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U.S. bishops give thumbs-down to revised HHS mandate accommodation

U.S. bishops today rejected a revised accommodation to the federal Health and Human Services mandate requiring employers to offer insurance coverage of abortion-inducing drugs, contraceptives and sterilizations.

Agency officials today announced that religious nonprofit employers that do not qualify for the mandate's narrow religious exemption — such as Catholic hospitals, colleges, universities, Catholic charities, and child-welfare agencies — may notify HHS in writing of their objections. The agency will then notify the employer's insurance company, which will then reach out to the employees to provide them with no-cost coverage of the objectionable services. If the employer is self-insured, the federal Department of Labor will notify the employer's third-party administrator, which will then get in touch with employees.

The revised accommodation is effective immediately, but is open to public comment and has not yet been deemed final. The previous version of the accommodation required religiously affilated nonprofit employers to fill out and sign a form documenting their objection to the HHS mandate and submit it to their heatlh insurance company or third-party administrator, thereby indirectly authorizing coverage of the objectionable services.

Archbishop Joseph E. Kurtz of Louisville, who serves as president of the U.S. Conference of Catholic Bishops (USCCB), said the revised accommodation doesn't go far enough.

“On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the 'religious employer' exemption to encompass all employers with sincerely held religious objections to the mandate," Kurtz wrote in a statement. "Instead, the regulations would only modify the 'accommodation,' under which the mandate still applies and still requires provision of the objectionable coverage."

An organization qualifies for the religious employer exemption if it 1. has the inculcation or teaching of religious values as its purpose; 2. primarily employs persons who share its religious tenets; 3. primarily serves persons who share its religious tenets; and 4. is a nonprofit organization under specific sections of the Internal Revenue Code.

Health and Human Services today also asked for comments on how for-profit, closely held corporations that object to the HHS mandate on religious grounds could use the accommodation provided to nonprofit religious employers — nearly two months after the U.S Supreme Court ruled in the Hobby Lobby case that such companies are exempt from the mandate.

The high court said the HHS mandate violated the Religious Freedom Restoration Act, which states that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." In order to win this issue, the government must prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The court noted the mandate was not the "least restrictive means" of furthering the government's interest of providing free contraceptives, abortion-inducing drugs or sterilizations. It also repeatedly noted the government could have granted the accommodation to for-profit corporations with religious objections. 

Kurtz said that option only erodes religious freedom.

"By proposing to extend the 'accommodation' to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom," he stated.

Kurtz stated the USCCB would further study today's regulations and "provide more detailed comments at a later date."