FAQs: Becket Fund’s Lawsuits Against HHS
- Has the government issued the “final” form of the HHS mandate, including any exemptions or accommodations?
- How does the delay of the employer mandate affect the HHS mandate?
- How did the HHS mandate arise?
- What does the HHS mandate require?
- Why are some organizations opposed to covering some or all FDA-approved contraceptives?
- How is the Becket Fund fighting this mandate?
- What is the right of conscience?
- Isn’t this just a Catholic issue?
- Doesn’t the Equal Employment Opportunity Commission’s opinion in 2000—stating that denying women contraception is illegal—govern this issue?
- What is the relationship between these lawsuits challenging the HHS mandate and the Supreme Court ruling on the individual healthcare mandate?
- Is there precedent for the government requiring a broad mandate for contraception and sterilization?
- Why won’t any exemption from the mandate harm women and women’s health?
FAQ For Religious Organizations
- Aren’t religious organizations exempt from the mandate?
- What is the “accommodation” that some religious organizations receive under the final rule?
- What is the “safe harbor” and how does it affect the lawsuits?
- Is there precedent for such a narrow exemption?
- If the exemption covers only religious employers, then are religious colleges and universities required to provide free contraception to their students?
- Are the legal claims different between all the religious institution lawsuits?
- Don’t religious employers have to comply with this mandate if they receive federal funds?
FAQ For For-Profit Businesses
- Does the final rule offer any relief for religious business owners?
- What is the current status of the Hobby Lobby lawsuit?
- Can a corporation have religious rights?
- Will the Supreme Court hear this case?
- How many for-profit companies have filed lawsuits against the HHS mandate?
- Do all the for-profit businesses have the same legal claims?
- Do businesses have religious rights?
- What are the policy implications of denying religious freedom to business owners?
(1) Has the government issued the “final” form of the HHS mandate, including any exemptions or accommodations?
Yes. On June 28, 2013, HHS released a rule putting in final form the “exemption” offered to certain religious employers and the “accommodation” offered to certain non-exempt religious non-profit organizations. Commentary accompanying this final rule purports to respond to more than 400,000 comments HHS received following its release of a proposed accommodation the previous February. Many of the lawsuits pending against the HHS mandate had been put on hold while courts waited for HHS to issue this final rule. It is now expected that many, perhaps all, will resume.
(2) How does the delay of the employer mandate affect the HHS mandate?
It doesn’t. According to the Treasury statement, employers will now have until 2015 to comply with two of the ACA’s technical reporting requirements, and will also have an additional year before they must pay the $2000-3,000 per year “employer shared responsibility payments” imposed on large employers who fail to offer any health insurance at all.
The Treasury, however, has not announced any plans to suspend or delay the requirement that all large group employer health plans comply with the HHS abortion-drug mandate. The HHS mandate therefore remains fully in force.
(3) How did the HHS mandate arise?
As part of the Affordable Care Act passed in 2010, all group health plans must now provide—at no cost to the recipient—certain “preventive services.” In September 2010, the government announced a general list of “preventive services,” but asked the Institute of Medicine (IOM) to recommend a list of “preventive services for women.” Religious groups urged the IOM not to include sterilization and contraceptive services in the mandate. Undeterred, the IOM made recommendations that included all FDA-approved contraceptive drugs and devices as well as sterilization methods, and the government adopted those recommendations in the summer of 2011.
(4) What does the HHS mandate require?
The HHS mandate requires all group health plans and health insurance issuers to provide coverage for several preventive services for women: annual well-woman visits; screening for gestational diabetes, HPV, HIV, and domestic violence; and counseling for sexually transmitted infections, HIV and domestic violence, as well as breastfeeding support and supplies. None of these nine services are morally troublesome for our clients.
It is the tenth government-mandated service that puts them in a moral bind. It requires coverage of “[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
(5) Why are some organizations opposed to covering some or all FDA-approved contraceptives?
Most serious is the fact that certain of the mandated drugs and devices can cause early abortions by preventing implantation of a fertilized egg in the womb. The FDA’s own birth control guide confirms that this is way certain emergency contraceptives work. For instance, one of the mandated drugs is “ella” (ulipristal)—which is a close analogue to the abortion drug RU-486 (mifepristone). So, while the government has publicly stated that the mandate does “not include abortifacient drugs,” the actual content of the mandate fails to live up to that guarantee.For our clients, providing insurance coverage for drugs like these amounts to facilitating abortion, which violates their core religious beliefs.
(6) How is the Becket Fund fighting this mandate?
