Moore: New HHS rules violate religious liberty
WASHINGTON (BP) -- The Obama administration's latest rules for its abortion/contraception mandate fail to resolve religious liberty concerns and should be scrapped, Southern Baptists' lead ethicist Russell D. Moore has told the federal government.
–- Russell D. Moore
The latest rules in an ongoing controversy provide a new option for notification by non-profit religious organizations that object to the mandate. A non-profit may notify HHS in writing of its religious objection to providing coverage of all contraceptives or those that are potentially abortion-causing. In response, the federal government will notify the insurer or a third-party administrator it is responsible for providing employees of the non-profit with payments to cover the services. The new version no longer requires the non-profit to authorize the government to contact its insurer.
While the ERLC is pleased HHS recognizes the conscience problems with the regulations, it is "deeply disappointed, however, that [HHS] still believes it should be the arbiter of the line between what constitutes protected religious activity and what does not," Moore wrote in his comments.
The new option, or accommodation, in the rules does not eliminate the moral objection by religious organizations, he said.
"Non-exempt religious organizations which object to providing abortifacients on moral and religious grounds are still the conduit by which employees receive the drugs and devices," Moore wrote.
"Non-exempt organizations are unable to comply with the rules, and, at the same time, maintain fidelity to their religious beliefs," he said. "The new accommodation is merely a reshuffling of the paperwork and does not resolve the concerns of non-exempt religious organizations: their actions are ultimately providing abortifacients to their employees."
The new rules are the most recent effort by the government to satisfy moral objections by employers with pro-life convictions while expanding contraceptive access as part of the controversial 2010 health-care law. The abortion/contraception mandate, which HHS issued as part of implementing the health-care measure, requires coverage of such drugs as Plan B and other "morning-after" pills that appear to possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers "ella," which -- in a fashion similar to the abortion drug RU 486 -- can act even after implantation to end the life of a child.
HHS provided an exemption to the mandate for churches and their auxiliaries but did not extend it to non-church-related, non-profit organizations that object. The result has been 102 federal lawsuits by nearly 320 parties, according to the Becket Fund for Religious Liberty, which has led the diverse effort challenging the mandate.
The rules are not only deficient because of their breach of the First Amendment, Moore said, but because they:
-- Defy the Religious Freedom Restoration Act, a 1993 law which requires the federal government to have a compelling interest to burden religious exercise and to use the least restrictive means in doing so.
-- Do not alter the mandate's effect, leaving the organization as "the trigger for setting in motion the provision of these objectionable items."
-- Create tiers of protection for religious groups, favoring churches and affiliated organizations over other faith-based organizations.
-- Disregard the stated intent of the White House and Congress, both of which said the law would not permit the use of taxpayer money for abortions.
The latest rules "continue to show serious disregard for constitutionally guaranteed religious freedom," Moore wrote. "The new rules continue to run afoul of faith and conscience. They should be rejected altogether as offensive to faith and unworkable under the scrutiny of the First Amendment."
The Alliance Defending Freedom (ADF) also objected to the rules in comments for the federal government.
"The government should not force organizations to violate their religious convictions by providing abortion pills to their employees or students," ADF Senior Counsel Gregory Baylor said. "The administration has once again failed to extend its existing religious exemption to all organizations with sincere religious objections to the mandate. That would have been the best way of respecting freedom for everyone."
The latest round of objections to the federal abortion/contraception mandate came while the state of California has gone so far as to require churches to cover elective abortions. The state informed insurance companies in August the California Constitution and a state law require coverage of abortion in group plans, according to WORLD News Service (WNS).
Seven California churches filed a complaint with HHS, pointing to federal laws that bar funds for elective abortions or permit the federal government to withhold money from any state that does not protect conscience rights in health plans, WNS reported.
"No state can blatantly ignore federal law and think that it should continue to receive taxpayer money," said Casey Mattox, senior counsel of ADF, which is co-representing the churches, according to WNS.
In August, the administration also announced guidelines seeking comment on an accommodation for "closely held," for-profit companies, such as Hobby Lobby and other family owned businesses. The rules regarding "closely held" for-profits followed the Supreme Court's June opinion in favor of the religious liberty rights of Hobby Lobby and a family-owned Pennsylvania cabinet-making company. ADF filed comments criticizing the rules and urging their revision.
The ERLC issued an analysis of the new HHS rules when they were announced in August. The analysis by Barrett Duke, vice president for public policy, and Andrew Walker, director of policy studies, may be accessed here.