What's the Background?

The “HHS Mandate” that has caused so much uproar is in the “Final Rules” issued February 10, 2012 implementing one section [Section 2713] of the Patient Protection and Affordable Care Act, Public Law 111–148 (commonly called the Obamacare Act). This section mandates contraceptive coverage through all healthcare plans. These contraceptives include abortion-inducing drugs (“morning-after” pills), sterilizations, and much else. A few older plans meet a narrow “grandfather” exception, but as soon as these plans make any significant change, they lose their exemption. Changes are necessary to keep up with changing circumstances and options, so eventually all the grandfathers will pass away.

An "accommodation" was announced for church-related institutions, but it is misleading. The reality is that, after a one year delay, the mandate is simply applied to the institution’s insurance carrier. The school or hospital can pretend it is not providing this coverage, and need not list it explicitly in its insurance policy, but the insurance carrier must provide the coverage to all covered employees at no additional cost. Aside from narrowly defined churches and the shrinking number of grandfather exceptions, it will soon no longer be possible to have an insurance policy that does not include these “services.”

Even the grandfather exemption is on thin ice. The administration is beginning a new rule-making to implement the "accommodation" described above. In the course of this proceding, it would be fairly simple to require the grandfathers' insurance carriers to participate in the same subterfuge. The rule-making did not address the case of self-insured health plans, but announced a new proceeding "to develop policies to achieve the same goals" for these plans.

The problem, obviously, is that some churches believe and teach that contraceptives are immoral. Others believe that use of abortion-inducing drugs is immoral because human life begins at conception. Thus those with strong, faith-based moral objections are required by law to participate in these practices. This affects not only church-related institutions, but also businesses whose owners hold their church’s beliefs and teachings. This sets up a direct conflict between Religious Liberty and government policy.

Moreover, if this precedent stands, it opens the door for virtually any interference by the government (the State) in the internal affairs, beliefs and practices of any church whenever the State decides it has a good reason. The historic separation of powers between Church and State is gone, and the Church has become a vassal to the State.

A new page has been added analyzing the HHS rule-making proceeding that brought the contraception mandate. Is it valid? Will it hold up in court?