Conscience in Court

If you want a detailed explanation of the illegality of the HHS Mandate read our comments filed with the HHS.

For quicker, to the point answers to common questions, see below.

Frequently Asked Questions

Q: What is the HHS Mandate?

A: The Department of Health and Human Services (HHS) is a regulatory agency that is responsible for establishing some of the details and regulations that the Patient Protection and Affordable Care Act (“Obamacare") needs to be able to function. The HHS Mandate refers to a particular policy instituted by HHS regarding the requirement that all health insurance plans cover “preventive services” without any patient cost sharing. The HHS Mandate adds contraceptives, sterilization, and related counseling and education to the “preventive services” that are required, including contraceptives that have been shown to cause abortions. The Mandate, in other words, forces employers and insurance providers with moral and religious objections to contraception to violate their consciences by funding and supporting practices that they consider to be immoral.

Q: What are “Comments”?

A: Comments are opinions written by members of the public or groups with an interest in a Federal agency’s regulations that are submitted to an agency before the proposed regulations are finalized. Federal regulatory agencies, such as the Department of Health and Human Services (HHS) have a certain amount of discretion in creating the regulations that enforce laws passed by Congress. Part of the process of finalizing these regulations is allowing the public to comment on proposed regulations in an attempt to ensure transparency and to allow parties to speak up who may be unduly affected by some regulation.

Q: Was Obamacare supposed to require contraception?

A: No, nowhere does the Act call for the inclusion of contraceptives, abortifacients, or sterilization as mandatory preventive services without copay. In fact, the requirement that plans cover preventive services was added to the Act as an amendment offered by Senator Barbara Mikulski. In both a press release and a prepared floor statement, Senator Mikulski stated that the treatments to be provided as “preventive services” were procedures such as cervical cancer screenings, mammograms, postpartum depression screenings, domestic violence screenings, and testing for leading causes of death in women, such as heart disease and diabetes. The Senator explicitly stated that the amendment DOES NOT COVER ABORTION, which has never been defined as a preventive service. Pregnancy, after all, is not a disease to be prevented. For more detailed information, please see our Comments, pages 3-7.

Q: Why is the HHS Mandate illegal?

A: The HHS Mandate is illegal for a number of reasons, including violation of the Religious Freedom Restoration Act, First Amendment, and the Administrative Procedure Act. See the following questions and our Comments, pages 7-14, for more information.

Q: What is the Religious Freedom Restoration Act and how does the HHS Mandate violate it?

A: The Religious Freedom Restoration Act (RFRA) is a law passed by Congress that makes all federal laws and regulations subject to strict scrutiny over whether they infringe even indirectly on religious freedom. According to RFRA, even where a federal law is neutral and generally applicable (no exceptions for certain groups or religions), if religious freedom is burdened, there must be a compelling government interest at stake and the law or regulation in question must be narrowly tailored to that interest in the least restrictive way with regard to religious practice.

The HHS Mandate violates this because whether or not it is neutral and generally applicable, (it is neither), there is no compelling government interest behind a mandate to provide contraceptives, sterilization, and related counseling. These things are hotly debated and the government should not come down on one side or the other without Congressional intent. If Congress did decide that it was in the government’s interest that contraceptives be provided, then it is necessary that the resulting law be narrowly tailored to least restrict religion. In the case of the HHS Mandate, there are a number of ways the government could have provided free contraceptives apart from forcing conscientious objectors to pay for them or enable their provision. Thus, the HHS Mandate violates RFRA.

Q: How does the HHS Mandate violate the First Amendment?

A: The HHS Mandate violates the Free Exercise Clause for similar reasons that it violates RFRA. The Mandate is not neutral and generally applicable because of the various exceptions and exemptions it allows for different groups, and is therefore subject to the same strict scrutiny explained in the previous answer. Because the HHS Mandate has no compelling interest and fails to use the least restrictive means to achieve its end, the HHS Mandate violates the Free Exercise Clause of the First Amendment.

