U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

73–101 PDF 2012

EXECUTIVE OVERREACH: THE HHS MANDATE 

VERSUS RELIGIOUS LIBERTY 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

FEBRUARY 28, 2012 

Serial No. 112–101 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

FEBRUARY 28, 2012 

Page 

OPENING STATEMENTS 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 6 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 7 

WITNESSES 

The Most Reverend William Lori, Chairman, Ad Hoc Committee on Religious 

Liberty, United States Conference of Catholic Bishops 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 13 

Asma T. Uddin, Attorney, The Becket Fund for Religious Liberty 

Oral Testimony ..................................................................................................... 19 

Prepared Statement ............................................................................................. 21 

Linda Rosenstock, M.D., M.P.H., Dean, School of Public Health, University 

of California, Los Angeles 

Oral Testimony ..................................................................................................... 25 

Prepared Statement ............................................................................................. 27 

Jeanne Monahan, Director, Center for Human Dignity, Family Research 

Council 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 4 

Material submitted by the Honorable Zoe Lofgren, a Representative in Congress from the State of California, and Member, Committee on the Judiciary ......................................................................................................................... 42

Material submitted by the Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress from the State of Georgia, and Member, Committee 

on the Judiciary ................................................................................................... 50 

Material submitted by the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Committee on the 

Judiciary ............................................................................................................... 60 

Material submitted by the Honorable Robert C. ‘‘Bobby’’ Scott, a Representative in Congress from the State of Virginia, and Member, Committee on 

the Judiciary ......................................................................................................... 79 

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 81 

Page

IV 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Post-Hearing Questions and Responses of Asma T. Uddin, Attorney, The 

Becket Fund for Religious Liberty ...................................................................... 106 

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 113 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 193 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Member, Committee on the 

Judiciary ............................................................................................................... 222 

Material submitted by the Honorable Mike Quigley, a Representative in 

Congress from the State of Illinois, and Member, Committee on the Judiciary ......................................................................................................................... 228 

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary ............................................................................................................... 235 

(1) 

EXECUTIVE OVERREACH: THE HHS MANDATE 

VERSUS RELIGIOUS LIBERTY 

TUESDAY, FEBRUARY 28, 2012 

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to call, at 2:35 p.m., in room 2141, 

Rayburn House Office Building, the Honorable Lamar Smith 

(Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbrenner, Coble, Goodlatte, Lungren, Chabot, Issa, Forbes, King, Franks, Jordan, Poe, 

Gowdy, Adams, Quayle, Conyers, Nadler, Scott, Watt, Lofgren, 

Jackson Lee, Waters, Cohen, Johnson, Quigley, Chu, Deutch, and 

Sa ́nchez. 

Staff Present: (Majority) Zach Somers, Counsel; Travis Norton, 

Counsel; (Minority) Heather Sawyer, Counsel; and Danielle Brown, 

Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare recesses of the Committee at any time. We welcome everyone who is with us today, 

both our witnesses and those in the audience, and of course Members. I am going to recognize myself and the Ranking Member for 

an opening statement, and then I will introduce the witnesses, and 

we will look forward to your testimony. 

This is a hearing on Executive Overreach: The HHS Mandate 

Versus Religious Liberty. Religious liberty and freedom of conscience occupy an essential place among our unalienable rights. As 

James Madison observed, ‘‘The religion of every man must be left 

to the conviction and conscience of every man; and it is the right 

of every man to exercise it as these may dictate. This right is in 

its nature an unalienable right.’’ 

However, recent Obama administration policy decisions have 

shown a pattern of open hostility to religious organizations and religious liberty. The Administration has denied Federal grants to religious groups engaged in serving the poor and vulnerable. It has 

deleted religious organizations from the list of nonprofit employers 

that qualify for Federal student loan forgiveness programs. And the 

Administration even argued before the Supreme Court that the 

Federal Government should determine when a church can fire one 

of its religious ministers. All nine justices rejected their argument. 

The Administration is treating the First Amendment right to the 

free exercise of religion as nothing more than a privilege arbitrarily 

granted by the government. Nowhere has this been more true than 

2 

with the Administration’s decision to mandate that religious organizations pay for abortion inducing drugs, sterilizations, and contraception that they find morally objectionable. Such a mandate 

cannot exist within a free society. 

The Administration and its supporters have tried to cast this as 

a women’s health issue to deflect attention away from the mandate’s effect on religious freedom. They assert that religious groups 

are attempting to deny access to drugs and services to which most 

people have no objection This assertion is false. Religious institutions do not seek to dictate what their employees can purchase or 

use. They seek to avoid a mandate that would force them to violate 

their religious convictions. 

Others have pointed to the Administration’s so-called accommodation to argue that the mandate no longer infringes on religion. 

The accommodation is nothing more than an accounting gimmick. 

Insurance companies aren’t going to give the mandated drugs and 

services away for free. Religious employers will still end up paying 

for them through higher premiums. Moreover, religious employers 

continue to be obligated to provide their employees with insurance 

plans that facilitate actions that violate their tenets, and religious 

organizations that self-insure, such as the Archdiocese of Washington, are required to pay for the mandated drugs and services directly. 

The objection to the mandate is not about political party ideology 

or eliminating women’s access to abortion or contraception. It is 

about the respect for the religious liberty guaranteed to all Americans by the Constitution. 

Thomas Jefferson’s bill for establishing religious freedom proclaimed, ‘‘that to compel a man to furnish contributions of money 

for the propagation of opinions which he disbelieves is sinful and 

tyrannical.’’ This is exactly what the HHS mandate has done. Religious employers who object to the mandate are compelled to either 

violate their sincerely held beliefs or be penalized. 

The Federal Government does not have the power to dictate 

what health services religious groups must provide. The HHS mandate is a clear violation of religious freedom and a direct attack on 

the personally held views of many Americans. It is an erosion of 

religious freedoms. If allowed to stand, the HHS mandate will set 

a dangerous precedent for future Administrations that seek to impose their political views on churches and religious institutions. 

That concludes my opening statement, and the gentleman from 

Michigan, the Ranking Member of the full Committee, is recognized, Mr. Conyers. 

Mr. CONYERS. Thank you very much, Mr. Chairman. I am 

pleased to join this discussion today, but I must observe that it is 

a little bit unusual, maybe unfortunate, that in the year 2012 we 

are still debating how and when women can have access to birth 

control. Today we will engage in a discussion at how a Nation committed to protecting individual liberties, the greatest Constitution 

ever created, can achieve a principled and meaningfully balance 

those rights that are in conflict. 

Now, the Court hasn’t wavered in recognizing a woman’s right to 

family planning services, citing the right to privacy in several rulings, starting with Griswold v. Connecticut and Roe v. Wade. Most 

3 

of this Committee is made up of lawyers who studied this before 

they were admitted to the bar, and these cases rule that a woman’s 

right to access birth control cannot be limited by the government 

and that the choice to have an abortion is protected under the due 

process clause of the Fifth and 14th Amendments. So the President’s decision and the Administration’s action is fully supported 

by legal precedent. 

Now, in 1990 the Supreme Court decision in Employment Division v. Smith established that religious exemptions are not constitutionally required for religiously motivated conduct that violates a generally applicable law, and so it seems to me that the 

President and the Health and Human Services Secretary, Kathleen 

Sebelius, have diligently crafted a reasonable and balanced approach that respects the rights of conscience and the right to equality under the law. The Administration’s rule, published on February 15, 2012, ensures that all women have access to contraceptive services as part of their no-cost preventive care and also ensures that nonprofit employers who object to these services on religious grounds do not have to provide or pay for contraceptive coverage. Instead, insurers will contact employees directly and offer 

them this coverage. 

The Department’s rule touches the lives of millions of women and 

their families who need the full package of preventive health care 

services. And while there have been many who will choose to ignore this aspect of the debate, the fact remains that the science 

and the scientific recommendations required by legislation enacted 

into law demonstrates the need for women to have access to these 

services. 

Now, secondly, the science presented backs up the policy of the 

Administration. So what they are doing isn’t just good or acceptable law, but it is also good science. The Independent Institute of 

Medicine, which is part of the National Institutes of Health, after 

a lot of study determined that contraception is a key preventative 

health service for women. Ladies and gentlemen, Members of the 

Committee, this is established science. 

In addition to promoting planned pregnancies, including healthy 

spacing of pregnancies, certain contraceptives have other benefits 

as well. Here are a few observations. Over 200,000 cases of ovarian 

cancer and 100,000 deaths were prevented because of the health 

benefits of contraception. Over 10 percent of infant deaths could be 

prevented if pregnancies were planned and if women had better access to family planning. Women without access to contraception 

usually are at an increased risk of unhealthy infants due to lack 

of initial prenatal care, or bear significant financial strains on their 

family if the pregnancy was unplanned or unintended. So research 

demonstrates that many women have significant financial barriers 

to accessing contraceptive coverage. 

Oral contraceptives can cost from $180 to $600 a year. In order 

to obtain a prescription, a woman needs to arrange a visit with an 

ob/gyn. Nearly one in four women with household incomes of less 

than $75,000 a year have put off gynecological care or birth control 

for financial reasons. The Center for Disease Control and Prevention named family planning as one of the 10 most important public 

health achievements of the 20th century because of its contribution 

4 

to the better health of infants, children, and women. And so these 

studies confirm that failure to cover contraceptives exposes women 

to additional health care costs as well as physical consequences of 

unintended pregnancies. 

Mr. Chairman, I close with this observation. There are many religious leaders that are completely satisfied with this approach. 

The Catholic Health Association has acknowledged that it is satisfied with the accommodation because it strikes the right balance 

between the burdens women and religious organizations would 

share in implementing the HHS ruling. 

In addition, close to 30 Catholic or religious affiliated universities 

and colleges provide plans and benefits that include contraceptives 

and family planning. Melissa Rogers, the director of the Center for 

Religion and Public Affairs at Wake Forest University Divinity 

School, chair of President Obama’s inaugural advisory council on 

faith-based neighborhood partnerships, who had previously criticized the rule, commended the revised rule saying, ‘‘it both resolves 

religious liberty concerns and respects the interests of Americans 

who would like to have these important health benefits.’’ 

And so I thank you for the additional time, and I put the rest 

of my statement in the record. Thank you. 

Mr. SMITH. Without objection, thank you, Mr. Conyers. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

It is unfortunate that in 2012 we are still debating how and when women 

can have access to birth control. Today we will engage in a discussion at how 

a nation committed to protecting individual liberty can achieve a principled and 

meaningful balance with those rights are in conflict. 

First, the President’s decision and the Administration’s action is supported by legal precedent. 

The Supreme Court’s 1990 decision in Employment Division v. Smith established 

that religious exemptions are not constitutionally required for religiously motivated 

conduct that violates a generally applicable law. 

The Court has not wavered in recognizing a woman’s right to family planning 

services, citing the right to privacy in several rulings—including Griswold v. Connecticut and Roe v. Wade—which ruled that a woman’s choice to have an abortion 

was protected as a private decision between her and her doctor. 

I believe that the President, and Department of Health and Human Services Secretary Kathleen Sebelius have crafted an reasonable and balanced 

approach that respects the rights of conscience and the right to equality 

under the law. 

The Department’s rule touches the lives of millions of women and their families 

who need the full package of preventive health care services, including contraception. While there have been many who would choose to ignore this aspect of the debate, the fact remains that the science—and the scientific recommendations required by legislation we enacted into law—demonstrates the need for women to 

have access to these services. 