The Becket Fund for Religious Liberty has brought multiple legal challenges to this mandate, on behalf of non-profit and for-profit organizations who object to the mandate from a variety of religious viewpoints. While the fight over the mandate is far from over, the Becket Fund has already won path-marking victories in the federal appellate courts. (See a full list of all the cases challenging the mandate at Becket Fund’s HHS Information Central, complete with interactive map, timeline, case information, and additional resources.)
(7) What is the right of conscience?
James Madison famously said that conscience is “the most sacred of all property.” Conscience—particularly in the religious sense—is the right all of us have not to be forced by the government to violate our religion. It is a right that we have always recognized in this country—from religious exemptions for Quakers who could not fight in the military, to religious exemptions for those who could not work on certain days of the week, to religious exemptions for those who could not pledge allegiance to the flag, to religious exemptions for corrections workers who could not be involved in capital punishment, to religious exemptions for health-care personnel who could not be involved in abortions. It is a bedrock principle of our Constitution, our history, and our basic liberty.
(8) Isn’t this just a Catholic issue?
No. In fact, more Protestant institutions have challenged the mandate in court than have Catholic institutions. Additionally, many non-Catholic businesses owners are challenging the mandate, such as Becket Fund’s client Hobby Lobby Stores. Although many of these institutions do not have objections to traditional contraception, all are opposed to abortion-inducing drugs, such as the “morning after pill” and “week after pill.” Like Catholics, they believe human life begins at the moment of conception, and believe these drugs can end life after that moment, a violation of their deeply held religious beliefs.
Additionally, a broad coalition of people across the political spectrum and religious lines have come together in opposition to this mandate. Here are a few examples:
- Unacceptable – Over 500 leading academic, religious leaders, and health care professionals, across the ideological spectrum, call the mandate UNACCEPTABLE
- Rabbinical Council of America Objects to mandate (May 2012)
- Women Speak for Themselves – Women’s group demands: ‘Don’t claim to speak for all women’
- Institutional Religious Freedom Alliance Letter to WH and Sec. Sebelius - 150 faith-based organizations (Protestant and Catholic) object to the two-class system the mandate creates (June 11, 2012)
- WSJ: An Evangelical-Catholic Stand on Religious Liberty, by Philip Ryken (Wheaton College) and John Garvey (Catholic University)
(9) Doesn’t the Equal Employment Opportunity Commission’s opinion in 2000—stating that denying women contraception is illegal—govern this issue?
No. The only federal court of appeals to rule on the issue has held that the 2000 EEOC opinion was unpersuasive and lacked the force of law. The U.S. Court of Appeals for the Eighth Circuit held that Title VII, as amended by the Pregnancy Discrimination Act (PDA), did not require employers to provide contraception to female employees. It rejected the reasoning of the 2000 EEOC opinion that interpreted the PDA as requiring employers to cover prescription contraception for women if they cover other prescription drugs and devices.
Indeed, if the federal government thought that the EEOC opinion already required employers to provide contraception, why would it have pushed the mandate through as part of the universal health reform law?
(10) What is the relationship between these lawsuits challenging the HHS mandate and the Supreme Court ruling on the individual healthcare mandate?
Challenges to the HHS mandate were not affected by the Supreme Court’s June 28, 2012 ruling on the constitutionality of the “individual mandate.”
The Supreme Court decided that the individual mandate—a separate provision of the Patient Protection and Affordable Care Act that requires individuals to obtain a federally-approved level of health insurance by 2014—was constitutional under Congress’ taxing power. The Becket Fund lawsuits involve a different mandate under the Affordable Care Act that requires all group health plans to provide contraception, sterilization and abortion-inducing drugs. This is the so-called “HHS mandate,” because it was promulgated by the federal Department of Health and Human Services.
(11) Is there precedent for the government requiring a broad mandate for contraception and sterilization?
No. The government mandate is unprecedented in federal law, and broader than any state contraception mandate to date. Never has federal law required private health plans to cover sterilization or contraception. And as compared to state mandates, the federal mandate is the most expansive ever enacted. At least 22 states have no contraception mandate at all. Of the 28 states that have some mandate, none require contraception coverage in self-insured and ERISA plans, only two include contraception in plans that have no prescription drug coverage, and only one state specifies sterilization.
(12) Why won’t any exemption from the mandate harm women and women’s health?
Including a robust exemption protecting deeply held religious beliefs would not harm women or women’s health. The evidence is clear. Nine out of ten employer-based insurance plans in the United States already cover contraception. The government admits these services are widely available in “community health centers, public clinics, and hospitals with income-based support.” In fact, the federal government already spends hundreds of millions of dollars a year funding free or nearly free family planning services under its Title X program.
