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The Relentless Attack on Americans’ Freedom of Conscience

Last Friday afternoon—in its now predictable style of making controversial, anti-life announcements late Friday afternoons when most of the media have gone home and Americans are preparing to relax for the weekend—the Obama Administration announced another ruse to appear concerned with Americans’ freedom of conscience, even though it still fully intends to implement its coercive life-ending drug mandate that forces Americans to violate their deeply held religious beliefs and moral convictions.

The Administration’s ploy this time came by issuing an Advanced Notice of Proposed Rulemaking (ANPRM or “Notice”) regarding the life-ending drug mandate issued under the healthcare law.  The Administration outlines several draft proposals on how to implement the alleged “accommodation” for “religious organizations that object to the coverage of contraceptive services for religious reasons” that President Obama offered on February 10, 2012.  The Notice seeks public comments on the scope of the “accommodation,” what it should look like, who it will apply to, how it will work, etc.

However, the Administration’s decision to seek public comment is a farce.  It is impossible to both guarantee free coverage of life-ending drugs and devices to all Americans and comprehensively protect Americans’ freedom of conscience.  Indeed, the Administration makes it quite clear in its Notice that providing life-ending drugs free of charge is its chief priority, even if this means forcing Americans to violate their deeply held religious beliefs or moral convictions.  This Notice is merely an attempt to punt this debate until after the Election because the Obama Administration knows it is acting unconstitutionally and that the American people do not want their First Amendment freedom of conscience trampled upon.[1]

Notably, according to the ANPRM, the amended final regulations would apply to plan years starting on or after August 1, 2013; however, the regulations that the Department of Health and Human Services (HHS) finalized in February of this year—and that mandate coverage for the abortion-inducing drug ella—will still begin to affect health insurance plans as early as August of this year.  Clearly, the consciences of many Americans have been left vulnerable to attack.

According to the Notice, “contraceptive coverage will not be included in the plan document, contract, or premium charged to the religious organization” for religious employers.  Notably, however, even in its discussion of how to implement a supposed “accommodation,” the Administration already limits those who may be protected to “religious employers” (as narrowly defined by the Administration) despite the fact that millions of Americans are not “religious employers” but still oppose abortion-inducing drugs, like ella.

The Notice proposes that the insurance company, or an “independent entity,” would “notify plan participants and beneficiaries” of the availability of coverage for life-ending drugs, and then “provide this coverage automatically to participants and beneficiaries.”  It is worth noting that this particular proposal in last Friday’s announcement is a substantive change from the regulation announced by President Obama on February 10, 2012, which stated that the “coverage” of abortion-inducing drugs would be offered only to those who “desire” it.

The natural next question is who will pay for these life-ending drugs?  The Notice suggests that insurance companies “would pay for contraceptive coverage from the estimated savings from the elimination of the need to pay for services that would otherwise be used if contraceptives were not covered.”  As Secretary Kathleen Sebelius testified in a Hearing before the House Energy and Commerce Committee Subcommittee on Health, the “eliminated” services are prenatal care, labor, and delivery.  In other words, the Administration suggests that providing coverage to end lives is a cost-saving tool.  In reality, this is merely an accounting trick.  Americans will still be forced to pay for these life-ending drugs through their premiums regardless of who is offering the coverage.

Regarding self-insured plans, the Administration’s proposal is more obscure.  The Administration proposes having a third party administrator (who would process the claims) provide life-ending drugs and devices.  Because third party administrators only process claims and do not provide insurance, however, their only source of funding for paying for these controversial services would be the religious employer’s funds.  The Administration invites suggestions for other ways to pay for the coverage in these cases and highlights four approaches:

  • Third party administrators would raise money from non-profits;
  • “Multi-state” plans under contract with the Office of Personal Management (OPM) would be required to pay for life-ending drugs and devices;
  • Third party administrators would use their drug rebates and/or other fees; or
  • The “reinsurance” program, which will only be in effect through 2016, would pay for the coverage.

Again, although the Administration states it is seeking “public comment”—and issued a 32-page Notice containing draft proposals—it makes perfectly clear that it has no intention of diverging from its goal to “ensur[e] the availability of contraceptive coverage without cost sharing for plan participants and beneficiaries,” making it unfeasible to protect Americans’ freedom of conscience.

Yet again, under the guise of an “accommodation”—the Obama Administration has made clear it has no intention of providing comprehensive conscience protections for all Americans, consistent with longstanding federal law and Americans’ constitutionally protected First Amendment rights.  For example, unless the final rule extends protection to for-profit employers, non-religiously affiliated non-profits, and individuals—all of these Americans’ conscience rights will be left unprotected and they will be forced to provide coverage of life-ending drugs and devices.

Failure to enact comprehensive conscience protections not only will continue to violate the principles of longstanding conscience protections in federal law, but also will violate state conscience protection laws.  The Notice issued on Friday underscored in particular that state conscience laws are in jeopardy because HHS states that “in [s]tates with broader religious
exemptions than that in the final regulations, the [state] regulations will be narrowed to align with that in the final regulations because this will help more consumers.”  In other words, HHS is forcing state to abandon longstanding laws protecting freedom of conscience.  In the Notice, HHS beneficently notes that for states with strong conscience protections, it will allow them to have a “year” to “adapt” their consciences to that of the Obama Administration.

In conclusion, it seems this Administration fails to understand that the Constitution does not allow for phony “accommodations.”  It fails to understand that Americans will not acquiesce to its attempts to destroy our freedoms, to force Americans to have healthcare insurance that pays for and promotes care that ends lives, or to mandate coverage for abortion-inducing drugs.

Do not fall for the Administration’s most recent antics—the current Administration continues to wage its war against freedom and refuses to stop coercing Americans to violate their consciences.  The Administration’s Notice issued on Friday makes it very clear that HHS has no intent of veering from its goal of ensuring that life-ending drugs be offered to every woman free of charge, regardless of some Americans’ objection to providing these drugs on moral, ethical, and/or religious grounds.


[1] The initial comment period is 90 days and is only the first step toward finalizing the regulations.  Following the receipt of public comment, the Administration will publish a Notice of Proposed Rulemaking (NPRM), which will permit additional public comment, followed by the amended regulations.