Secondly, the science presented backs up the policy of the Administration—it is not just good law but good science. 

The Independent Institute of Medicine, which is part of the National Institutes 

of Health, after much study, determined that contraception is a key preventative 

health service for women. 

In addition to promoting planned pregnancies, including the healthy spacing of 

pregnancies, certain contraceptives have other benefits as well. Here are the facts: 

5 

• Over 200,000 cases of ovarian cancer and 100,000 deaths were prevented because of the health benefits of contraception; 

Over 10% of infant deaths could be prevented if pregnancies were planned and 

if women had better access to family planning; 

Women without access to contraception usually at an increased risk of 

unhealthy infants due to lack of initial prenatal care, or bear significant financial strains on their families if the pregnancy was unplanned or unintended. 

Research demonstrates that many women also have significant financial 

barriers to accessing contraceptive coverage. 

• Oral contraceptives can cost from $180—$600 per year. 

• In order to obtain a prescription, a woman needs to arrange a visit with an 

OB–GYN. Nearly one in four women with household incomes of less than 

$75,000 have put off gynecological care or birth control for financial reasons. 

The Centers for Disease Control and Prevention named family planning one of the 

ten most important public health achievements of the 20th Century because of its 

contribution to ‘‘the better health of infants, children, and women.’’ 

These studies confirm that failure to cover contraceptives exposes 

women to additional health care costs as well as physical consequences of 

unintended pregnancies. 

While this basic preventive care can be prohibitively expensive for many women, 

it imposes no financial burden on employers. 

• The National Women’s law center has cited policies that fail to provide contraceptive coverage can cost an employer 15–16% more than policies providing 

it. 

• The Congressional Budget Office reports that family planning coverage in 

public programs either saves money or results in no additional costs even in 

the short run. 

Most importantly, millions of American women are impacted by policies that single them out from receiving necessary health care. 

• American women also look at birth control as a basic element of their health 

care. Between 2006 and 2008 approximately 62% of women of childbearing 

age used contraception. 

• An estimated 11.2 million women of childbearing age are currently using the 

pill. 

• A report in the Washington Post cited that nearly 99% of women and 98% 

of Catholic women have used contraception. 

So we should keep the health care needs and the rights of the vast majority of 

American women who need and choose to use this vital health care service. 

The modified rule put forward by the administration recognizes the importance of these health care services, but it also respect the rights of conscience protected by the First Amendment, and by the Religious Freedom 

Restoration Act. 

It does so by ensuring that houses of worship and allied institutions will be exempt from the rule, and that non-profit organizations with religious exemptions will 

not have to purchase or in any way pay for contraceptive coverage. Women will still 

receive the services if they want them, but objecting religious institutions of all 

types will not have to participate in any way. 

It is, a solomonic solution to a difficult problem. It balances competing rights in 

a respectful manner. 

Lastly, While some religious objectors are not satisfied with this approach, many are. 

• The Catholic Health Association has acknowledge that it is satisfied with the 

accommodation, because it strikes the right balance between the burdens 

6 

women and religious organizations would share in implementing the HHS 

rule. 

• In addition, close to 30 Catholic or religious affiliated university and colleges 

provide plans and benefits that include contraceptives and family planning. 

• Melissa Rogers the Director of the Center for Religion and Public Affairs at 

Wake Forest University Divinity School and the chair of President Obama’s 

inaugural Advisory Council on Faith-Based and Neighborhood Partnerships, 

who had previously criticized the rule, commended the revised rule saying ‘‘it 

both resolves the religious liberty concerns and respects the interests of 

Americans who would like to have these important health benefits. President 

Obama and his administration deserve great credit for implementing a solution that honors free exercise rights and fairness. I deeply appreciate the fact 

that the White House has taken the religious community’s concerns so seriously.’’ 

I look forward to the testimony of our witnesses, and I look forward to a vigorous 

discussion of our efforts to ensure that our values of protecting women’s health and 

promoting and protecting the free exercise of religion are advanced. 

Thank you Mr. Chairman. 

Mr. SMITH. The gentleman from Arizona, the Chairman of the 

Constitution Subcommittee, Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. Mr. Chairman, 

Thomas Jefferson proclaimed that ‘‘no provision in our Constitution 

ought to be dearer to a man than that which protects the rights 

of conscience against the enterprises of civil authority.’’ James 

Madison put it even more succinctly, declaring that, ‘‘conscience is 

the most sacred of all property.’’ 

This is why America has had a long history of providing consciousness objections to religious believers. From exempting those 

who have religious objections to war from combat, to providing exemptions to religious believers who could not work on certain days 

of the week, to giving religious exemptions to corrections workers 

who could not be involved in capital punishment, Americans traditionally have not been forced by their government to violate their 

sacred religious beliefs. 

Yet despite this Nation’s strong heritage of protecting Americans’ 

rights of conscience and religious freedom, the Obama administration has decided to coerce religious institutions into paying for 

services that directly violate the teachings of their faith. Under the 

cloak of promoting women’s health, the Obama administration has 

pronounced that while a religious group may teach on Sunday that 

contraception and abortion are wrong, on Monday they must pay 

for their employees to be educated, counseled, and provided with 

contraceptive drugs, devices, and abortion procedures in direct violation of those teachings. 

Mr. Chairman, this coercion of religious groups circumvents a 

bedrock principle of our Constitution, our history, and our basic liberty, and it is an attack on the religious freedom of all Americans, 

no matter what their religious beliefs are on abortion or contraceptives. 

If you hold anything sacred, you should be frightened by the complete lack of respect for religious freedom and rights of conscience 

the Obama administration has shown in promulgating this mandate. As the editorial board of USA Today commented, ‘‘In drawing 

7 

up the rules that will govern healthcare reform, the Obama administration didn’t just cross that line, it galloped over it, requiring 

employers affiliated with the Catholic Church to include free birth 

control in their health insurance plans. That is contrary to both 

Catholic doctrine and constitutional guarantees of religious freedom.’’ 

Now, some have argued that the Obama administration has accommodated religion by providing an exemption for certain religious groups. That exemption, however, is so narrow that the ministries of neither Jesus Christ nor Mother Teresa would have qualified for it. 

Others have argued that the mandate does not infringe on religious beliefs because it will be the insurance companies and not the 

religious organizations that pay for the mandated services. But unless the Obama administration has discovered a way to suspend 

the laws of economics and mathematics, this so-called accommodation is nothing more than an accounting gimmick. 

The Obama administration’s failure to provide a meaningful religious accommodation with this mandate is not only a slap in the 

face to millions of Americans of faith, it is patently unconstitutional. It violates both the Religious Freedom Restoration Act and 

the First Amendment. 

First, the mandate is not neutral, is not a neutral law of general 

applicability because some groups, both secular and religious, are 

given exemptions while certain religious groups are not. Second, 

given the widespread availability of contraceptive services and the 

far less restrictive ways to increase their availability, the mandate 

fails both the compelling government interest and the least restrictive means tests that apply to government actions that substantially burden religion. 

Mr. Chairman, the arrogance of this Administration is breathtaking, and I am hopeful that the courts will see this mandate for 

what it is, a blatant, unconstitutional abuse of the first magnitude. 

But Americans shouldn’t have to resort to the courts to preserve 

such clearly held religious freedoms. It is the obligation of the Executive and the Congress, who swear an oath to uphold the Constitution, to protect these freedoms. 

Unfortunately the Obama administration has callously and flagrantly trampled under foot this sacred obligation, and I would just 

remind the people under my voice, if this Administration will do 

something this dramatic in an election year, if they get reelected, 

you ain’t seen nothing yet. And with that, I yield back. 

Mr. SMITH. Thank you, Mr. Franks. 

The gentleman from New York, Mr. Nadler, is recognized. 

Mr. NADLER. Thank you, Mr. Chairman. The title of this hearing, 

Executive Overreach: The HHS Mandate Versus Religious Liberty, 

suggests that we need only consider the religious liberty of those 

who object to coverage for contraception. It does not even hint at 

the significant interests of the government or the millions of 

women and families who seek access to safe and affordable contraceptive services. Neither Congress nor the executive branch is free 

to ignore these interests, and far from waging war on the Constitution or/and religion, President Obama and his Administration have 

sought a sensible balance that ensures that all women have access 

8 

to free contraceptive services and honors the religious beliefs of 

those who object to providing or paying for these services. A sensible balance is exactly what is required by our laws and Constitution. 

As one of the architects of the Religious Freedom Restoration Act 

of 1993, or RFRA, I worked hard to overturn the Supreme Court’s 

decision in Employment Division v. Smith. As we explained in our 

findings to RFRA, the core principle to be codified by restoring the 

compelling interest test for laws that substantially burden religion 

was the need for sensible balances between religious liberty and 

competing prior government interests. RFRA was supported by a 

broad coalition, ranging from the ACLU to the National Association 

of Evangelicals, and both Chambers of Congress passed it with 

overwhelming bipartisan majorities. 

The Constitution also demands a sensible balance. Where, as is 

the case here, the government chooses to accommodate religious beliefs even if doing so is not constitutionally required, the government must also take into account the interests of those who do not 

benefit from the accommodation. 

In striking down Connecticut’s law allowing Sabbath observers to 

take their Saturday, their Sabbath day off work, in the state of 

Thornton v. Caldor, for example, the Supreme Court found that because, ‘‘the statute takes no account of the convenience or interests 

of the employer or those of other employees who do not observe a 

Sabbath,’’ it constitutes, ‘‘unyielding weighting, unquote, in favor of 

religion that violates the First Amendment. In the 2005 case of 

Cutter v. Wilkinson, the Court made clear that an accommodation 

for religion must be measured so that it does not override other significant interests.’’ 

In addressing the exact question at issue here, the California Supreme Court upheld application of a contraceptive coverage requirement, finding that exempting religiously affiliated charities 

would, ‘‘increase the number of women affected by discrimination 

in the provision of healthcare benefits,’’ whose interests could not 

be overlooked. As the California Supreme Court explained, ‘‘strongly enhancing the State’s interest is the circumstance that any exemption from the State contraceptive coverage requirement sacrifices the affected women’s interests in receiving equitable treatment with regard to health benefits.’’ 

The Administration’s policy is an attempt to balance competing 

rights, and in seeking a sensible balance at the Federal level, the 

Administration understandably looked to California’s experience 

and modeled its initial 2011 exemption for religious employers on 

laws like California’s and New York’s, both of which have been 

upheld as constitutional by their States’ highest courts. 

This original exemption for religious employers was criticized as 

too narrow because it would not include religiously affiliated hospitals, universities, and charities that serve and employ persons 

from a variety of faiths, many of whom may not share the religious 

beliefs of their employers. 

Responding to these concerns, President Obama and Secretary of 

HHS Kathleen Sebelius crafted an additional accommodation that 

establishes a safe harbor for a year until August 2013. During this 

time a final rule will be promulgated that still ensures that all 

9 

women have access to contraceptive services. But objecting religious organizations will not have to provide for or pay for these 

benefits. Instead, insurance companies will contact employees and 

offer these benefits to them directly and free of charge. The Administration said that this is workable because covering contraception 

saves money and that insurance companies will not be permitted 

to increase premiums of objecting employers to cover the cost of 

contraceptive services. 

Many who objected to the original rule as too narrow support 

this approach. For example, the Catholic Health Association said it 

was very pleased with the White House announcement and it 

looked forward to reviewing the specifics. The Association of Jesuit 

Colleges and Universities, ‘‘commended the Obama administration 

for its willingness to work with us on moving toward a solution and 

look forward to working out the details of these new regulations 

with the White House.’’ 

