Photo courtesy of Baptist Press.

HHS Mandate Q&A

WASHINGTON (BP) – The Supreme Court has agreed to hear a pair of cases that challenge the Health and Human Services (HHS) mandate requiring most private companies’ insurance to provide coverage for contraceptives and abortifacients. The Obama administration asked the high court to review the issue after a federal appeals court in Colorado found in favor of Hobby Lobby, an Oklahoma-based crafts franchise. The court will combine the Hobby Lobby case with lesser-known case involving Conestoga, a Pennsylvania company that lost earlier bids for relief from the mandate.

These are among the questions people are asking about the issue:

Q: What is this contraception mandate?

A: As part of the Affordable Care Act, the universal health insurance reform passed in 2010 (often referred to as “Obamacare”), all group health plans must now provide – at no cost to the recipient – certain “preventive services.” The list of services mandated by the Department of Health and Human Services includes sterilization, contraceptives and abortifacient drugs.

Q: If this mandate is from 2010, why are we talking about it in 2013?

A: On Jan. 20, 2012, the Obama administration announced that it would not expand the exemption for this mandate to include religious schools, colleges, hospitals and charitable service organizations. Instead, the administration merely extended the deadline for religious groups who do not already fall within the existing narrow exemption so that they will have one more year to comply or drop health care insurance coverage for their employees altogether and incur a hefty fine.

Q: Is there a religious exemption from the mandate? If so, who qualifies for the exemption?

A: According to the Becket Fund for Religious Liberty, which is representing the Southern Baptist Convention’s GuideStone Financial Resources in one of the suits, there is a “religious employer” exemption from the mandate but it is extremely narrow and will, in practice, cover very few religious employers. The exemption may cover certain churches and religious orders that inculcate religious values “as [their] purpose” and which primarily employ and serve those who share their faith.

Many religious organizations –including hospitals, charitable service organizations and schools – cannot meet this definition. They will be forced to choose between covering drugs and services contrary to their religious beliefs or cease to offer health plans to their employees and incur substantial fines. “Not even Jesus’ ministry would qualify for this exemption,” they note, “because He fed, healed, served and taught non-Christians.”

Q: Doesn’t the mandate only apply to religious organizations that receive federal funding?

A: No. The mandate applies to religious employers even if they receive no federal funding.

Q: When did the government begin requiring employer insurance programs to pay for contraceptives?

A: According to the Becket Fund, the trend toward state-mandated contraceptive coverage in employee health insurance plans began in the mid-1990s and was accelerated by the decision of Congress in 1998 to guarantee contraceptive coverage to employees of the federal government through the Federal Employees Health Benefits Program (FEHBP). After FEHBP – the largest employer-insurance benefits program in the country – set this precedent, the private sector followed suit, and state legislatures began to make such coverage mandatory.

Q: Why is the federal government dictating that contraceptives should be covered by insurance?

A: In 2000, the Equal Employment Opportunity Commission issued an opinion stating that the refusal to cover contraceptives in an employee prescription health plan constituted gender discrimination in violation of the Pregnancy Discrimination Act (PDA). That law was adopted by Congress in 1978 in response to a Supreme Court decision holding that an employer’s selective refusal to cover pregnancy-related disability was not sex discrimination within the meaning of Title VII, the primary federal law addressing employment discrimination.

Q: While it may be a pro-life concern, why is it a religious liberty issue for me since I support the use of contraception?

A: If the mandate is allowed to stand, it will set a precedent that the government can not only force citizens to violate their most deeply held beliefs but that we can be sanctioned for refusing to do so. As John Leo has noted, today it is contraceptives and abortifacients, but “down the road it will be about suicide pills, genetic engineering, abortion and mandatory abortion training, transgender operations, and a whole new series of morally problematic procedures about to come over the horizon.”

As Leo has recounted, a Catholic-run California hospital was sued because it refused to perform breast-enlargement surgery on a transgendered patient. The state court ruled the hospital had violated the state’s anti-discrimination laws. (Caving under litigation, the hospital paid $200,000 to the transgendered man.)