Furthmore, by creating certain protected classes of religious organizations and leaving others unprotected, the HHS Mandate violates the Establishment Clause which prohibits special protections for some religious persons and not others.

Q: What is the Administrative Procedure Act and how does the HHS Mandate violate it?

A: The Administrative Procedure Act (APA) is a law that governs the way regulations are enacted. Among the requirements of APA are that agency actions shall not be: arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; contrary to constitutional right; in excess of statutory jurisdiction; without observance of procedure required by law, etc. The HHS Mandate has already been shown to be in violation of constitutional rights and to be in excess of its statutory jurisdiction. The Mandate also violates the Weldon Amendment that prohibits federal programs from mandating that an entity provide abortion coverage. The HHS Mandate has also violated the APA by not following the proper procedure of allowing public comments before being “finalized” in August 2011.

Q: Should I care about the HHS Mandate if I don't have religious or moral problems with contraception?

A: Yes- for two reasons at least:

First, anyone with objections to abortion or the funding of abortion should be alarmed because the HHS Mandate requires coverage of ABORTIFACIENT emergency contraceptives. These drugs have been shown to CAUSE THE DEATH OF A HUMAN BEING by preventing the embryo from implanting or starving the embryo once implanted.

Second, anyone who cares about religious freedom should be alarmed because a dangerous precedent is being set by the extremely narrow protections for conscientious objectors. If the Mandate is allowed to stand, the government can apply the same narrow exceptions to other areas of the law besides health care, incrementally limiting the right of religious practice to a tiny minority of those with religious beliefs. The freedoms of religious exercise and from establishment of religion apply to all citizens and organizations with religious beliefs, not just churches and clergy.

Q: What cases have been filed suing the HHS Mandate?

A: So far, there have been 23 lawsuits filed against the Mandate, representing more than 70 persons or entities. For a complete list, see the Law of Life Project’s “Conscience in Court” summary of cases which includes links to all of the complaints filed in these cases.

Q: What claims are being made?

A: The claims being made include violations of the Religious Freedom Restoration Act, the First Amendment, and the Administrative Procedure Act. For more details, see our Comments and the complaints of any of the lawsuits now in progress. (linked below)

Q: Why is the Hercules case important?

A: The Hercules Industries case is particularly important because it is a prime example of an employer who would not be protected by the very limited “religious exemption” from the HHS Mandate. Nor is Hercules Industries protected by the one-year temporary safe harbor established to give more time to certain other religious employers to “figure out how to violate [their] consciences.” This means that the owners of Hercules Industries needs a decision before August if it is to avoid facing huge fines as a result of obeying their consciences rather than the government’s.

Q: What is the safe harbor and what is a grandfathered entity?

A: The “safe harbor” is the government’s offer of an additional year to certain non-exempt and non-grandfathered religious employers before enforcing compliance with the HHS Mandate. There are strict requirements about who is protected by this temporary safe harbor, including that the employer be a non-profit entity, and that no contraceptives have been previously offered in the health plans provided at least since February 10, 2012 for religious reasons. Again, this means that any for-profit business that is not grandfathered will be subject to the HHS Mandate once it goes into effect.

“Grandfathered” means that the health plan currently offered by an employer can remain as it is, exempt from the HHS Mandate, provided that no substantial diminutions of benefits occur nor any price increases for services. In the rapidly changing healthcare market, these requirements are almost impossible to meet for long and the HHS has admitted as much, acknowledging that few if any grandfathered plans are expected to remain past 2013. This means that the HHS Mandate would apply to nearly all health plans by the end of 2013.

Essentially, the government is defining who is religious and who is not, who gets conscience protections and who does not. The original religious exemption clause, along with the safe harbor and grandfathering create classes of believers with only a tiny minority getting real protection, some being “accomodated,” and the rest of us with moral and religious beliefs being left out in the cold with no conscience protections whatsoever.