The dispute involves new mandates prescribed by Section 1001 of the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148), which require insurance to cover approved preventive services free of charge.  In August 2011, the Administration revised an existing interim final rule to require coverage of “all Food and Drug Administration approved contraceptive methods, [including] sterilization procedures.”  The August 2011 revised rule also included a narrowly tailored religious exemption – one that exempted churches themselves from the contraceptive requirements.  It did NOT exempt institutions that hire and/or serve individuals of other faiths, such as most religious-affiliated schools, hospitals, and charities.

Following conversations between the Administration and various religious officials, on January 20 HHS Secretary Sebelius issued a release saying her department would provide religious-affiliated organizations one additional year to comply with the law.  However, she did not expand the scope of the conscience exemption to include religious-affiliated organizations, as the United States Conference of Catholic Bishops and others requested.

Washington Archbishop Donald Cardinal Wuerl expressed the dilemma many institutions face in a letter to the faithful last week: “The mandate will allow a Catholic school one of three options: 1) violate its beliefs by providing coverage for medications and procedures we believe are immoral, 2) cease providing insurance coverage for all of its employees and face ongoing and ultimately ruinous fines, or 3) attempt to qualify for the exemption by hiring and serving only Catholics.”  Many would consider all of these options untenable, as they impose significant burdens on organizations attempting to carry out the tenets of their faiths.

First, most of the existing state-based mandates provide broader exemptions, which include both churches and religious-affiliated organizations; the new federal guidelines exclude the latter group from the faith exemption.  Second, many religious-affiliated organizations can – and do – circumvent the existing state mandates by offering a self-insured health plan.  Under the Employee Retirement Income Security Act (ERISA, P.L. 93-406), self-insured plans are regulated largely at the federal level, meaning state benefit mandates – on contraception and other services – are pre-empted.  Therefore, the new federal mandate eliminates any opportunity for religious-affiliated organizations to decline providing contraception to their insured workers.

No.  Individuals from across the political spectrum have criticized the Administration’s decision.  Sen. Joe Manchin (D-WV) called the mandate “un-American,” and Sen. Bob Casey (D-PA) objected to “forc[ing] Catholic institutions to violate their religious beliefs.”  Former Rep. Kathy Dahlkemper (D-PA) said she “would have never voted for the final version of [PPACA] if I expected the Obama Administration to force Catholic hospitals and Catholic colleges and universities to pay for contraception.”  And liberal commentators from E.J. Dionne to Mark Shields have likewise criticized the Administration for being unwilling to offer a broader conscience exemption to religious-affiliated institutions.

No.  As early as February 2011, Administration officials told the New York Times they expected to offer contraceptive coverage as a federally required benefit, but hired an outside group to conduct a study on the issue “so the public would see them [i.e., the requirements] as based on science, not politics” – implying Administration officials decided on a contraceptive mandate even before the “independent” study began.  The rulemaking process itself has been similarly opaque.  The Administration reported receiving more than 200,000 comments on the contraceptive issue, but has yet to publish a final rule incorporating those comments.  Despite repeated requests from Congressional staff, Administration officials have refused to release those public comments, or provide any indication whether and when they will be published.

Many believe that the underlying issue is not contraception per se; the broader issue is whether or not religious-affiliated institutions will be able to practice their faith without government intrusion.  If this mandate is upheld in its current form, many may be concerned that other incursions on religious liberty may not be far behind.

Yes.  When the Catholic Archbishop for the Military wrote a pastoral letter regarding the contraceptive issue, the U.S. Army initially prohibited military chaplains from reading the letter at Masses for service-members.  Because of Catholic teachings on abortion and contraception, HHS political officials recently forced career staff to reject a human trafficking grant application from the Conference of Catholic Bishops – even though the bishops’ application was scored highest by an independent review board.  And the Supreme Court recently overturned a policy the Administration attempted to defend whereby government officials could determine who classifies as a religious official.  The cumulative effect of these actions led Michael Gerson to opine that “the war on religion is now formally declared,” in a piece denouncing “Obama’s power grab” as an example of “radical secularism” attempting to impose its will on individuals of faith.

Would a broader conscience exemption hinder access to contraception?

No.  Contraception would still be widely available; however, religious-affiliated employers would not be forced to fund this coverage, which violates the tenets of their faith.