Therefore, the issue is not really about access to contraception but rather about who must provide it. The government’s answer is to force religious organizations to provide services against their deeply held religious beliefs. Of course, if the government really believed free provision of these drugs and services were crucially important for women’s health, there are many other alternatives it could pursue to accomplish that goal. Instead, it is trying to force a small group of religious objectors into submission with huge fines and penalties to make them provide these drugs and services.
Types of Cases:
Religious non-profit institutions and For-profit Companies
FAQ For Religious Organizations
(13) Aren’t religious organizations exempt from the mandate?
Very few religious organizations are truly “exempt” from the mandate. The final rule exempts only non-profit organizations deemed by the Tax Code to be “churches, their integrated auxiliaries, and conventions or associations of churches.” Also exempted are “the exclusively religious activities of any religious order.” No other religious organization is exempt. The final rule’s narrow exemption excludes the vast majority of religious schools, hospitals, and charities.
(14) What is the “accommodation” that some religious organizations receive under the final rule?
Instead of truly exempting non-profit religious organizations, the final rule merely offers them an “accommodation.” Under this, an objecting organization will notify its insurer or plan administrator, which will make payments to employees for the mandated contraceptive services. The rule insists these payments are not “benefits” and are separate from the organization’s health plan. Nonetheless, the accommodation means that employees are guaranteed payments for objectionable services, specifically because they are covered under the organization’s plan. Furthermore, the accommodation requires a self-insured organization to “designate” its plan administrator as an agent who will make or arrange for payments for the mandated services. This “accommodation” fails to solve the moral problem created by the mandate for many religious organizations.
(15) What is the “safe harbor” and how does it affect the lawsuits?
The “safe harbor” is a limited time-period during which the government promises not to enforce the mandate’s severe penalties against certain religious non-profit organizations. The safe harbor was originally scheduled to expire on August 1, 2013, but the final rule has now extended it until January 1, 2014. This means that religious non-profit organizations will have to start complying with the mandate in their first health plan that begins after January 1, 2014.
(16) Is there precedent for such a narrow exemption?
Again, the answer is no. Until now, federal policy has generally protected the conscience rights of religious institutions and individuals in the health care sector. For example, for 25 years, Congress has protected religious institutions from discrimination (based on their adherence to natural family planning) in foreign aid grant applications. For 12 years, Congress has both exempted religious health plans from the contraception mandate in the Federal Employees’ Health Benefit Program and protected individuals covered under other health plans from discrimination based on their refusal to dispense contraception due to religious belief.
Furthermore, the federal mandate is unquestionably broader in scope and narrower in exemption than any comparable state mandate. Almost half the states do not have a contraception mandate at all, so there is no need for an exemption. Of the states that have some sort of mandate (all less sweeping than the federal one here), 19 provide an exemption. Of those 19 states with an exemption, only three (California, New York, and Oregon) define the exemption nearly as narrowly as the federal one, although the federal exemption is still worse because of the regulation’s discretionary language that the government “may” grant an exemption. Moreover, religious organizations in states with a mandate—even those where there is no express exemption—may opt out by simply self-insuring, dropping prescription drug coverage, or offering ERISA plans. The federal mandate permits none of these alternatives, and therefore is less protective of religious liberty than any of the states’ policies.
(17) If the exemption covers only religious employers, then are religious colleges and universities required to provide free contraception to their students?
Yes. With some very narrow exceptions, student health plans provided by religious colleges and universities are treated like any other group health plan under the government mandate. There is no exemption, just the supposed “accommodation”.
There is something quite unsettling about the government mandating that—while a university pastor may preach to his student congregants on Sunday that pre-marital sex, contraception, or abortion are immoral—on Monday, the university must provide access for those students to be educated, counseled, and provided with services in direct violation of those teachings.
(18) Are the legal claims different between all the religious institution lawsuits?
The Becket Fund’s lawsuits challenge the government mandate as a violation of the First Amendment of the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), and the Administrative Procedures Act (APA).
Under the First Amendment, we argue that the mandate (1) is neither neutral nor generally applicable and imposes a substantial burden in violation of the Free Exercise Clause, (2) intentionally discriminates against religious beliefs in violation of the Free Exercise Clause, (3) imposes its requirements on some religions but not on others in violation of the Free Exercise Clause, (4) prefers some denominations over others and places a selective burden on our clients in violation of the Establishment Clause, (5) compels our clients to provide counseling and education on subjects that violate their religious beliefs in violation of the Free Speech Clause, (6) unconstitutionally forces our clients to associate with actions and beliefs that are against their religious convictions, and (7) gives a government agency the “unbridled discretion” to decide which organizations can be exempted from the mandate and thus have their First Amendment rights accommodated.
