Public Comments on the Obama Administration’s “Accommodation”: Rescind the Mandate

“Rescind the mandate.” That is the demand of many public comments submitted by individuals and groups on the Obama Administration’s proposed “accommodation” to the Obamacare anti-conscience mandate.

In the midst of widespread outcry over the Administration’s mandate that nearly all insurance providers must cover abortion drugs and contraception, the Department of Health and Human Services (HHS) tried to quell opposition by releasing an “advanced notice of proposed rulemaking” (ANPRM) on March 21. That document neither changes the coercive mandate finalized in law nor provides any workable or adequate solutions to the mandate’s trampling on religious liberty.

HHS requested public comment on the ANPRM by last Tuesday, June 19. The Heritage Foundation joined many others in commenting on the notice. As Heritage visiting fellow Thomas Messner and senior research fellow Ed Haislmaier write:

With the ANPRM, the government continues to unjustifiably burden the freedom of individuals and institutions.… The government should not promulgate regulations that trample religious or moral objection to paying for, providing, facilitating, or participating in health insurance plans that include or facilitate access to abortion-inducing drugs, sterilization services, contraceptives, and related education and counseling.

The ANPRM neither replaces nor expands the narrow religious exemption in the final rule that effectively only applies to formal houses of worship. Many religious employers—such as Catholic hospitals, Baptist soup kitchens, and non-denominational schools—are left unprotected by the exemption simply because the step outside the four walls of a church to serve others.

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The Alliance Defense Fund, commenting on behalf of more than a dozen colleges and universities, noted that the accommodation “creates a federally-imposed religious caste system.” “The most privileged members of this federally dictated system are churches that are insularly focused by only serving and inculcating beliefs within their own faith,” writes ADF. “These few, because their attitude towards religion is deemed ideal by the federal bureaucracy, receive the largesse of a complete exemption from the Mandate by means of its ‘religious employer’ definition.”

The U.S. Conference of Catholic Bishops calls this narrow view of religion “patently wrong” while reiterating that “even Jesus would be deemed insufficiently ‘religious’ to qualify for the exemption because he fed and healed people of many different faiths.”

Moreover, as Messner and Haislmaier point out, the notice doesn’t even consider protections for the conscience rights of other stakeholders, such as non-religious business and individuals.

Even for the organizations that would qualify, the Administration’s potential proposed “accommodation” is actually nothing more than an “accounting gimmick.” As the Becket Fund for Religious Liberty explains, it would continue “a substantial burden on many organizations’ religious exercise.” The ANPRM suggests that insurance companies offer coverage of abortion-inducing drugs and contraception—without charge—directly to employees of organizations with moral or religious objections to the mandated services. Yet those services come at a price, and there is no guarantee that funds from a religious employer’s premiums won’t be used to cover objectionable services.

The Obama Administration’s trampling on religious liberty threatens the work of many Good Samaritan groups who are left to choose between violating their beliefs or dropping insurance coverage and paying hefty fines. As Messner and Haislmaier explain:

The government’s misguided policies will have unfortunate consequences even apart from harms inflicted on religious and moral conscience.… Even if those individuals who lose health insurance find coverage elsewhere, and even if those institutions that drop insurance plans find the funds to pay their fines and keep their doors open, the mandate still creates a set of irrational and socially counterproductive costs. Money that will be spent on federal fines could be spent on educating students and serving the poor.

As Heritage comments conclude, the only acceptable action for the Obama Administration is clear: rescind the mandate.

The government should change course now by withdrawing the ANPRM and replacing it with a rule that would suspend the mandate as to these services until the government finds a way to fully protect the religious and moral conscience of all Americans.

Whether in public comment on rulemakings, observance of the Fortnight for Freedom, nationwide rallies, or legal action over the anti-conscience mandate, Americans are loudly and clearly demanding greater protection of our “first freedom.”

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