Q&A on Contraception and Freedom of Conscience

What is at issue?
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.
What are the practical implications of the new federal contraception mandate on religious-affiliated organizations?
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.
How is the new federal mandate different from existing state mandates on contraception?
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.
Sen. Harry Reid said Democrats “fully support” the Administration’s decision; is he correct?
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.
Has the process leading to the contraception mandate been open and transparent?
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.
Who should be concerned by this new federal mandate?
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.
Has the Administration taken other actions that may be construed as constricting First Amendment freedoms?
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.

Administration Rules Against Catholic Church on Contraception

The Washington Post is reporting that the Administration “will allow religious organizations a one-year delay” before complying with a new Obamacare mandate to offer contraceptive coverage – “but the rule itself and the employers covered by it remain unchanged.”  This rule requires organizations like religious schools and Catholic hospitals to offer contraceptive coverage to employees covered by their health plans – even if doing so violates the tenets of their faith.

The rule, and the Administration’s broader dealings with the Catholic church, have generated much controversy.  Some have written that “a part of [the Obama] Administration is at war with Catholic leaders and Catholic belief.”  Moreover, an Administration that claimed to end the “war on science” has on multiple occasions related to contraceptive issues manipulated the process, and/or overridden the recommendations of non-partisan experts, to achieve political victories for its liberal allies.

The bottom line: This decision looks suspiciously like yet another political stunt designed to delay the controversy by another year, until after the President’s re-election campaignMake no mistake however – this ruling forces religious organizations to violate the fundamental tenets of their faith, or stop offering health insurance coverage to their employees.  Time will tell whether those institutions choose the former or the latter course – but neither option should be necessary, if the Administration had not taken such an unbending approach to appease its liberal base.

Liberal Double-Standards on Contraception

Several media outlets reported over the weekend that White House officials participated in a conference call with pro-choice groups late last week regarding the status of contraceptive coverage mandates related to Obamacare.  The call came amidst rumors that the Administration may expand conscience exemptions to the contraception mandate, so that Catholic hospitals and other faith-based institutions may continue to offer health insurance coverage not in conflict with their religious beliefs.

Two claims in these articles merit rebuttal.  The first, in the New York Times, is the White House’s claim that including contraceptive coverage in a package of mandatory women’s services was “based on science.”  Unfortunately for the White House, Administration officials themselves undermined this assertion back in February, as quoted in another Times piece:

Administration officials said they expected the list [of required benefits] to include contraception and family planning because a large body of scientific evidence showed the effectiveness of those services.  But the officials said they preferred to have the panel of independent experts make the initial recommendations so the public would see them as based on science, not politics.

In other words, the Administration decided back in February to require coverage of contraceptive services, and merely used the public process to provide political cover to a decision that had already been made by Administration officials.

The second was an allegation by Rep. Nita Lowey in a Huffington Post article stating that the Administration was playing politics by considering an expansion of the conscience exemption.  Unfortunately, this Administration has been playing politics all along – as noted above, the process leading to the conscience regulations appears to have been rigged well in advance to achieve an outcome favorable to the President’s liberal supporters.  Additionally, the Administration recently rejected renewing a human trafficking grant previously awarded to the United States Conference of Catholic Bishops, and the Washington Post explained why:  “Senior political appointees at HHS awarded the new grants to the bishops’ competitors despite a recommendation from career staffers that the bishops be funded based on scores by an independent review board.”

Given these developments, some have written that “a part of [the Obama] Administration is at war with Catholic leaders and Catholic belief.”  Just as relevant is whether or not the Administration that claimed to end the “war on science” has on two separate occasions related to contraceptive issues manipulated the process, and/or overridden the recommendations of non-partisan experts, to achieve political victories for its liberal allies.

Liberal Double Standards on Contraception

Several media outlets reported over the weekend that White House officials participated in a conference call with pro-choice groups late last week regarding the status of contraceptive coverage mandates related to Obamacare.  The call came amidst rumors that the Administration may expand conscience exemptions to the contraception mandate, so that Catholic hospitals and other faith-based institutions may continue to offer health insurance coverage not in conflict with their religious beliefs.

Two claims in these articles merit rebuttal.  The first, in the New York Times, is the White House’s claim that including contraceptive coverage in a package of mandatory women’s services was “based on science.”  Unfortunately for the White House, Administration officials themselves undermined this assertion back in February, as quoted in another Times piece:

Administration officials said they expected the list [of required benefits] to include contraception and family planning because a large body of scientific evidence showed the effectiveness of those services.  But the officials said they preferred to have the panel of independent experts make the initial recommendations so the public would see them as based on science, not politics.

In other words, the Administration decided back in February to require coverage of contraceptive services, and merely used the public process to provide political cover to a decision that had already been made by Administration officials.