Others are not satisfied. The United States Conference of Catholic Bishops, for example, initially called the plan a step in the right 

direction, but later condemned it, taking the position that the only 

complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services. 

Some Members of Congress have also called for rescission of the 

requirement or, in the alternative, for legislation that would exempt any employer or insurer from providing any services to which 

they object on religious and moral grounds. 

These proposals, like H.R. 1179, the ‘‘Respect for Rights of Conscience’’ Act, cause grave constitutional concerns by granting an 

unyielding weight to the interest of religious objectors at the expense of all others. Where in these demands for complete removal 

of or exemption from the requirement for preventive contraceptive 

services is there any acknowledgment of protection of the religious 

health and economic rights of women or the significant public 

health interest that the government shares in improving the wellbeing and health of women and their families? 

Ninety-nine percent of all women who are sexually active in their 

lifetimes use contraceptives and 381⁄2 million women are currently 

using some method of contraception. The interest of these women 

and their families cannot be ignored or set aside. 

We are likely to hear that requiring access to cost-free contraceptive services and making those services part of routine preventive 

care is not necessary, women can easily get contraception at a local 

clinic or over the Internet, that care is inexpensive and removing 

the requirement of coverage will not really harm women or their 

families. Most of the people making these claims are not public 

health experts, they are not doctors, they are not Sandra Fluke’s 

friend at Georgetown Law who cannot afford the out-of-pocket costs 

required to continue prescription birth control to stop cysts from 

growing on her ovaries. Without this medicine she lost an ovary. 

Today we have a doctrine of public health expert with us. Dr. 

Rosenstock is the dean of the public—School of Public Health at 

UCLA. She also chaired the committee on preventive services for 

women, convened at HHS request by the Institute of Medicine, to 

study and make recommendations regarding preventive services 

that should be provided for women at no cost, as is required by 

10 

Congress in the Affordable Care Act. HHS accepted all of the IOM’s 

eight recommendations, one of which was to include FDA-approved 

contraceptive service as part of routine preventive care for women 

because of the tremendous benefits that family planning provides 

women and their families. I look forward to hearing from her about 

this decision. 

I also urge all of my colleagues to set partisan politics aside for 

a moment to consider carefully the accommodations that the Administration has proposed. I believe the Secretary and the President can and will achieve a workable balance. They already have 

gone beyond what I believe is required as a purely legal matter to 

accommodate religious belief, although I support their laudable 

work to ensure that any burden on religion will be minimal, which 

the proposed rule ensures by removing objecting employers from 

the equation. 

I fear that those who continue to object and do so despite the fact 

that their right to decline to participate in the provision of preventive contraceptive services has been respected, really seek to block 

women’s access to contraceptive services altogether, but the Constitution does not grant them that right and in fact guards against 

that risk. As Judge Learned Hand once explained, the First 

Amendment, ‘‘gives no one the right to insist that in pursuit of 

their own interests others must conform their conduct to his own 

religious necessities.’’ 

Sacrificing the rights and needs of women and of the public 

health by removing the requirement for these critical services or 

broadly exempting anyone who might object is neither wise nor is 

it constitutional. It would, in fact, constitute enabling one group to 

impose their religious views on others who do not share them, and 

that is not permitted by our Constitution. 

With that, I yield back the balance of my time. 

Mr. SMITH. Thank you, Mr. Nadler. 

Our first witness is Bishop William Lori, the Bishop of Bridgeport, Connecticut, and the chair of the U.S. Conference of Catholic 

Bishops Committee on Religious Liberty. Bishop Lori was ordained 

to the priesthood in 1977, became Auxiliary Bishop of Washington, 

D.C. in 1995, and was installed as the Bishop of Bridgeport in 

2001. Bishop Lori is chairman of the board of trustees of Sacred 

Heart University and is the past chairman of the board of trustees 

of the Catholic University of America. 

Our second witness is Asma Uddin, an attorney with the Becket 

Fund for Religious Liberty. She is the primary attorney for the 

fund’s Legal Training Institute, which is dedicated to training lawyers, judges, religious leaders, journalists, and students around the 

world in religious freedom law and principles. Prior to joining the 

Becket Fund, Ms. Uddin was an attorney with two prestigious national law firms. She is a graduate of the University of Chicago 

Law School where she was a member of the University of Chicago 

Law Review. 

Our third witness is Dr. Linda Rosenstock, dean of the School of 

Public Health at the University of California, Los Angeles, and 

chair of the Preventive Services for Women Committee of the Institute of Medicine. Prior to going to UCLA in 2000, Dr. Rosenstock 

served for nearly 7 years as the director of the National Institute 

11 

for Occupational Safety and Health. Dr. Rosenstock received her 

medical degree and a master’s degree in public health from the 

Johns Hopkins University. 

Our final witness is Jeanne Monahan, the director of the Center 

for Human Dignity at the Family Research Council. Prior to joining 

Family Research Council, she worked for the Department of Health 

and Human Services, where she focused on subjects including global health policy and domestic and international healthcare issues. 

Ms. Monahan is an alumnus of James Madison University and has 

a master’s degree from the Pope John Paul II Institute for Studies 

on Marriage and Family. 

We welcome you all and Look forward to your 5 minute testimony. Bishop Lori, we will begin with you. 

TESTIMONY OF THE MOST REVEREND WILLIAM LORI, CHAIRMAN, AD HOC COMMITTEE ON RELIGIOUS LIBERTY, UNITED 

STATES CONFERENCE OF CATHOLIC BISHOPS 

Bishop LORI. Mr. Chairman and Members of the Committee, 

thank you for the opportunity to testify today. I would like to discuss the various absurd consequences that have flowed from the 

HHS mandate. 

First, ‘‘without change’’ suddenly means ‘‘with change.’’ On February 10, HHS finalized—as the rule itself says four times, ‘‘without change’’—the interim final rule imposing the mandate initially 

announced last August. Despite this, a surprising number of those 

who objected vociferously to the initial rule were suddenly and 

completely satisfied. The reason for this confusion is that the finalized rule also announced what it described as an ‘‘accommodation.’’ 

But this ‘‘accommodation’’ would not change the scope of the mandate and its exemption, which, as noted above, have now been finalized as is. Instead, it would take the form of additional regulations whose precise contours are yet unknown and may not issue 

until August 2013. 

In sum, for present purposes, the ‘‘accommodation’’ is just the legally unenforceable promise to alter the way the mandate would 

still apply to those who are still not exempt from it. Moreover, the 

promised alteration appears logically impossible, for reasons detailed in my written testimony. Meanwhile, the mandate itself is 

still finalized without change, excluding in advance any expansion 

of the religious employer exemption. Somehow this situation of no 

change is heralded as great change, for which the Administration 

has been widely congratulated. 

Second, ‘‘choice’’ suddenly means ‘‘force.’’ Let me quote from a letter I issued in my own diocese: ‘‘HHS announced last week that almost all employers, including Catholic employers, will be forced to 

offer their employees health coverage that includes sterilization, 

abortion-inducing drugs, and contraception. Almost all health insurers will be forced to include those ‘services’ in the health policies 

they write. And almost all individuals will be forced to buy that 

coverage as part of their policies.’’ 

I emphasize the word ‘‘force’’ precisely because it is one of the 

key differences between a mere dispute over reproductive health 

policy and a dispute over religious freedom. 

12 

This is not a matter of whether contraception may be prohibited 

by the government, not a matter of whether contraception may be 

supported by the government. Instead, it is a matter of whether religious people and institutions may be forced by the government to 

provide coverage for contraception and sterilization even if that violates their religious beliefs. And it is not a matter of repackaging 

or framing this as a religious freedom dispute. It is a matter of acknowledging the basic fact that government is forcing religious peoples and groups to do something that violates their consciences. 

Third, liberalism has suddenly become illiberal. When the mandate was first proposed in August and then reiterated in January, 

people and groups of all political stripes—left, right, and center— 

came forward to join us in opposing this. But now, the mere prospect of the accommodation described above has caused some simply 

to abandon their prior objection. In so doing they undermine the 

basic American values they would otherwise espouse. 

Only in the post-mandate world might it be considered ‘‘liberal’’ 

for the government to coerce people into violating their religious 

rights, to justify that coercion based on the minority status of those 

beliefs, to intrude into the internal affairs of religious organizations, to crush religious diversity in the private sector, and to 

incentivize religious groups to serve fewer of the needy. 

Fourth, and finally, sterilization and contraception and 

abortifacients are essential, but ‘‘essential health benefits’’ are not. 

In December HHS acted to define the ‘‘essential health benefits’’ 

mandate, which encompasses categories of services so important 

that they must be included in health plans—things like prescription drugs and hospitalization. But notably, HHS handed off to 

each State the decision of what particular benefits should be mandated. 

Thus, although HHS will brook no dissent regarding whether 

sterilization, contraception, or abortifacients must be covered as 

‘‘preventive services,’’ HHS is essentially indifferent regarding what 

is or is not mandated as an essential health benefit. As a result, 

genuinely beneficial items may well be omitted from coverage State 

by State. By contrast, States have no such discretion with regard 

to abortifacients, sterilization, and contraception. 

In conclusion, the Respect for Rights of Conscience Act, H.R. 

1179, would help bring the world aright again. This legislation 

would not expand religious freedom beyond its present limits but 

simply retain Americans’ longstanding freedom not to be forced by 

the Federal Government to violate their convictions. 

Thank you very much. 

Mr. SMITH. Thank you, Bishop Lori. 

[The prepared statement of Bishop Lori follows:] 

13 

Prepared Statement of the Most Reverend William E. Lori, Bishop of 

Bridgeport, on behalf of the United States Conference of Catholic Bishops 


Lori-1.eps
14 


Lori-2.eps
15 


Lori-3.eps
16 


Lori-4.eps
17 


Lori-5.eps
18 


Lori-6.eps
19 

Mr. SMITH. Mrs. Uddin. 

TESTIMONY OF ASMA T. UDDIN, ATTORNEY, 

THE BECKET FUND FOR RELIGIOUS LIBERTY 

Mrs. UDDIN. Mr. Chairman and distinguished Members of the 

Committee, allow me to thank you for the opportunity to be with 

you today to discuss the religious liberty issues related to the HHS 

mandate. I am here today on behalf of the Becket Fund for Religious Liberty, a nonprofit, nonpartisan law firm where we work to 

defend religious liberty for people of all faiths. I would ask that my 

full remarks are submitted into the record. 

As my co-panelist from IOM will point out shortly, there are 

many important health concerns affecting women today. I am not 

here to dispute any of these claims or women’s access to them. 

Last fall the Becket Fund represented a small Lutheran school 

that the Federal Government wanted to say had no right to higher 

and fire its religious teachers. This Administration’s position was 

so extreme that the U.S. Supreme Court unanimously rejected 

their reasoning and decided in our client’s favor and in defense of 

the First Amendment. 

I am here today because this Administration has taken another 

extreme position, arguing as it did in the Hosanna-Tabor case that 

the First Amendment offers no special protections to religious employers. This unconstitutional assault on religious liberty led the 

Becket Fund to bring four lawsuits against the Federal Government. 

Two weeks ago the Administration responded to our first case on 

behalf of Belmont Abbey College, a Catholic college founded by 

Benedictine monks. We were shocked to read that they asked the 

Court to dismiss the case because of a promise to shift the cost to 

insurance companies at some point in the future. 

