proposed Rulemaking (“ANPRM”) on preventive services;” the public is allowed to comment. You, also, may submit comments until June 19th at midnight.
The USCCB response is lengthy and detailed. I’ll include some highlights here.
1. The Mandate Is Finalized and Remains Unchanged.
The ANPRM makes no change in the underlying contraceptive mandate…
First, contraceptives and sterilization procedures are not “health” services, and they do not “prevent” disease…
Second, the mandate represents an unprecedented violation of religious liberty by the federal government…
2. The Four-Part Exemption Is Finalized and Remains Unchanged.
The ANPRM does not change the Administration’s extremely narrow four- part test for deciding which organizations are “religious enough” to warrant an exemption from the mandate.
…the exemption provides no protection for any individual, insurer, or secular organization with a moral or religious objection to contraceptive coverage, and it protects only some religious organizations while leaving a large number of conscientiously opposed religious organizations subject to the mandate.
…Indeed, for individuals with a conscientious objection to contraceptive coverage, the ANPRM actually exacerbates the problem.
3. The Safe Harbor Remains Unchanged and Provides No Relief to Several Categories of Objecting Stakeholders.
The Administration is offering what it characterizes as a “temporary enforcement safe harbor” to delay enforcement of the contraceptive mandate—but only temporarily, and only for non-exempt nonprofit organizations that meet specified criteria.
4. The “Accommodation” Described in the ANPRM Provides No Relief to Stakeholders That Fail to Qualify as “Religious Organizations.”
The ANPRM states the Administration intends, at some point in the future, to propose and finalize an additional “accommodation” for non-exempt “religious organizations.” It is evident that whatever this further “accommodation” will or will not accomplish, and however the term “religious organizations” is defined for this purpose, the Administration’s stated intent is to exclude secular stakeholders with a religious or moral objection to contraceptive coverage.
5. The “Accommodation” Described in the ANPRM Does Not Meaningfully Accommodate Even Those Stakeholders That Qualify for It.
However the term “religious organization” is ultimately defined, the Administration’s proposed “accommodation” as defined in the ANPRM will not actually relieve those “religious organizations” of the burden on religious liberty that the mandate creates.
6. The ANPRM Raises Various Questions That Should Be Resolved in Favor of More Religious Freedom, Not Less.
The conclusion of the USCCB:
The final rule continues to keep in place a regulation that defines as “preventive health care” drugs, devices, and procedures that render a woman temporarily or permanently infertile, and that may be associated with serious adverse health outcomes. We believe that this mandate is unjust and unlawful—it is bad health policy, and because it entails an element of government coercion against conscience, it creates a religious freedom problem. These moral and legal problems are compounded by an extremely narrow exemption that intrusively and unlawfully carves up the religious community into those that are deemed “religious enough” for an exemption, and those that are not. Now, the ANPRM has invited comment on a promised future “accommodation” for some (but not all) non- exempt religious organizations—an “accommodation” that would still leave their plan premiums or plans (or both) as the source or conduit for the objectionable “services.” But the use of premiums and plans for that purpose is precisely what is morally objectionable, and having an insurer or third party administer the payments does not overcome the moral objection.
In short, the mandate itself is unjust and unlawful, and it is subject to an unjustly narrow and unlawfully intrusive exemption. These aspects are unchanged from August 2011 and, under the terms of the ANPRM, will remain unchanged: They are enshrined in a final rule and unaffected by the present ANPRM, which instead promises only a future “accommodation” within the constraints of that final rule. Because of those constraints, and under the terms set out in the ANPRM, the “accommodation” cannot provide effective relief even for those few stakeholders that qualify for it.
We again urge the Administration to reconsider and to reverse course.