HHS Contraceptives Mandate Developments

No, the Little Sisters of the Poor are not about to be driven out of the United States because they object to contraceptives and abortifacients, cannot afford to be assessed the federal penalties for not offering health insurance or for offering health insurance that does not cover all legal contraceptives, and, not being a church, are not exempt from the mandate.

But that is only because they are being currently shielded from the mandate by the one-year “temporary enforcement safe harbor” that the federal government has instituted while it figures out what to do about the very many non-church religious organizations that have a deep objection to the requirement that the health insurance they offer to their employees must cover “all FDA-approved contraceptive services.” If the accommodation that finally is announced by the administration does not adequately protect the religious freedom of the Little Sisters, they may have to leave the USA, just as they have had to leave other countries that have not respected religious freedom.Imagine the headlines!

Or not! It is amazing how little coverage most media outlets are giving to this huge religious freedom story that continues to unfold, thanks to the ill-designed contraceptives mandate. For example, if you did not read specialized news sources or regularly consult the Becket Fund for Religious Liberty webpage on the HHS contraceptives mandate, would you know:

* Yes, Hobby Lobby was turned down by the 10th Circuit appeals court in its attempt to get a preliminary injunction, and Supreme Court Justice Sotomayer turned down its request for the US Supreme Court to step in. However, rulings have now been issued in a dozen cases brought by for-profit businesses, and 9 of the businesses have won injunctive relief from the mandate.

* Yes, as the press has reported, many Catholic religious nonprofits and Catholic-owned businesses have sued the federal government–but so have Baptist and other Protestant colleges, and also a Mennonite-owned business.

* Far from taking the federal government at its word that it will fix the religious-freedom problems it has created, the federal courts are holding the government’s feet to the fire. One federal court is requiring regular reports from the administration, and in the recent Belmont Abbey College/Wheaton College decision from the DC Circuit appeals court, the administration was forced to make legally binding promises to forge a religious-freedom solution for non-church religious organizations before the end of the first quarter of 2013 and to finalize the accommodation before August 1, 2013.

Of course, even good accommodation language may not be good enough. It won’t be good enough if in effect non-church organizations continue to be treated as not having as good a religious freedom claim as churches. And it won’t be good enough if it protects religious nonprofit organizations but gives no religious freedom relief to companies whose owners desire to operate their companies consistent with their religious convictions.