To add further insult to injury, last night the Administration responded to our second case on behalf of Colorado Christian University, again failing to respond to any of our client’s legitimate constitutional claims and instead asking for dismissal based on their 

promise. 

One can only imagine how the government intends to respond to 

our other clients, Eternal Word Television Network, started by 

Mother Angelica from her garage, and Ave Maria University. 

Let me be clear. None of these organizations qualify for HHS’s 

exceedingly narrow religious employer exemption nor are these organizations exempt under the Administration’s proposed compromise. 

On February 10th the President promised to develop a rule that 

would require insurers of nonprofit organizations with religious objections to pay the cost of the mandated coverage for abortion-inducing drugs, sterilization, and contraception. The press conference 

was merely a smokescreen that sadly fooled much of the American 

public who are rightly concerned by the mandate. 

For those of you who thought the President’s promise resolved 

the problems in the mandate, consider this: 

First, it is unclear when and if the President will issue the promised rule. 

20 

Second, if and when such a new rule is introduced, it is unlikely 

that insurance companies will offer these services for free when 

they can simply spread the cost through higher insurance premiums. 

Third, hundreds if not thousands of religious organizations have 

self-insured plans where the religious organization itself is the insurance company. 

Fourth, the new proposal does nothing to address the concerns 

of for-profit organizations and individuals with religious objections. 

At this point, the rule published by the President following his 

speech is exactly the same as the one issued in August which our 

cases are based upon. Nothing has changed but the promise of a 

potential shift to insurers at some point in the future which, as I 

have explained, would be problematic for a number of other reasons. That is why our clients remain concerned. This mandate is 

simply unconstitutional. It violates the free exercise clause, establishment clause, free speech clause, and the Religious Freedom 

Restoration Act. In each of our lawsuits we claim that the mandate 

is not neutral and generally applicable, as required by law, because 

it specifically discriminates against conscientious objectors while 

many other types of groups get exemptions. 

Second, we claim the mandate imposes a substantial burden on 

our clients. In fact, it is so severe that our clients will be forced 

to stop providing health insurance altogether and pay penalties up 

to $620,000 per year for noncompliance. 

Third, the mandate intentionally discriminates against the religious beliefs of our clients since the exemption is so narrowly defined that, as many have stated, not even Jesus’s ministry would 

apply. 

Fourth, the mandate compels our clients to provide counseling 

and education on subjects that contradict the religious beliefs their 

institution stands for. 

Finally, despite the severe burdens on our clients’ constitutional 

rights, the government in its response last night continues to provide no compelling interest that justifies forcing monks and nuns 

to hand out abortion drugs. Our clients are acting because of what 

is being asked for rather than who is doing the asking. They do not 

seek to prevent women from accessing these abortion drugs, but 

they do object to having to provide them against their conscience. 

Women, too, seek the freedoms to live in accordance with their 

sincerely held religious beliefs. Religious freedom is a right enjoyed 

by everyone, and it is just as much in women’s interests to protect 

that right as it is in men’s. As a Muslim American woman and an 

academic, I have spent my career fighting for women’s and minorities’ rights, and the fact that I must be here today to explain why 

our constitutional rights exist is extremely offensive to me personally. Thank you. 

Mr. SMITH. Thank you, Mrs. Uddin. 

[The prepared statement of Ms. Uddin follows:] 

21 

1The Affordable Care Act is actually two laws: the Patient Protection and Affordable Care 

Act, Pub. L. 111–148 (March 23, 2010), and the Health Care and Education Reconciliation Act, 

Pub. L. 111–152 (March 30, 2010). 2 42 U.S.C. § 300gg-13(a)(4). 

3 In developing its guidelines, IOM invited a select number of groups to make presentations 

on the preventive care that should be mandated by all health plans. These were the Institute, 

the American Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the National 

Women’s Law Center, National Women’s Health Network, Planned Parenthood Federation of 

America, and Sara Rosenbaum. No religious groups or other groups that oppose governmentmandated coverage of contraception, sterilization, abortion, and related education and counseling were among the invited presenters. 4 Institute of Medicine, Clinical Preventive Services for Women: Closing the Gaps (July 19, 

2011). 

Prepared Statement of Asma T. Uddin, Attorney, 

The Becket Fund for Religious Liberty 

Mr. Chairman and distinguished members of the Committee, allow me to thank 

you for the invitation and opportunity to be with you today to offer testimony on 

the religious liberty issues related to the recent Department of Health and Human 

Services mandate on women’s preventive services. 

I am here today representing the Becket Fund for Religious Liberty, where I work 

as an attorney specializing in domestic and international religious freedom. I will 

summarize my remarks and ask that my full written testimony be entered into the 

record. 

I. INTRODUCTION

Under the Affordable Care Act of 2010 (‘‘the ACA’’),1 all employer health care 

plans must provide—at no cost to the employee—certain preventive services for 

women.2 The inclusion of contraceptives—including abortion-causing contraceptives—in this mandated coverage has caused a public uproar, with religious groups 

opposed to contraception and/or abortion decrying the violation of their religious 

freedom. Supporters of the mandate, in contrast, see this as a civil rights issue— 

specifically, one involving women’s rights—that should not be trumped by religious 

concerns. At the heart of this position, however, lies a profound misunderstanding 

about the nature of religion and the scope of constitutional protections for religious 

liberty. 

A. Background 

One provision of the ACA, signed into law by President Barack Obama on March 

23, 2010, mandates that health plans ‘‘provide coverage for and shall not impose any 

cost sharing requirements for . . . with respect to women, such additional preventive care and screenings . . . as provided for in comprehensive guidelines supported 

by the Health Resources and Services Administration’’ (‘‘Mandate’’). However, when 

the Department of Health and Human Services (‘‘HHS’’) published an interim final 

rule on July 19, 2010, it had not yet defined ‘‘contraceptive preventative services for 

women’’; instead, it delegated that decision to the Health Resources and Services 

Administration (‘‘HRSA’’), a division of HHS. HRSA, in turn, directed a private policy organization, the Institute of Medicine (‘‘IOM’’), to suggest a list of recommended 

guidelines describing which preventive drugs, procedures, and services should be 

covered by all health plans.3

Simultaneously, HHS also accepted public comments to the 2010 interim final 

rule until September 17, 2010. A number of groups filed comments warning of the 

potential conscience implications of requiring religious individuals and groups to pay 

for certain kinds of health care, including contraception, sterilization, and abortion. 

Despite the stated concerns of these religious entities, on July 19, 2011—one year 

after the first interim final rule was published—the IOM issued its recommendation 

that preventive services include well-woman visits; screening for gestational diabetes; human papillomavirus (HPV) DNA testing for women 30 years and older; sexually-transmitted infection counseling; human immunodeficiency virus (HIV) screening and counseling; FDA-approved contraception methods and contraceptive counseling; breastfeeding support, supplies, and counseling; and domestic violence 

screening and counseling.4 FDA-approved contraceptive methods include birth-control pills; prescription contraceptive devices, including IUDs; Plan B, also known as 

the ‘‘morning-after pill’’; and ulipristal, also known as ‘‘ella’’ or the ‘‘week-after pill’’; 

and other drugs, devices, and procedures. 

22 

5See http://www.hrsa.gov/womensguidelines (last visited February 11, 2012). 6 Until now, federal policy has generally protected the conscience rights of religious institutions and individuals in the health care sector. For example, for 25 years, Congress has protected religious institutions from discrimination (based on their adherence to natural family 

planning) in foreign aid grant applications. For 12 years, Congress has both exempted religious 

health plans from the contraception mandate in the Federal Employees’ Health Benefit Program 

and protected individuals covered under other health plans from discrimination based on their 

refusal to dispense contraception due to religious belief. 

The HHS mandate is not only unprecedented in federal law, but also broader in scope and narrower in its exemption than all of the 28 State’s comparable laws. Almost half the States do 

not have a state contraception mandate at all, so there is no need for an exemption. Of the 

States that have some sort of state contraception mandate (all less sweeping than the federal 

one here), 19 provide an exemption. Of those 19 States without an exemption, only three (California, New York, and Oregon) define the exemption nearly as narrowly as the federal one, although the federal exemption is still worse because of the regulation’s discretionary language 

that the government ‘‘may’’ grant an exemption. Moreover, religious organizations in States with 

a mandate—even those where there is no express exemption—may opt out by simply dropping 

prescription drug coverage or offering self-insured plans, which are governed by federal ERISA 

law rather than state law. The federal mandate permits none of these alternatives, and therefore is less protective of religious liberty than any of the States’ policies. 7 76 Fed. Reg. 46623 (Aug. 3, 2011). 

8 76 Fed. Reg. 46626 (Aug. 3, 2011). 

9The only other exemption available under the ACA is for ‘‘grandfathered’’ plans. However, 

here too the law is terribly misleading. Under the new regulations, any one of a number of 

changes, even if immaterial, will cause a plan to lose its grandfathered status. Thus, although 

President Obama promised throughout the health reform debate that ‘‘if you like your health 

plan, you can keep it,’’ religious organizations will soon be forced to abandon health plans that 

On August 1, 2011, thirteen days after the IOM issued its recommendations 

HRSA issued guidelines adopting the IOM recommendations.5 These guidelines 

make clear that the HHS Mandate includes not just FDA approved contraceptive 

methods and sterilization procedures, but also ‘‘patient education and counseling’’ 

concerning those methods. On the same day that HRSA adopted the IOM regulations, HHS issued an amended interim final rule, adding an exemption from the 

contraceptive Mandate for ‘‘religious employers.’’ 

Separate from the issue of contraception, as mentioned above, included in ‘‘FDAapproved contraceptive methods’’ are the drugs Plan B and ella. Many religious individuals and organizations that have conscientious objections to abortion object to the 

use of Plan B and ella because they believe, and scientific evidence supports their 

belief, that these drugs constitute abortifacients. That is, Plan B and ella can prevent a human embryo, which these religious groups understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus thereby causing the death of the embryo. 

It was precisely these sorts of concerns that were repeatedly articulated by religious groups in the more than 200,000 public comments submitted in response to 

the amended interim rule. HHS created an exceedingly narrow religious exemption—one that is narrower than any other religious exemption in federal law.6

Under the regulations, the only organizations religious enough to receive an exemption are those that are not already exempt from the ACA for having fewer than fifty 

employees and meet all of the following criteria: 

(1) its purpose is the inculcation of religious values, 

(2) it employs ‘‘primarily’’ persons who share its religious tenets; 

(3) it serves ‘‘primarily’’ persons who share its religious tenets; and also 

(4) it qualifies under the IRS code as a church or religious order.7

This exemption is of little solace to religious employers for two primary reasons. 

First, because the regulation merely states that HRSA ‘‘may establish exemptions,’’ 8

it is possible that the federal government will decide not to provide any religious 

exemptions at all. 

Second, HRSA has this discretion with respect to only a vanishingly small class 

of religious employers. Under this definition, most, if not all, religious colleges or 

universities would not qualify for any exemption, because these institutions exist 

not just to inculcate religious values, but also to teach students. The nature of many 

religious institutions is in fact to serve those outside their community, conditioning 

their help on a person’s need rather than their chosen faith. As many Christian objectors to the Mandate have made clear, not even Jesus’ ministry would qualify for 

the exemption as he served both Christians and non-Christians. No homeless shelter, soup kitchen, or adoption agency would qualify, because these organizations 

exist to serve anyone in need, not just those that profess a certain religious creed.9

23 

reflect their deepest convictions unless they: (1) stopped modifying their health care plans nearly 

a year and a half before the HHS mandate was announced; and (2) henceforth avoid any triggering condition. These conditions, of course, may have already been violated, will become increasingly difficult to meet, and in any case are unacceptable. 

