The NCBC Responds to HHS’ Advance Notice of Proposed Rulemaking on ‘Preventive Services’By Mark Bradford, National Catholic Bioethics Center
Posted on: Wednesday, June 20th, 2012
On June 18 the National Catholic Bioethics Center provided public comment in response to the U.S. Department of Health and Human Services’ Advance Notice of Proposed Rulemaking on Preventive Services.
On February 10, 2012, HHS promulgated the Final Rule which requires all group health plans (including student health insurance plans) and health insurance issuers to provide the full range of US Food and Drug Administration -approved contraceptive methods, as “preventive services” for women. These methods include potential abortifacients such as so-called emergency contraception and Intra Uterine Devices (IUDs), as well as surgical sterilizations. Furthermore, no co-pays are to be charged to beneficiaries. The Mandate narrowly defines the exempted religious employer in a manner that excludes almost all of the ministries of the Catholic Church. Through the Proposal, HHS sought public comment on the Administration’s intention to propose additional regulations, in order to establish “alternative ways” of “ensuring contraceptive coverage for plan participants and beneficiaries” enrolled in plans offered by non-exempt “religious organizations” that object to such coverage while, at the same time, “accommodating such organizations.”
The NCBC opposes the Mandate and has identified in it, as well as in the Proposal, the significant constitutional as well as practical problems in its implementation:
- Clearly, the Mandate constitutes a violation of the First Amendment to the United States Constitution and the Religious Freedom Restoration Act. It creates a discriminatory bifurcated definition of religious organizations, illegally restricting the religious freedom of most of them, with no statutory authority to do so. The attempt in the Proposal to create alternative compliance mechanisms for persons who hold religious objections to this mandate results in an identical outcome for both self-insured and contracted plans: insurers, employers, colleges and universities, and beneficiaries are required to concede their right to religious freedom.
- None of the faux mechanisms to protect religious freedom in the Proposal accomplish the stated intent. The Proposal even suggests that the federal government has the legal right to determine which type of religious objection is to be respected, based on the type of contraceptive found to be morally objectionable.
- The Proposal compares the Mandate to existing and robust religious freedom protections in state law, which is factually inaccurate and misleading.
- Lastly, the entire Mandate is destructive not only to the plan sponsors who hold an objection to it, but to the community and beneficiaries whom it purports to protect by providing “preventive services.”