ACLJ Opposes New HHS Mandate Regulations

Today, the American Center for Law & Justice filed formal comments in objection to the Administration’s latest efforts to see to it that both nonprofit and for-profit groups continue to kowtow to the HHS Mandate.  (The HHS Mandate, adopted pursuant to Obamacare, is that collection of rules and regulations that require non-exempt health plans -- under pain of ruinous financial penalties -- to provide abortion-inducing drugs, contraception, and sterilization.)

On August 27, 2014, the Administration did two things in light of the Supreme Court’s Hobby Lobby decision and the Court’s July order in the Wheaton College case: (1) it issued “interim final rules” giving nonprofits an alternative so-called “accommodation” for complying with the Mandate, and (2) it issued “proposed rules” wherein closely held for-profit businesses, like our own clients challenging the Mandate, would be given the same so-called “accommodation” that nonprofit groups have.

As explained in the comments filed today, and as further explained by Matthew Clark here, we believe neither of these actions are sufficient to protect the rights of religious conscience.  With respect to the alternative “accommodation” for nonprofits -- where the health plan issuer or administrator pays for the objectionable drugs and services, once the government is told of the religious objection -- objectors must still submit a document that they believe facilitates the delivery of drugs and services in violation of their religious beliefs.  Moreover, objectors must maintain a contractual relationship with third parties to deliver those drugs and services to which the objector is morally and religiously opposed.  For many organizations, including those nonprofit groups which are currently challenging the HHS Mandate, this “accommodation” continues to implicate them in material wrongdoing against their conscience.

With respect to the proposed rules for for-profit employers, these rules will only throw them into the same false “accommodation” scheme that nonprofit employers are stuck with.  Even worse, the Administration is trying to take away from them what the Supreme Court gave them in the Hobby Lobby decision: a complete and total exemption from having to comply with the Mandate. That cannot be allowed to stand.

As we argue in the comments, there is only one resolution to this matter that comports with the demands of the First Amendment, the Religious Freedom Restoration Act, and our country’s longstanding respect for the rights of conscience: give both nonprofit and for-profit employers the right to a complete exemption from having to comply with the Mandate.