And few, if any, of these organizations qualify as a church or religious order under 

the tax code. 

The Obama Administration’s ‘‘Accommodations’’ 

Given the Mandate’s lack of protection for religious liberty, religious organizations 

and individuals voiced their concerns vociferously. In an effort to respond to these 

concerns, on January 20, 2012, the Administration announced it would not expand 

the exemption to protect religious schools, colleges, hospitals, and charitable service 

organizations, but it would give them one extra year to comply with the Mandate. 

This, of course, was no accommodation at all, as it ignored the underlying religious 

liberty concerns. Also, the one year extension applied only to employee health plans, 

not student health plans. In essence, religious organizations still had no choice but 

to comply with the Mandate or drop their health insurance coverage altogether and 

pay the resulting hefty fines. 

This ‘‘accommodation’’ was of course deemed insufficient by religious objectors to 

the Mandate, as it did nothing to address the substance of their concerns. Indeed, 

the blatant disregard for the First Amendment rights at issue created a firestorm 

of opposition from across the political and religious spectrum. Thus, within three 

weeks, on February 10, 2012, the President held a press conference to announce a 

second compromise. But this compromise also did not change any of the provisions 

of the August 2011 Mandate, nor did it make any changes to the Mandate’s narrow 

religious exemptions. 

Instead, for non-exempt religious organizations, the president made two promises. 

First, he reiterated that enforcement of the Mandate on employee health plans 

would be delayed by one extra year. Second, the president promised that the administration would work to develop—at some unspecified time in the future—a rule that 

would require insurers of non-profit organizations with religious objections to pay 

the costs of the mandated coverage for abortion-inducing drugs, sterilization, and 

contraception. 

The problems with this proffered compromise are many. First, it is unlikely that 

insurance companies will offer these services for free; religious employers would still 

ultimately be paying for these services against their conscience, with the costs 

spread through higher insurance premiums for their employees. Although some 

argue that insurance companies would cover these services for free because it helps 

their bottom line, such an argument is tenuous at best—after all, if that were the 

case, insurance companies would have arguably already provided contraception for 

free. Moreover, the provision of these so-called free contraceptives still depends on 

the religious employer purchasing insurance for its employees. While they might not 

be paying for the drugs, they are still facilitating their use by employees. Religious 

organizations should not be forced to turn a blind eye to the inclusion of something 

in their insurance plan that violates their conscience. 

Second, hundreds if not thousands of religious organizations have self-insured 

plans, where the religious organization itself is the ‘‘insurance company.’’ Although 

the preamble to the final rule does state an intent to achieve the same ‘‘goals’’ for 

self-insured religious organizations, it is unclear how the proposed compromise 

would resolve the concerns of these entities, 

Third, the new proposal does nothing to address the concerns of for-profit organizations and individuals with religious objections. Rather, the proposed compromise 

simply underscores how the government’s policy discriminates between various categories of religious groups and individuals, with churches receiving the greatest protection, non-profit religious organizations potentially receiving a lower level of protection, and individuals and for-profit entities receiving no protection at all. This 

picking and choosing of who is entitled to First Amendment protections is unconstitutional. 

If an employer with moral objections to the HHS Mandate is not covered by the 

Administration’s compromise solution, the employers final alternative is to stop providing health care benefits altogether. But this too places religious employers in an 

unacceptable double bind: either they must pay for contraception, sterilization, and 

abortion-inducing drugs, or they must stop providing their employees with health 

care and pay a stiff civil penalty. The first option forces religious employers to violate their moral convictions. The second option forces them to pay steep fines for 

exercising their religion and creates enormous hardships for their employees, some 

24 

10See Nat’l Fed’n of Indep. Business, The Free Rider Provision: A One-Page Primer, available 

at http://www.nfib.com/Portals/0/PDF/AllUsers/Free%20Rider%​20Provision.pdf. 11See A statement by U.S. Department of Health and Human Services Secretary Kathleen 

Sebelius. http://www.hhs.gov/news/press/2012pres/01/20120120a.html. 

of whom have limited means to purchase health insurance on their own. And the 

burden does not end there. Without employer health plans, many religious institutions would find themselves at a serious competitive disadvantage vis-a`-vis other 

employers. Some religious institutions could find that without a group health plan, 

they could not attract sufficient staff and would be forced to close their operations 

altogether. 

The fines imposed on religious employers that refuse to violate their consciences 

are significant. For example, a charitable organization with 100 employees will have 

to pay the federal government $140,000 per year for the ‘‘privilege’’ of not underwriting medical services it believes are immoral.10

B. Legal Claims 

Given these coercive burdens on the religious freedom of organizations and individuals that hold religious beliefs against contraception and/or abortion, the Becket 

Fund for Religious Liberty has brought several lawsuits. The lawsuits, each of 

which make the same claims, are on behalf of (1) Belmont Abbey College (BAC), a 

Catholic liberal arts college founded by Benedictine monks; (2) Colorado Christian 

University (CCU), an interdenominational Christian college; (3) Eternal Word Television Network (EWTN), a television network that serves to spread Catholic teachings; and (4) Ave Maria University, a Catholic University dedicated to transmitting 

authentic Catholic values to students. For failing to comply by the Mandate, BAC 

would pay approximately $340,000 annually, CCU would pay $500,000; EWTN 

would pay $620,000; and Ave Maria close to $340,000. 

These lawsuits challenge the government Mandate as a violation of the First 

Amendment of the U.S. Constitution, the Religious Freedom Restoration Act 

(RFRA), and the Administrative Procedures Act (APA). The religious freedom claims 

turn on the fact that the burden placed on these organizations is not justified, as 

is required by law, by a compelling government interest that is narrowly tailored 

to serve that interest. There is also a free exercise claim of intentional discrimination because the Mandate protects certain religions and religious groups, such as 

those that serve and employ members of their own faith, while penalizing other religions. This sort of discrimination also raises Establishment Clause issues as it prefers some denominations to others and places a selective burden on the plaintiffs. 

The lawsuits seek a declaration from the court that the Mandate violates the First 

Amendment, RFRA, and the APA. They also seek an order prohibiting the government from enforcing the Mandate against our clients and any other religious group 

that cannot provide access to these drugs and services because of their religious convictions. 

Thus far, the Administration has responded to only one of the four lawsuits, and 

fails to address in its brief any of our client’s constitutional claims. Instead, it calls 

on the court to dismiss the case altogether in light of their ‘‘promise’’ to pass the 

costs onto insurance companies. As I’ve already articulated, this is not a valid solution for our clients’ legitimate claims. 

II. THE CONTRACEPTION MANDATE AND WOMEN’S RIGHTS

Some have framed the controversy surrounding the Mandate as a women’s rights 

issue. At the outset, the point must be made that our clients are acting because of 

what is being asked for (an act that violates their deeply held beliefs), rather than 

who is doing the asking. That is, religious organizations are not objecting to the 

Mandate because it is targeted toward preventive care for women; rather, they object to paying for, or providing access to, contraception, sterilization, and/or abortion-inducing drugs, regardless of gender. Indeed, the relevant employee might be 

male, with a female dependent. 

Moreover, including a robust exemption protecting the deeply held religious beliefs of those who oppose contraception and abortion would not harm women or 

women’s health. Access to these contraceptives is widespread: Nine out of ten employer-based insurance plans in the United States already cover contraception. The 

government admits these services are widely available in ‘‘community health centers, public clinics, and hospitals with income-based support.’’ 11 In fact, the federal 

government already spends hundreds of millions of dollars each year funding free 

or nearly free family planning services under its Title X program. Therefore, the 

issue is not really about access to contraception but rather about who pays for it. 

25 

12See Public Policy Polling, http://www.coalitiontoprotectwomenshealth.org/wp-content/ 

uploads/2012/02/catholicslandlbirthlcontrollbenefit.pdf 

Finally, one of the issues that is consistently overlooked when the issue is framed 

as ‘‘women’s rights versus religious freedom’’ is that women, too, seek the freedom 

to live in accordance with their sincerely held religious beliefs. Not all women agree 

with the Mandate; in fact, 41% of Catholic women do not support the Mandate.12

Religious freedom is a right enjoyed by everyone, men and women, and it is just 

as much in women’s interest to protect that right as it is in men’s. As a female 

member of religious minority, I hold this right to religious freedom particularly 

dear, as, for example, a Muslim woman’s right to dress as she pleases is restricted 

by many governments across the world. 

IV. CONCLUSION: LOOKING FORWARD

As it turns out, this conflict is entirely unnecessary. A robust exemption from the 

HHS Mandate would be a workable way for the federal government to advance both 

its interest in women’s health and its commitment to respecting the legitimate autonomy and convictions of religious institutions. 

In particular, expanding the existing ‘‘religious employer’’ exemption into a ‘‘religious conviction’’ exemption would eliminate the conflict entirely. Specifically, the 

exemption should be expanded to include all individuals and organizations—whether nonprofit or for-profit—that have a sincere religious conviction prohibiting them 

from purchasing or providing access to the mandated goods and services. In addition, any limitations over how, by whom, and for whom these individuals and organizations carry out their missions should be eliminated. And finally, the exemption 

should be expanded to include effected student health plans in addition to employee 

health plans. 

These changes to the existing exemption would also help carry out the purposes 

of the Affordable Care Act by ensuring that employees and students can remain 

part of their existing healthcare plans. 

Mr. SMITH. Dr. Rosenstock. 

TESTIMONY OF LINDA ROSENSTOCK, M.D., M.P.H., DEAN, 

SCHOOL OF PUBLIC HEALTH, UNIVERSITY OF CALIFORNIA, 

LOS ANGELES 

Dr. ROSENSTOCK. Thank you. Since no one else is bothered by the 

rumbling, I will continue. Good afternoon, Mr. Chairman, and 

Members of the Committee. As mentioned, I served as chair—— 

Mr. ISSA. Ma’am, we can’t hear anything you are saying. Can you 

pull the mike close and turn it on? 

Mr. SMITH. Turn on the mike there. The rumblings, by the way, 

was the train going back and forth to the Capitol. 

Dr. ROSENSTOCK. I am from California, we worry about these 

things. 

Mr. SMITH. Not an earthquake. 

Dr. ROSENSTOCK. As mentioned, I served as chair of the Institute 

of Medicine’s Committee on Preventive Services for Women. The 

Institute of Medicine, or IOM, is the health arm of the National 

Academy of Sciences, an independent, nonprofit organization that 

provides unbiased and authoritative advice to decision-makers and 

the public. At the request of the U.S. Department of Health and 

Human Services, IOM assembled a diverse expert committee to 

identify critical gaps in preventive services for women as well as 

recommend measures that further ensure women’s health and wellbeing. The committee gathered evidence, deliberated on its findings 

and recommendations, and met five times in a 6-month period in 

order to write its report. 

26 

The report underwent, as is typical for the IOM, a rigorous independent external review prior to its release in July of last year. 

The committee recommended that eight clinical preventive services 

for women be added to the services that health plans must cover 

at no cost to patients under the Patient Protection and Affordable 

Care Act of 2010. The committee defined preventive services as 

measures, including medications, procedures, devices, tests, education and counseling, shown to improve well-being and/or decrease 

the likelihood or delay the onset of a targeted disease or condition. 

