AGs call for broader exceptions to contraception mandate

By Jessica M. Karmasek | Apr 4, 2013

COLUMBUS, Ohio (Legal Newsline) -- Thirteen state attorneys general are urging the U.S. Department of Health and Human Services to adopt broader religious exceptions to its controversial contraception mandate.

The mandate, which was imposed under the health care law signed by President Barack Obama in 2010, requires employers to offer contraception coverage or they may be fined.

The attorneys general voiced their concerns in a letter sent last week to HHS Secretary Kathleen Sebelius.

The letter was signed by attorneys general from Alabama, Colorado, Florida, Georgia, Idaho, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas and West Virginia.

To implement the Patient Care and Affordable Care Act, HHS mandated last year that "non-grandfathered," non-exempt employers, including those with religious and conscience-based objections, would have to provide coverage for all FDA-approved contraceptive methods and sterilization procedures, including the "morning-after pill" and the "week-after pill."

The letter sent by the attorneys general March 26 is a public comment on proposed amendments the federal agency claims addresses faith and conscience-based objections that were raised to the original mandate.

In their three-page letter, the attorneys general identify several problems with the proposed regulations under the Religious Freedom Restoration Act. That federal law, signed into law in 1993, imposes "strict scrutiny" of all federal government actions that substantially burden the exercise of religion.

First, the attorneys general argue that the proposed regulations give only some very limited class of nonprofit religious organizations an exception to the mandate, even though there is no compelling reason to treat different religious organizations differently.

"The proposed regulations allow an absolute exception for some religious nonprofits and deny that exception to other groups without any compelling reason for distinguishing between the two groups," they wrote.

Secondly, for nonprofit religious organizations not covered by the exception, the regulations require insurance companies to provide "free" coverage for "reproductive services."

This plan appears to be a "shell game" that does not alleviate the burden on the exercise of religion, the attorneys general contend.

"We all know that insurance companies do not provide anything for free; the employers are still going to be paying for these services through increased premiums or otherwise even if the insurance company technically covers those products through a separate 'free' policy," they wrote.

Lastly, the regulations provide no exception at all for for-profit business owners who object on conscience grounds.

"We fear that the HHS mandate is the first of many regulations under the Affordable Care Act that will conflict with legal protections for religious liberty and the right of conscience. We respectfully submit that RFRA requires you to adopt the broadest possible religious exceptions to the HHS mandate," the attorneys general concluded.

Ohio Attorney General Mike DeWine is currently pursuing litigation in defense of religious liberties.

The state is a party to a religious liberty lawsuit challenging the regulations, and the state has filed amicus briefs in other related cases in the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Court for the District of Columbia.

"Despite repeated claims to the contrary, President Obama's proposed rules clearly require Ohio employers and religious organizations to violate their consciences," DeWine said in a statement last week.

The attorney general argues that the regulations will force many employers to choose between harsh penalties and violating their conscience.

"The unfortunate reality is that many employers will cease to offer health insurance or will be coerced into acting against their consciences, and the work of charities will be impeded," DeWine said.

"This is another example of why Obamacare is bad policy, and it is another reason why I have joined attorneys general across this county to protect American families from its illegal overreach."

Oklahoma-based Hobby Lobby Stores Inc. is one of the more prominent businesses suing over the mandate.

The arts and crafts retailer and fellow plaintiffs David Green, Barbara Green, Steve Green, Mart Green and Darsee Lett filed their lawsuit in the U.S. District Court for the Western District of Oklahoma in September.

In its complaint, the store argues that the mandate would force "religiously-motivated business owners," such as themselves, to "violate their faith under threat of millions of dollars in fines."

With more than 13,000 full-time employees, Hobby Lobby contends it faces fines of about $26 million a year -- that is, if it drops employee insurance altogether -- and additional fines of $1.3 million a day if it chooses to offer insurance that does not include all of the mandated drugs and services.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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