The second was an allegation by Rep. Nita Lowey in a Huffington Post article stating that the Administration was playing politics by considering an expansion of the conscience exemption.  Unfortunately, this Administration has been playing politics all along – as noted above, the process leading to the conscience regulations appears to have been rigged well in advance to achieve an outcome favorable to the President’s liberal supporters.  Additionally, the Administration recently rejected renewing a human trafficking grant previously awarded to the United States Conference of Catholic Bishops, and the Washington Post explained why:  “Senior political appointees at HHS awarded the new grants to the bishops’ competitors despite a recommendation from career staffers that the bishops be funded based on scores by an independent review board.”

Given these developments, some have written that “a part of [the Obama] Administration is at war with Catholic leaders and Catholic belief.”  Just as relevant is whether or not the Administration that claimed to end the “war on science” has on two separate occasions related to contraceptive issues manipulated the process, and/or overridden the recommendations of non-partisan experts, to achieve political victories for its liberal allies.

Legislative Bulletin: Senate Amendments to H.R. 493, Genetic Information Nondiscrimination Act

Order of Business:  The Senate amendments to the bill are reportedly scheduled to be considered on Thursday, May 1, 2008, subject to a closed rule that provides for one hour of general debate on the Senate amendments and waives all points of order against the amendments (except those arising under PAYGO).

Summary:   H.R. 493 would prohibit the use of genetic information by employers in employment decisions and by health insurers and health plans in making enrollment determinations and setting insurance premiums.  The specific provisions of the bill as amended by the Senate are summarized below.

  • Amends the Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code to prohibit a group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, from the following:
    • Adjusting premium or contribution amounts for the group covered under the plan on the basis of genetic information;
    • Requiring an individual or a family member to undergo a genetic test;
    • Requesting, requiring, or purchasing genetic information for underwriting purposes; and
    • Requesting, requiring, or purchasing genetic information with respect to any individual prior to that individual’s enrollment under the plan or coverage in connection with their enrollment.

The bill allows for certain research exceptions to the above prohibitions.

  • Defines an individual or a family member for purposes of this Act as:
    • The fetus inside of a pregnant mother; and
    • Any embryo legally held by the individual or family member (with respect to assisted reproductive technology).
  • Defines genetic test as: “an analysis of human DNA, RNA, chromosomes, proteins, or metabolites, that detects genotypes, mutations, or chromosomal changes.”  The definition does not include the following:
    • “An analysis of proteins or metabolites that does not detect genotypes, mutations, or chromosomal changes; or
    • “An analysis of proteins or metabolites that is directly related to a manifested disease, disorder, or pathological condition that could reasonably be detected by a health care professional with appropriate training and expertise in the field of medicine involved.”
  • Imposes a penalty against any plan sponsor or group health plan for failure to meet requirements with respect to genetic information in connection with their health plan.  The penalty would be $100 each day in noncompliance with respect to each participant to whom such failure relates.  Under certain circumstances, the penalty could not be less than $15,000 per participant.  In addition, the Secretary could waive the penalty under certain circumstances.
  • Prohibits a health insurance issuer in the individual market from doing the following:
    • Establishing rules for the eligibility of any individual to enroll in individual health insurance coverage based on genetic information;
    • Adjusting premium or contribution amounts for an individual on the basis of genetic information concerning the individual or a family member;
    • Imposing any preexisting condition exclusion based on the basis of genetic information, with respect to their coverage;
    • Requesting or requiring an individual or family member to undergo a genetic test;
    • Requesting, requiring or purchasing genetic information for underwriting purposes; and
    • Collecting genetic information with respect to any individual prior to the individual’s enrollment under the plan.
  • Prohibits an issuer of a Medicare supplemental policy from the following:
    • Denying or conditioning the issuance of a policy and from discriminating in the pricing of the policy of an individual on the basis of genetic information;
    • Requesting or requiring individuals to undergo genetic tests; and
    • Requesting, requiring, or purchasing genetic information during underwriting.
  • Directs the National Association of Insurance Commissioners (NAIC) to modify its NAIC model regulations to mirror the above prohibitions required by this Act.
  • Directs the Secretary of Health and Human Services to revise the Health Insurance Portability and Accountability Act (HIPAA) private regulations to be consistent with provisions in this Act, affecting the use of genetic information.
  • Prohibits employers, employment agencies, and labor organizations from the following:
    • Refusing to hire an employee or discriminating against an employee because of genetic information related to that individual;
    • Limiting, segregating or classifying employees in any way that would deprive or adversely affect the status of the employee due to their genetic information; and
    • Requiring or purchasing genetic information, except in certain circumstances.
  • Requires employers, employment agencies, and labor organizations to maintain any genetic information about employees or members as confidential, subject to certain exceptions.
  • Provides for remedies with the Equal Employment Opportunity Commission (EEOC) against employers who engage in discriminatory employment practices with respect to their employees’ genetic information.