To guide its deliberation in determining gaps in preventive services not included in existing guidelines, the committee reviewed all 

current guidelines, assembled and assessed additional evidence including reviews of the literature, reviewed Federal health priority 

goals and objectives, and the clinical guidelines of healthcare professional organizations. 

Throughout the study process, the committee repeatedly questioned whether the disease or condition was significant to women, 

and especially whether it was more common or more serious in 

women than in men or whether women experienced different outcomes or benefited from different interventions than men. 

The additional preventive services recommended by the IOM 

Committee for Preventive Coverage consideration also met the following criteria: that the condition to be prevented affects a broad 

population of women; that the condition to be prevented has a large 

potential impact on health and well-being; and, importantly, that 

the quality and strength of the evidence about the effectiveness of 

the preventive measure supports its inclusion. 

The committee took seriously its task of focusing on women’s 

unique health needs. Women are consistently more likely than men 

to report a wide range of cost-related barriers to receiving or delaying medical tests and treatments and to filling prescriptions for 

themselves and their families. Studies have also shown that even 

moderate copayments for preventive services such as mammograms 

and Pap smears deter patients from receiving these services. The 

report suggested eight additional services, including, for example, 

screening for gestational diabetes and additional cancer screening 

for cervical cancer. 

I was asked today to speak to our committee’s recommendation 

5.5, to reduce the rate of unintended pregnancies, which accounts 

for about half of pregnancies in the United States, of which about 

40 percent result in abortion, the report encouraged HHS to consider adding the full range of Food and Drug Administration approved contraception methods as well as patient education and 

counseling for all women with reproductive capacity. 

Unintended pregnancy is linked to a host of health problems. 

Women with unintended pregnancies are more likely to receive delayed or no prenatal care and to suffer from other health problems. 

Unintended pregnancy also increases the risks of babies being born 

preterm or at low birth weight, both of which increase their chance 

of health and developmental problems. 

Family planning services are preventive services that enable 

women and couples to avoid unintended pregnancy and to space 

their pregnancies to promote optimal birth outcomes. Pregnancy 

spacing is a priority for women’s health because of the increased 

27 

risk of adverse pregnancy, outcomes for pregnancies that are too 

closely spaced or within 18 months of each other. 

A wide array of safe and highly effective FDA-approved methods 

of contraception is available. This range of methods provides options for women depending on their life stage, sexual practices, and 

health status. The committee noted that contraceptive coverage has 

become routine for most private insurance and federally funded insurance programs. 

In summary, the report addressed concerns that the current 

guidelines on preventive services contain gaps when it comes to 

women’s needs. As a centerpiece of the Affordable Care Act, the 

focus on preventive services represents a significant and welcome 

shift from a reactive system that primarily responds to acute problems and urgent needs to one that fosters optimal health and wellbeing. Women stand to benefit especially from the shift, given their 

longer life expectancies, their reproductive and gender-specific conditions, and their disproportionate rates of chronic disease and disability from some conditions. Because women need to use more preventive care than men, they face higher out-of-pocket costs. 

Thank you very much for the opportunity to testify. 

Mr. SMITH. Thank you, Dr. Rosenstock. 

[The prepared statement of Dr. Rosenstock follows:] 

Prepared Statement of Linda Rosenstock, M.D., M.P.H., Dean, 

School of Public Health, University of California, Los Angeles 

My name is Dr. Linda Rosenstock. I am the Dean of the School of Public Health 

at the University of California, Los Angeles. I also served as chair of the Institute 

of Medicine’s Committee on Preventive Services for Women. The Institute of Medicine, or IOM, is the health arm of the National Academy of Sciences, an independent, nonprofit organization that provides unbiased and authoritative advice to 

decision makers and the public. 

At the request of the U.S. Department of Health and Human Services’ Assistant 

Secretary for Planning and Evaluation, the IOM assembled a diverse, expert committee to identify critical gaps in preventive services for women as well as recommend measures that will further ensure women’s health and well-being. 

The committee gathered evidence, deliberated on its findings and recommendations, and met five times in a six-month time period in order to write its report, 

Clinical Preventive Services for Women: Closing the Gaps. This report underwent a 

rigorous, independent external review prior to its release in July of last year. The 

Committee recommended that eight preventive health services for women be added 

to the services that health plans cover at no cost to patients under the Patient Protection and Affordable Care Act of 2010, commonly known as the ACA. The ACA 

requires plans to cover the services listed in the comprehensive list of preventive 

services at www.healthcare.gov. 

The committee defined preventive health services as measures— including medications, procedures, devices, tests, education and counseling— shown to improve 

well-being, and/or decrease the likelihood or delay the onset of a targeted disease 

or condition. To guide its deliberations in determining gaps in preventive services 

not included in existing guidelines, the committee developed four overarching questions: 

• Are high-quality systematic evidence reviews available which indicate that 

the service is effective in women? 

• Are quality peer-reviewed studies available demonstrating effectiveness of the 

service in women? 

• Has the measure been identified as a federal priority to address in women’s 

preventive services? 

• Are there existing federal, state, or international practices, professional guidelines, or federal reimbursement policies that support the use of the measure? 

28 

Preventive measures recommended by the IOM committee for preventive coverage 

consideration met the following criteria: 

• The condition to be prevented affects a broad population; 

• The condition to be prevented has a large potential impact on health and 

well-being; and 

• The quality and strength of the evidence is supportive. 

The committee took seriously its task of focusing on women’s unique health needs. 

Women are consistently more likely than men to report a wide range of cost-related 

barriers to receiving or delaying medical tests and treatments and to filling prescriptions for themselves and their families. Studies have also shown that even moderate copayments for preventive services such as mammograms and Pap smears 

deter patients from receiving those services. 

Throughout the study process, the committee repeatedly questioned whether the 

disease or condition was significant to women and, especially, whether it was more 

common or more serious in women than in men or whether women experienced different outcomes or benefited from different interventions than men. 

The report suggested the following additional services: 

• screening for gestational diabetes 

• human papillomavirus (HPV) testing as part of cervical cancer screening for 

women over 30 

• counseling on sexually transmitted infections 

• counseling and screening for HIV 

• contraceptive methods and counseling to prevent unintended pregnancies 

• lactation counseling and equipment to promote breast-feeding 

• screening and counseling to detect and prevent interpersonal and domestic violence 

• yearly well-woman preventive care visits to obtain recommended preventive 

services 

Examples of why these services are crucial in supporting women’s optimal health 

and well-being are listed below. 

Deaths from cervical cancer could be reduced by adding DNA testing for HPV, the 

virus that can cause this form of cancer, to the Pap smears that are part of the current guidelines for women’s preventive services. Cervical cancer can be prevented 

through vaccination, screening, and treatment of precancerous lesions and HPV 

testing increases the chances of identifying women at risk. 

Although lactation counseling is already part of the HHS guidelines, the report 

recommended comprehensive support that includes coverage of breast pump rental 

fees as well as counseling by trained providers to help women initiate and continue 

breast-feeding. Evidence links breast-feeding to lower risk for breast and ovarian 

cancers; it also reduces children’s risk for sudden infant death syndrome, asthma, 

gastrointestinal infections, respiratory diseases, leukemia, ear infections, obesity, 

and Type 2 diabetes. 

The report recommended that HHS consider screening for gestational diabetes in 

pregnant women between 24 and 28 weeks of gestation and at the first prenatal 

visit for pregnant women identified to be at high risk for diabetes. The United 

States has the highest rates of gestational diabetes in the world; it complicates as 

many as 10 percent of U.S. pregnancies each year. Women with gestational diabetes 

face a 7.5-fold increased risk for the development of Type 2 diabetes after delivery 

and are more likely to have infants that require delivery by cesarean section and 

have health problems after birth. 

To reduce the rate of unintended pregnancies, which accounted for almost half of 

pregnancies in the U.S. in 2001, the report urged HHS to consider adding the full 

range of Food and Drug Administration-approved contraceptive methods as well as 

patient education and counseling for all women with reproductive capacity. 

Unintended pregnancy is linked to a host of health problems. Women with unintended pregnancies are more likely to receive delayed or no prenatal care and to 

smoke, consume alcohol, be depressed, and experience domestic violence during 

pregnancy. Unintended pregnancy also increases the risk of babies being born 

preterm or at a low birth weight, both of which increase their chances of health and 

developmental problems. 

29 

Family planning services are preventive services that enable women and couples 

to avoid an unwanted pregnancy and to space their pregnancies to promote optimal 

birth outcomes. Pregnancy spacing is a priority for women’s health because of the 

increased risk of adverse pregnancy outcomes for pregnancies that are too closely 

spaced (within 18 months of a prior pregnancy). A wide array of safe and highly 

effective FDA-approved methods of contraception is available. This range of methods 

provides options for women depending upon their life stage, sexual practices, and 

health status. 

The committee noted that contraceptive coverage has become routine for most private insurance and federally funded insurance programs. Additionally, federal goals 

included in Healthy People 2010 and later in Healthy People 2020 strive to reduce 

the number of unintended pregnancies. 

The report addressed concerns that the current guidelines on preventive services 

contain gaps when it comes to women’s needs. Women suffer disproportionate rates 

of chronic disease and disability from some conditions. Because they need to use 

more preventive care than men on average due to reproductive and gender-specific 

conditions, women face higher out-of-pocket costs. 

Positioning preventive care as the foundation of the U.S. healthcare system is critical to ensuring Americans’ health and well-being. This is a shift from an historically reactive system that primarily responds to acute problems and urgent needs 

to one that helps foster optimal health and well-being. 

Thank you very much for the opportunity to submit this testimony. 

Mr. SMITH. Ms. Monahan, before you begin, let me say to Members that votes have been called, and votes are going to last about 

an hour. We then have a bill on the House floor that will take 

about 20 minutes, and so we will resume our hearing after about 

an hour and 15 or 20 minutes when we leave. Before we leave, 

though, Ms. Monahan, we are going to hear your testimony, I am 

going to ask my questions, and then we will recess and come back. 

So Ms. Monahan, if you will proceed. 

TESTIMONY OF JEANNE MONAHAN, DIRECTOR, CENTER FOR 

HUMAN DIGNITY, FAMILY RESEARCH COUNCIL 

Ms. MONAHAN. Mr. Chairman and honorable Members of the 

Committee, thank you for the opportunity to testify today about the 

significant threats to religious liberty currently facing our country. 

My name is Jeanne Monahan, I work at the Family Research 

Council, a Christian public policy organization. We represent more 

than 1.5 million families of different denominations around the 

country. 

As you are aware, the Affordable Care Act requires health insurance to include preventive care services for women, and the Administration chose to mandate all FDA-approved contraceptives in the 

list of covered services, with a very narrow religious exemption 

that will essentially apply only to churches. 

I speak today as a representative of Americans, particularly 

women, who are opposed to this mandate. Fundamentally, we believe that the President’s mandate violates religious liberty, undermines conscience protections currently in place, and profoundly discriminates against people of faith. 

Almost every Catholic bishop around the country has indicated 

that his diocese will not comply with the mandate, but this is not 

simply a Catholic issue. Over 2,500 evangelical church leaders recently signed a letter in opposition to the President. The National 

Association of Evangelicals, the Southern Baptist Convention, the 

Jewish Orthodox Union and other national religious groups have 

also formally voiced their opposition. 

