The HHS Mandate continues to make news, so I thought it would be worthwhile to give a quick, plain-language overview of where things stand, and what’s at stake.
What is the “HHS Mandate”?
The “HHS mandate” comes from a provision in the “Affordable Care Act” (the “ACA”, which is typically being called “Obamacare”) that requires all employers who offer health insurance to include coverage for “preventive services”. The term “preventive services” has been defined by the Department of Health and Human Services (“HHS”) to include contraceptive drugs and devices (including “emergency contraception”, which causes early abortions) and sterilization operations.
The mandate went into effect as of January 1. As of that day, religious non-profits were faced with a terrible dilemma — sacrifice their religious beliefs and obey, or face the consequences of non-compliance.
What’s at stake if organizations don’t comply?
If an employer’s health insurance plan does not provide the coverage required by the HHS Mandate, they are subject to a fine of $100 per day per employee. An employer with 100 employees would be fined $10,000 every day, or $3.6 million per year.
There are thousands of religious non-profits in this situation. Take one small case — the Little Sisters of the Poor (whose case is much in the news these days), who employ hundreds of people at their thirty nursing homes. They could face fines of over $50 million per year for non-compliance. Obviously, that would put them and their nursing homes out of business.
When you look at the even bigger picture, the numbers become staggering. Catholic Charities reports that their affiliated agencies have over 70,000 employees nationwide. If all of those agencies were non-compliant, they would risk a total of over $2.5 billion in fines every year.
Isn’t there an exemption for religious employers?
There are many exemptions from the entire ACA. For example, members of religions that oppose insurance benefit programs (e.g., the Amish) do not have to comply with any part of the law. Over the past few months, the Administration has granted new exemptions, waivers, and delays, due to the mess associated with the new health exchange websites, and all the other chaos involved in implementing such a complicated new law. So there are lots of people who don’t have to comply with all or part of the ACA.
As for the HHS Mandate itself, the Administration did give a very narrow exemption from the HHS Mandate for churches. There is an “accommodation” for some religious non-profit organizations (e.g., Catholic Charities, Catholic hospitals). There is no exemption for for-profit companies.
But there’s an important catch involved in the “accommodation” for religious non-profits. They can only qualify if they file a form that directs their insurance company to provide coverage for contraception and sterilization. This is not “just a form”. Instead, it’s a “permission slip” — it is the key document that triggers insurance coverage for the offensive services.
So, regardless of the Administration’s claim that they have “accommodated” religious non-profits, the reality is that faith-based organizations have to become directly involved in immoral behavior — or risk the ruinous fines outlined above.
What’s going on in court?
There are dozens of lawsuits across the country challenging the HHS Mandate, on the basis of religious liberty. The cases rely on the Free Exercise Clause of the First Amendment to the U.S. Constitution, and a federal law called the “Religious Freedom Restoration Act”. These cases are all working their way through the federal courts.
A number of for-profit businesses have brought lawsuits against the HHS Mandate on the basis of their religious beliefs. The Supreme Court has agreed to decide cases brought by two businesses (Hobby Lobby and Conestoga Wood). There are a number of thorny legal issues involved in these cases, including whether corporations have religious liberty rights at all. The issues will be hotly contested, and many people will file briefs on the case, including the US Bishops, who will support the companies’ position. The Court will decide the cases by June.
Many other cases have been brought by religious organizations, including the Archdiocese. Twenty of these cases have been decided so far, and nineteen have resulted in victories — the courts have held that the “permission slip” form is a violation of their religious liberties. The Government is appealing their losses, and the Supreme Court will have the final word. But no decision is expected for at least a year.
One case that has been in the news was brought by the Little Sisters of the Poor. They lost in the lower court, but Supreme Court Justice Sotomayor has issued a “stay” — an order that puts the lower court’s decision on hold, so that the Sisters could appeal. The government has opposed the “stay”, and a decision by the full Supreme Court will determine whether the Sisters will face tens of millions of dollars in fines while they appeal. But no matter what the Court rules on the “stay”, the Sisters will still have to go back and fight out their case in the lower courts on the merits.
So what can we do?
Of course, the most important thing is to pray for the conversion of heart of the President and his Administration, and for the success of the lawsuits against the mandate. There are lots of prayer resources at the U.S. Bishops’ website.
We can also take action. Please contact your Congressional representatives and urge them to support authentic conscience protection, and a full repeal of the mandate. The quickest way to do that is through the National Committee for a Human Life Amendment’s Action Center.