Additional Background on Senate Amendments:  On March 4, 2008, 11 Senators, led by Sen. Tom Coburn (R-OK), sent a letter to Majority Leader Reid and Senate HELP Committee Chairman Kennedy outlining remaining conservative concerns regarding passage of the Genetic Information Non-Discrimination Act (GINA).  A summary of those concerns, along with the ways in which the compromise language addressed the issues raised in the March 4 letter, follows below.

  • Title I imposes requirements on health plans regarding insurance coverage, while Title II imposes requirements on employers regarding employment and related hiring decisions.  Earlier drafts of the bill did not include language clarifying that group health insurance plan sponsors may not be subjected to the more expansive remedies provided by Title II, which provides for rulemaking by the Equal Employment Opportunity Commission (EEOC), and remedies before the same body and, ultimately, federal courts.  This “firewall” provision was incorporated into the Senate agreement, which should ensure that the broader remedies available in Title II will be used only against employers who violate their employees’ civil rights, not for employees seeking to litigate group health plan disputes.
  • The Senate agreement maintained language in the original House-passed bill ensuring that entities covered under the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations can continue to communicate medical and genetic information consistent with the HIPAA statute without facing a separate and potentially conflicting regulatory regime under GINA.
  • The Senate agreement also includes clear language excluding “manifested” diseases from GINA’s provisions.  In general, health plans can receive information about whether an individual has a manifested disease, and these facts can be used during the underwriting process for individual and small group coverage in some states.  By maintaining current law clarity, the agreement’s language would maintain long-established underwriting processes for already-occurring health conditions—while providing protections for genetic information for diseases not yet manifest in patients.
  • Lastly, as a result of efforts by the Congressional Pro-Life Caucus, the Senate agreement maintained language in the House-passed bill extending GINA protections to any fetus carried by pregnant women or any embryos held by individuals or family members.  Maintaining this language ensures that families will not have an economic incentive to abort their unborn children, fearing that they could be discriminated against due to results from prenatal testing.  Groups such as Family Research Council and the National Conference of Catholic Bishops have endorsed the compromise Senate language for this reason. 

To the extent that concerns still remain regarding the GINA language, they revolve primarily around the strength of the “firewall” language, and the lack of a general-purpose “business necessity” exemption for companies that may find a legitimate need to utilize genetic information for a reason not expressly authorized within the statute.  Some business groups also question whether and to what extent genetic non-discrimination legislation is necessary, particularly as insurers are currently prohibited from such discrimination.  Nevertheless, the significant progress made on the concerns outlined by Sen. Coburn and his colleagues outweighed any lingering concerns, leading the Senate to approve the bill by a 95-0 vote.

Legislative History:  H.R. 493 was introduced on January 16, 2007, and referred to the House Committees on Education and Labor, Energy and Commerce, and Ways and Means.  The Education and Labor Committee held a mark-up and reported the bill, as amended, by voice vote on February 14, 2007.  The Energy and Commerce Committee held a mark-up and reported the bill, as amended, on March 23, 2007.  The Ways and Means Committee held a mark-up and reported the bill, as amended, by voice vote on March 21, 2007.  The bill was passed on April 25, 2007, by a vote of 420-3.  On April 24, 2008, the Senate passed the bill with an amendment by a 95-0 vote.

Cost to Taxpayers:  According to CBO, enacting H.R. 493 “would increase the number of individuals who obtain health insurance by about 600 people per year, nearly all of whom would obtain insurance in the individual market.  The bill would affect federal revenues because the premiums paid by some of those newly insured individuals would be tax-deductible.” As such, CBO estimates that the bill would reduce revenues by less than $500,000 in each year from 2008 through 2017, by $1 million over the 2008-2012 period, and by $2 million over the 2008 through 2017 period.

In addition, CBO states that “the bill’s requirements would apply to Medicare supplemental insurance, which would affect direct spending for Medicare.”  However, CBO estimates that the bill would have no significant effect on direct spending.  Finally, CBO estimates that H.R. 493 would result in discretionary costs of less than $500,000 in FY 2008, and $2 million over the FY 2008 through FY 2017 period.

Does the Bill Expand the Size and Scope of the Federal Government?:  Yes, the bill grants authority to the Secretaries of Health and Human Services, Labor, and Treasury to promulgate regulations and engage in enforcement activities with respect to the Title I provisions relating to health insurance coverage.

Does the Bill Contain Any New State-Government, Local-Government, or Private-Sector Mandates?:   Yes.  According to CBO, the bill would “preempt some state laws that establish confidentiality standards for genetic information, and would restrict how state and local governments use such information in employment practices and in the provision of health care to employees.”  In addition, CBO explains that the bill “contains private-sector mandates on health insurers, health plans, employers, labor unions, and other organizations.”  In both cases, however, CBO does not believe that the cost of the mandates would exceed thresholds established in the Unfunded Mandates Reform Act ($66 million and $131 million in 2007, respectively, adjusted for inflation).