30 

Religious women are also speaking out. In a recent letter signed 

by thousands of women of 18 different faiths, including doctors, 

lawyers, business owners, and scholars, women wrote, in quotes, 

‘‘No one speaks for all women on these issues. Those who purport 

to do so are simply attempting to deflect attention from the serious 

religious liberty issues at stake,’’ unquote. 

This is about religious liberty. And yet I would also like to provide context about why people like me would object to this mandate. Drugs and devices that can destroy rather than prevent life 

are included in this mandate. It is a scientifically valid belief that 

pregnancy begins at conception or fertilization and not at implantation 7 to 10 days later. But certain drugs and devices are included 

in this mandate that prevent implantation, and one drug included 

can work post-implantation. 

Emergency contraceptives are included. Plan B can prevent an 

embryo from implanting. One extensive literature review of Plan B 

revealed that it possesses at least seven modes of action preventing 

implantation. And then there is ella. Last year the Food and Drug 

Administration approved ella as an emergency contraceptive, but it 

is chemically and functionally almost identical to the FDA-approved abortifacient RU-486. Ella can cause the demise of an embryo post-implantation. In a study of macaque monkeys, ella aborted four out of five fetuses, and there are a number of other studies 

that are included in my written testimony. 

Many Americans believe that drugs that destroy embryos are 

wrong, regardless of FDA classification. Many Americans are profoundly troubled by the inclusion of these drugs in this mandate. 

These Americans should not be forced to participate in and cooperate with their coverage in insurance plans. 

The HHS contraceptive mandate violates longstanding Federal 

conscience and religious protections. Even many women who are favorable toward contraception oppose this mandate. 

Recently in the San Francisco Chronicle a columnist wrote, ‘‘As 

a believer in family planning, I suppose I should be thrilled, except 

that President Obama just trampled on the first part of the First 

Amendment. In a raw exercise of power, the Obama administration 

has decreed that religious organizations must reject their deeply 

held beliefs and hand out FDA-approved contraceptives, including 

the morning-after pill. Now it turns out Americans of all religious 

persuasions are free to choose, as long as they choose to agree with 

Obama.’’ 

It has been said you can be sincere and sincerely wrong. We 

don’t question the President’s motives, but we think he is sincerely 

wrong. You might think that—you might disagree with me and 

think that I and thousands of women like me are sincerely wrong. 

Fine. But don’t force us to—don’t discriminate against us and don’t 

force us to violate our consciences. 

We strongly urge you not to allow this President to discriminate 

against those with moral or religious objections to this mandate 

coverage of contraceptives, sterilization, and abortifacients. Thank 

you. 

Mr. SMITH. Thank you, Ms. Monahan. 

[The prepared statement of Ms. Monahan follows:] 

31 

1 House Oversight and Governance Committee Hearing, ‘‘Lines Crossed: Separation of Church 

and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of 

Conscience?’’ (February 16, 2012) (http://oversight.house.gov/images/stories/Testimony/2-16- 

12lFulllHClMandatelSoloveichik.pdf, p. 3) 

Prepared Statement of Jeanne Monahan, M.T.S., Director of the Center for 

Human Dignity, Family Resarch Council 

Mr. Chairman and honorable members of the committee, thank you for the opportunity to testify before you today about the most critical issue of religious liberty 

facing our country. 

My name is Jeanne Monahan. I work at the Family Research Council, a Christian 

public policy organization that since 1983 has promoted and defended human life 

and religious freedom in the United States. We represent more than 1.5 million people from Evangelical, Catholic, and other Christian denominations around the country. I speak today as a representative of Americans, particularly, American women, 

who are opposed to the President’s contraceptive mandate and its profound discrimination against people of faith. Fundamentally, we believe that the contraceptive 

mandate violates religious freedom and undermines conscience rights protections 

that all Americans have enjoyed until now. 

Background. In December 2009, Senator Barbara Mikulski’s amendment on 

women’s preventive services with no cost-sharing was adopted into the healthcare 

bill. The Affordable Care Act which became law in March 23, 2010, was followed 

in August 2010 by the Department of Health and Human Services (HHS) tasking 

to the Institute of Medicine (IOM) to study and make recommendations on specific 

women’s preventive services to be included with no cost-sharing for patients. The 

IOM held three public meetings on November 16, 2010 and January 12, 2011 and 

March 9, 2011. The advising committee was composed of 17 members, most of whom 

had specialty backgrounds in the area of reproductive health. Invited presenters included representatives of the Planned Parenthood Federation of America, the 

Guttmacher Institute, the National Women’s Law Center, National Women’s Health 

Network, and others. No pro-life or religious liberty scholars, doctors, or public 

health experts were invited to make formal presentations. 

Separate to the invited formal presentations during each meeting was opportunity 

for public comment. During the public comment period in each meeting the topic 

receiving the greatest attention was contraception coverage. I was among many prolife attendees at each of the IOM committee meetings. Among my colleagues from 

the pro-life movement were medical doctors, lawyers, nurses, and health insurance 

providers, most of whom provided remarks during the public comment period. Most 

frequently opponents of a contraceptive mandate discussed the inclusion of abortion 

inducing drugs and devices. 

In July 2011 the committee issued its report. It recommended coverage of the full 

range of FDA-approved contraceptives. The report did not include or reference any 

research related to abortion-inducing drugs presented in the public comment period, 

which, as noted above, were provided at each meeting by a variety of participants. 

On August 1, 2011 HHS revised the general preventive services interim final rule, 

indicating that the Health Resources Services Administration (HRSA) could exempt 

a narrow group of religious employers. The HRSA guidance, which is binding, included the full range of FDA-approved contraceptives as a mandatory preventative 

service for women in all health plans. 

FRC is not opposed to many of the IOM recommended services, including domestic 

violence screenings, gestational diabetes and breast-cancer screenings. However, on 

behalf of millions of people of faith, FRC is strongly opposed to any person or institution being forced to provide coverage for FDA-approved contraceptives and sterilizations because some of these can function as abortifacients. 

Based on the HHS rule issued August 1, 2011 the vast majority of faith-based organizations do not meet the narrow government criteria for a religious organization 

exemption, namely, employing only members of its religion, serving primarily its 

own members, and having as its primary purpose the ‘‘inculcation’’ of religious values. Schools, homeless shelters, hospitals, and other such faith-based organizations 

are not religious enough to be exempt. In the words of Rabbi Soloveichik, Director 

of the Straus Center for Torah and Western Thought Yeshiva University and Associate Rabbi for the Congregation Kehilath Jeshurun, ‘‘[T]he administration implicitly assumes that those who employ or help others of a different religion are no 

longer acting in a religious capacity, and as such are not entitled to the protection 

of the First Amendment.’’ 1

32 

2Department of Health and Human Services,’’Group Health Plans and Health Insurance 

Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable 

Care Act’’ (February 10, 2012) (http://cciio.cms.gov/resources/files/Files2/02102012/ 

psrulel508.pdf, p. 6) 3 Helen Alvare and Kim Daniels, ‘‘Here We Are: Women Who Stand in Favor of Religious Liberty’’ National Review Online (February 21, 2012) (http://www.nationalreview.com/articles/ 

291590/here-we-are-helen-m-alvare) 4 H. Croxatto, et al., ‘‘Mechanism of Action of Hormonal Preparations Used for Emergency 

Contraception: a Review of the Literature,’’ Contraception 63 (2001): 111. 

Following HHS’ announcement in August the Department received over 200,000 2

comments from the public on the contraceptive mandate. In a matter of days our 

own constituents filed over 15,000 comments and similarly the US Conference of 

Catholic Bishops (USCCB) reported that their constituents filed over 60,000 comments in protest. 

Despite this groundswell of disagreement, on January 20, 2012 the Administration issued a press release announcing the government would grant a year’s delay 

so that religious organizations not exempted could determine how to violate their 

consciences. The understandable uproar across the country led to a February 10, 

2012 announcement by President Obama of a promised ‘‘accommodation’’ requiring 

that religious employer’s health insurance companies cover the costs of contraceptives and abortifacients rather than the employers. However, no corresponding written changes were made by law or regulation. 

On the same day the government issued the final regulation, again restating only 

the narrow religious exemption. It also re-issued binding guidance that reiterated 

the contraceptive mandate, with a promise of a future accounting procedure that 

would be issued with regard to the accommodation. However, should an accounting 

procedure be issued in future regulations, religious employers will still be forced to 

pay insurers who would in turn provide their employees the services to which they 

have religious objections. This is no accommodation. Religious employers would still 

under this scheme be violating their conscience by virtue of government fiat. 

Response from religious people. What do religious people, those who will carry 

the burden, have to say about this mandate? As of today, most Catholic Bishops 

within the U.S. have stated that they will not comply. Yet this is not exclusively 

a Catholic issue. Recently 2,500 Evangelical church leaders signed FRC’s letter in 

opposition sent to President Obama. The National Association of Evangelicals and 

the Southern Baptist Convention have also expressed their opposition. 

Religious women are also speaking out. In a letter to the President and members 

of Congress recently signed by thousands of women of 18 different faiths and representing doctors, nurses, lawyers, teachers, mothers, community care workers, 

business owners, scholars and more women voiced their ardent opposition to the 

mandate. 

The letter included these observations: 

‘‘We listened to prominent women purport to speak for us. We watched them 

duck the fundamental religious-liberty issues at stake. No one speaks for all 

women on these issues. Those who purport to do so are simply attempting to 

deflect attention from the serious religious liberty issues at stake. We call on 

President Obama, Health and Human Services Secretary Kathleen Sebelius, 

and our representatives in Congress to respect religious voices, to respect religious liberty, and to allow religious institutions and individuals to continue to 

provide witness to their faiths in all their fullness.’’ 3

It is not acceptable for the government to force religious people to violate their 

beliefs by compelling their participation in insurance plans that provide services to 

which they fundamentally object. Many religious believers oppose this narrow exemption for religious churches as well. Not all oppose contraceptives, but many do. 

Most strongly oppose abortifiacient drugs and devices, and there is a strong consensus objecting to the way this rule purports to redefine religion and religious belief. 

Abortion-inducing drugs. Drugs and devices that destroy, rather than prevent 

life, are included in this mandate. For example, in the list of drugs to be provided 

with no cost-sharing are those categorized as emergency contraceptives (EC). The 

first of these drugs is Levonorgestral, or Plan B. Plan B possesses a number of 

mechanisms of action which can prevent a newly formed embryo from implanting 

in the uterine wall. One extensive review of the available medical literature on 

Levonorgestral revealed as many as seven mechanisms of action that potentially 

could prevent implantation of an embryo.4 In another literature review of the mechanisms of action of Levonorgestral, the authors concluded, ‘‘The evidence to date 

supports the contention that use of EC does not always inhibit ovulation even if 

33 

5 C. Kahlenborn, et al., ‘‘Postfertilization Effect of Hormonal Emergency Contraception,’’ Annals of Pharmacotherapy (2002): 468. 6 U.S. Department of Health and Human Services Food and Drug Administration, ‘‘Plan B 

One Step Labeling Information’’ (July 2009): p. 4 http://www.accessdata.fda.gov/ 

drugsatfdaldocs/label/2009/021998lbl.pdf. 7 RU–486 (mifepristone; Mifeprex®) was approved in 2000 by the FDA as an ‘‘abortifacient.’’ 8 U.S. Department of Health and Human Services Food and Drug Administration, ‘‘Ella Labeling Information’’ (August 2010): p.1 (http://www.accessdata.fda.gov/drugsatfdaldocs/label/2010/ 

022474s000lbl.pdf). 9D. Harrison and J. Mitroka, ‘‘Defining Reality: The Potential Role of Pharmacists in Assessing the Impact of Progesterone Receptor Modulators and Misoprostol in Reproductive Health,’’ 

Annals of Pharmacotherapy 45 (Jan. 2011): 115–9. 10 Reel et al., ‘‘Antiovulatory and Postcoital Antifertility Activity of the Antiprogestin CDB– 

2914 When Administered as Single, Multiple, or Continuous Doses to Rats,’’ 58 Contraception 

(1998): 129–136, p. 129; VandeVoort et al., ‘‘Effects of Progesterone Receptor Blockers on Human 

Granulosa-Luteal Cell Culture Secretion of Progesterone, Estradiol, and Relaxin,’’ 62 Biology of 

Reproduction (2000): 200–205, 200. In this article, ulipristal is referred to as ‘‘HRP–2000,’’ Hild 

et al., ‘‘CDB–2914: Anti-progestational/antiglucocorticoid Profile and Post-coital Anti-fertility Activity in Rats and Rabbits,’’ 15 Human Reproduction (2000): 822–829, 824; G. Teutsch and D. 