We also argue that the mandate violates RFRA—a federal civil rights statute sponsored by Ted Kennedy and signed into law by President Clinton—because the mandate places a substantial burden on our clients’ religious exercise without a compelling government interest that is narrowly tailored to meet that interest.
The lawsuits seek declaratory judgments which are statements from the court that the mandate and the enforcement of it against our clients violate the First Amendment, RFRA, or the APA, and an order prohibiting the government from enforcing the mandate against our clients and any other religious group that cannot pay for these drugs and services because of their religious convictions.
(19) Don’t religious employers have to comply with this mandate if they receive federal funds?
When mandate proponents say that religious groups must provide these services because they receive federal funding, they are simply mistaken. The mandate applies with full force to every religious school, hospital, and soup kitchen, even if every single dollar of their funding comes from private donations. It’s a red herring to say that the mandate is somehow tied to receipt of federal funding. It’s not.
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FAQ For For-Profit Businesses
(20) Does the final rule offer any relief for religious business owners?
None whatsoever. The final rule continues the government’s stark refusal to recognize that religious business owners have any right to object to the HHS mandate. Under the government’s view, a person may exercise his or her religion in a church or a charity, but not in a business. This would represent a radical revision of the First Amendment and of federal civil rights laws protecting religious exercise. Fortunately, the first federal appellate court to consider this argument—the en banc Tenth Circuit in Hobby Lobby Stores v. Sebelius—rejected it, recognizing the right of a prominent Christian arts-and-crafts chain to challenge the mandate.
(21) What is the current status of the Hobby Lobby lawsuit?
On June 27, 2013, the Tenth Circuit Court of Appeals issued a landmark opinion in favor of Hobby Lobby Stores, Inc. The Court held by a 5-3 vote that (1) for-profit corporations can exercise religion under the Constitution and federal law; (2) the mandate “substantially burdens” Hobby Lobby’s religious exercise by forcing it to include emergency contraceptives in its health plan or pay draconian fines; and (3) the government is unlikely to justify that burden under “strict scrutiny.” This decision is extraordinarily important for many reasons. It is the first federal appellate decision to address the legality of the HHS mandate. It was issued by the entire Tenth Circuit (the “en banc” Court), which is a procedure reserved only for the most important cases. And it establishes the legal precedent that Hobby Lobby—and many other religious businesses—have been fighting for: that people don’t forfeit their faith simply because they run a business.
(22) Can a corporation have religious rights?
The full Tenth Circuit, by a 5-3 vote, ruled that for-profit corporations cannot be excluded from the protection of the Free Exercise Clause and the Religious Freedom Restoration Act. The Court reasoned that nearly a century of Supreme Court precedent recognized that corporations exercise all kinds of constitutional rights, and that it would be arbitrary to cross “religious exercise” off that list. The Court squarely rejected the federal government’s argument that for-profit corporations are always “secular” and by definition can never exercise religion.
(23) Will the Supreme Court hear this case?
We’ll have to wait and see. The federal government could ask the Supreme Court to review the Tenth Circuit’s decision, or it could wait for the case to progress further.
(24) How many for-profit companies have filed lawsuits against the HHS mandate?
Currently there are over 30 for-profit lawsuits. 22 have received an injunction, and only 6 have been denied. Read about all the cases here.
(25) Do all the for-profit businesses have the same legal claims?
All the for-profit lawsuits challenge the government mandate as a violation of the First Amendment of the U.S. Constitution, the Religious Freedom Restoration Act (RFRA), and other federal laws.
(26) Do businesses have religious rights?
Americans don’t forfeit their rights just because they go into business to provide for themselves and their family. Businesses are ultimately made up of people, and people have religious beliefs. You can seek to make a living and also–as Lincoln said–try to do right “as God gives us to see the right.” In fact, that’s exactly what millions of Americans do — they earn a living to support their families, but also try to do right while providing for their families. Government should not force people to give up their livelihoods as the price for keeping their faith.
(27) What are the policy implications of denying religious freedom to business owners?
It is important to remember that before the mandate all Americans–including business owners–had the right to follow their consciences. It was only after Secretary Sebelius issued the mandate that there was a conflict between the commands of government and the commands of faith. That means that by definition the mandate is going to push many religious employers out of the market, reducing the number of jobs available. Thus the mandate is restricting exactly what our economy needs most right now—job creators. Americans should not have to choose between following their religious beliefs and providing jobs for others. That is bad policy any time, but it is especially bad policy during these difficult economic times.
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HHS Information Central – All cases, timeline, links, and an interactive map
Becket Fund’s HHS Case page — read about our clients