Tweaking the HHS Mandate Will Not Do

By Karen Gushta, Op-Ed Contributor Monday, February 18, 2013

The story lasted a day or so in the national news cycle. Then capitol hill news reporters moved on to cover the confirmation hearings in the Senate, the house's actions on the budget, and Sen. Menendez' alleged indiscretions.

But, the announcement by the Obama administration that it was making changes to what is now referred to as the "contraception mandate," should not be allowed to pass without comment. Especially since some have now said, "This will do."

The lay-Catholic journal Commonweal published an editorial by that title several days after the changes were announced stating,

On February 1, the Department of Health and Human Services released a 'Notice of Proposed Rulemaking' that included two important changes to its controversial requirement that most health-insurance plans cover contraceptives at no cost to women. Together, these two changes should put to rest the claim that the HHS mandate wantonly violates religious liberty.

In reporting on the government's actions, however, TheHill.com (2/1/2013) stated that the Obama administration has once again "rejected calls to let any employer opt out of the mandate based on religious objections to contraception." And regardless of whether the editors of Commonweal are willing to accept the changes, a number Catholic business owners are not. They are among those who are suing the federal government over what they see as a violation of their religious freedom and right of conscience.

In January (1/14/2013),Alliance Defending Freedom (ADF) Senior Counsel Gregory S. Baylor reported more than 40 cases against the contraception/abortifacient mandate are being pursued in the courts by religious organizations, for-profit businesses, and individuals. Fifteen of these lawsuits have been filed by for-profit businesses or their owners. They all claim writes Baylor,"Their religious consciences preclude them from subsidizing the use of contraceptives and/or abortifacients by participants in their health insurance plans."

Those who now identify the HHS mandate simply as the "contraception mandate" ignore the fact that the majority of these suits are based on the religious belief that human life is sacred. Therefore, providing so-called emergency contraception-abortifacient drugs that end the life in the womb-is a direct contradiction of that belief.

Pro-abortion activists have consistently tried to soften the language that is used in referring to abortionto mask its harsh reality: when a pregnancy is "aborted," a baby is killed. The fact that the baby was inside the womb at the time does not diminish the nature of the crime.

Referring to the HHS mandate as the "contraception mandate" may make it palatable to the uninformed public. But as World(2/9/2013) pointed out, drugs such as Plan B and Ella, as well as intrauterine devices (IUD) are all designed to inhibit or block implantation of fertilized eggs, which in effect aborts the newly conceived life.

This fact makes the government's contention that the "emergency contraception" drugs covered by the mandate aren't abortifacients clearly false.

Furthermore, as the article in World also noted, these forms of "emergency contraception" are already available through many county health clinics and Planned Parenthood offices at "no cost, low cost, or on a sliding scale depending on income." This should raise the question of why the Obama administration is refusing to grant this right of conscience to all those who are opposed to paying for abortifacients.

The HHS "modification"-80 pages worth-came a year after HHS Secretary Kathleen Sebelius pledged to address complaints against the mandate. A number of lawsuits by non-profits were put on hold awaiting this revision, and now, presumably, the courts can reconsider those in light of this new ruling.

This does not change anything, however, for those for-profit companies that have challengedthe mandate. As ADF's Gregory Baylor states, "The government has argued that for-profit business simply cannot exercise religion at all, thus that they have no religious exercise rights that might be violated."

This indeed is the crux of the matter-and the reason why the recent minor revision of the mandate will not do.

Cal Thomas stated it succinctly in his article, "Government Shouldn't Define Church," (Townhall.com 2/5/2013),

The core issue as I see it-and there are others-is whether the government has the right to define a church as a building in which people congregate on Sundays and whether a private company headed by a religious person qualifies for conscience exemptions. For government to decide such things violates the establishment and free exercise clauses of the First Amendment, which state "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." and appears to put the state in the position of supreme authority and arbiter of what constitutes "legitimate" religious faith and practice. The Supreme Court will likely have to resolve its constitutionality.

I hope and pray that when that day comes, the high Court will defend the first amendment rights of all individuals, and that it will resist the temptation to narrow those freedoms by creating some kind of specious "religious test."

If it were to do so, it would turn all our other constitutional freedoms into hollow words. For, as America's founders well understood, freedom of religion is the necessary foundation for all others.