Philibert, ‘‘History and Perspectives of Antiprogestins from the Chemist’s Point of View,’’ 9 

Human Reproduction (1994)(suppl 1):12–31; B. Attardi, J. Burgenson, S. Hild, and J. Reel, ‘‘In 

vitro Antiprogestational/Antiglucocorticoid Activity and Progestin and Glucocorticoid Receptor 

Binding of the Putative Metabolites and Synthetic Derivatives of CDB–2914, CDB–4124, and 

mifepristone,’’ Journal of Steroid Biochemistry and Molecular Biology 88 (2004): 277–88. 11 A.F. Tarantal, A.G. Hendrickx, S.A. Matlin, et. al., ‘‘Effects of Two Antiprogestins on Early 

Pregnancy in the Long-tailed Macaque (Macaca fascicularis),’’ 54 Contraception 1996: 107–15; 

European Medicines Agency, ‘‘CHMP Assessment Report for EllaOne,’’ (Doc.Ref.: EMEA/261787/ 

2009). 12 European Medicines Agency, ‘‘CHMP Assessment Report for EllaOne,’’ (Doc.Ref.: EMEA/ 

261787/2009): p. 10. 13 Harrison and Mitroka, supra. 14 Ibid. 

used in the preovulatory phase, and that it may unfavorably alter the endometrial 

lining regardless of when in the cycle it is used, with the effect persisting for days.’’ 5

Plan B’s labeling information also admits this scientific reality. ‘‘[Plan B] may inhibit implantation (by altering the endometrium)’’ 6. 

The second problematic FDA-approved drug covered by the mandate is ulipristal 

acetate, marketed as Ella® by Watson Pharmaceuticals. Including Ella in the mandatory category of ‘‘preventive care service for women’’ means that HHS is requiring 

each health insurance plan to cover a drug which possesses the ability to kill an 

implanted embryo. The demise of an embryo post-implantation is widely agreed by 

all, even those who define pregnancy at implantation, to constitute an abortion. The 

FDA approved Ella under the label of an ‘‘emergency contraceptive,’’ but Ella is 

chemically and functionally similar to the FDA-approved abortifacient, RU–486.7

Even Ella’s label states that the drug is contra-indicated for pregnancy.8

A recent article published in Annals of Pharmacotherapy stated ‘‘[t]he mechanism 

of action of ulipristal in human ovarian and endometrial tissue is identical to that 

of its parent compound, mifepristone.’’ 9 Numerous other research studies confirm 

ulipristal’s abortifacient mechanism of action.10 In one such study involving 

ulipristal’s action in macaques (monkeys), four out of five fetuses were aborted.11

In paperwork filed for the approval of ulipristal in Europe, the European Medicines Agency noted that ‘‘Ulipristal, mifepristone and lilopristone were approximately equipotent at the dose levels of 10 and 30 mg/day in terminating pregnancies 

in guinea-pigs . . . ’’ 12 The authors of the Annals article noted: ‘‘[E]xisting studies 

in animals are instructive in terms of the potential abortive effects of the drug in 

humans.’’ 13 Their analysis led them to conclude ‘‘it can be reasonably expected that 

the prescribed dose of 30 mg of ulipristal will have an abortive effect on early pregnancy in humans.’’ 14 Thirty milligrams is the precise dose of ulipristal now provided 

in a single package of Ella when purchased as emergency contraceptive in the 

United States. 

The IOM report ignored such scientific research and analysis. Yet many Americans are deeply troubled by the inclusion of these drugs on the mandatory coverage 

list. Those who oppose their inclusion on religious and moral grounds should not be 

forced to participate in and cooperate with their coverage in insurance plans. The 

government should not force people of faith to violate their religious beliefs concerning drugs they reasonably view as destroying human life. 

Many Americans believe that drugs that destroy embryos are wrong regardless of 

FDA classification. It is a scientifically valid belief that conception occurs at fertilization and that pregnancy begins with fertilization and not with implantation. 

This analysis is supported by a recent survey of the four American medical dictionVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6621 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
34 

15 Christopher M. Gacek, ‘‘Conceiving ‘Pregnancy’: U.S. Medical Dictionaries and Their Definitions of ‘Conception’ and ‘Pregnancy,’’’ National Catholic Bioethics Quarterly (Autumn 2009): 

542–557. 16 42 U.S.C. § 300a-7. 17 Hyde-Weldon is currently contained in Section 508(d) of Division D of the Consolidated Appropriations Act, 2010 (P.L. 111–117), 123 Stat. 3280 (2009) which was renewed through the 

Department of Defense and Full Year Continuing Appropriations Act of 2011 (P.L. 112–10). 18 107 Stat. 1488, as amended, 42 U.S.C. § 2000bb et seq. 19 42 U.S.C. § 2000bb-1(b). 20Debra Saunders, ‘‘Obama imposes will in contraception compromise,’’ San Francisco Chronicle (February 15, 2012) (http://www.sfgate.com/cgibin/article.cgi?f=/c/a/2012/02/14/ 

ED6D1N70AQ.DTL) 

aries showing that three of the four back this position.15 Moreover, pregnancy is not 

a disease. While diseases or complications related to pregnancy should be treated, 

pregnancy itself is not a disease or illness. Yet even if there is disagreement with 

the beliefs of religious Americans who oppose drugs that can destroy embryos before 

or after implantation, it is not the proper role of the government to force them to 

violate their religious beliefs. 

Conscience and religious protection violations. The HHS contraceptive mandate violates the spirit and, in one cases, the letter of long-standing federal conscience laws meant to protect people and groups from government discrimination in 

health care. In the past 35 years, Congress has passed a number of laws (notably, 

the Church Amendments 16 and the Hyde-Weldon Amendment 17) related to protecting the conscience rights of healthcare workers from government discrimination 

with regard to abortion or any service in a federally funded or administered program. These laws forbid discrimination in such programs. The HHS contraceptive 

mandate extends government discrimination beyond these laws’ protections by ordering insurance coverage in the private market in such a way as to violate the consciences of insurers, providers, and plan participants who have moral or religious 

objections. To the extent the HHS mandate includes Ella, we believe it violates the 

Hyde/Weldon ban on using federal funds to discriminate against health care entities 

that object to ‘‘abortion’’. 

The HHS contraceptive mandate also impinges upon a person’s exercise of his or 

her religion. In 1993, Congress enacted the Religious Freedom Restoration Act 

(‘‘RFRA’’)18 which holds a law or regulation that imposes a ‘‘substantial burden’’ on 

a person’s free exercise of religion to be allowed only when the government can demonstrate ‘‘that application of the burden’’ furthers ‘‘a compelling governmental interest.’’ 19 In a related hearing on this mandate Bishop William Lori was asked if he 

believed that the government had a ‘‘compelling interest’’ sufficient to warrant a 

contraceptive mandate that will burden Catholic or others’ religious beliefs. Bishop 

Lori responded that if the government felt they had a ‘‘compelling interest’’ to burden religious liberty, it would not have provided for any kind of religious exemption. 

As Bishop Lori pointed out, the mandate and exemption each is arbitrary in that 

it is the government that decides who is and who is not religious. 

As Rabbi Soloveichik testified on February 16th before Congress: ‘‘First: by carving out an exemption, however narrow, the administration implicitly acknowledges 

that forcing employers to purchase these insurance policies may involve a violation 

of religious freedom. Second, the administration implicitly assumes that those who 

employ or help others of a different religion are no longer acting in a religious capacity, and as such are not entitled to the protection of the First Amendment. This 

betrays a complete misunderstanding of the nature of religion.’’ 

This is a religious liberty issue. The Administration’s imposition of its will on religious organizations is an act of gross discrimination against people of faith. Even 

those who are not opposed to contraceptives generally have spoken against the Government’s ‘‘accommodation’’. Debra Saunders writes in the San Francisco Chronicle, 

‘‘As a believer in birth control and family planning, I suppose I should be thrilled. 

Except that President Obama just trampled on the first part of the First Amendment, ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’’ She eloquently refutes the argument made by 

some that the HHS mandate guarantees ‘‘choice’’. Ms. Saunders writes ‘‘But there 

is a ‘choice’ problem. In a raw exercise of power, the Obama administration has decreed that religious organizations must reject their deeply held beliefs and hand out 

FDA-approved contraceptives—including the morning-after pill . . . Now it turns 

out, Americans of all religious persuasions are free to choose, as long as they choose 

to agree with Obama.’’ 20

Conclusion. The contraceptive mandate is an unprecedented directive which 

deeply conflicts with religious and conscience freedom protections the American people currently receive. In our democratic society governed by the U.S. Constitution, 

35 

it is not the role of this Administration to dictate what does or does not violate another person’s conscience on matters as critical as life and death. It is the job of 

the government to defend those rights, not trample them. This Administration’s act 

of discrimination against people of faith, and women of faith, must be stopped. As 

CS Lewis said, you can be sincere, and sincerely wrong. We don’t question the President’s motives, but we think he is wrong. You may disagree with me, and think that 

I and the thousands of women like me are wrong. Fine, but do not discriminate 

against us and force us to violate our consciences. We urge you not to allow this 

President to discriminate against those with moral or religious objections to this 

mandate coverage of contraceptives, sterilization services, and abortifacients. 

Mr. SMITH. Bishop Lori, let me direct my first couple of questions 

to you, and the first is this: What changes should the Administration make to the mandate to protect the religious liberties of 

Catholic and other religious organizations? 

Bishop LORI. Mr. Chairman, we think that the mandate to provide these so-called preventive services should be rescinded. We 

think that is the real way out of this; and barring that, we hope 

there would be legislative relief. 

Mr. SMITH. Okay. Second question is what religious burdens 

would be imposed upon religious organizations who chose not to 

comply with the mandate? 

Bishop LORI. It is not a very nice menu. The first item on the 

menu would be to violate our consciences. In other words, as was 

said here, to teach one thing on Sunday and to do quite another 

thing on Monday, to be a counter witness to our own teaching. Secondly, we could be fined, and the fines would be severe and crippling. Or, thirdly, of course, we could have to cease providing services or cease providing health care, and I don’t think that is in anybody’s interests. 

Mr. SMITH. Under the Affordable Health Care Act, wouldn’t the 

fines be perhaps $2,000 per person? 

Bishop LORI. I am told it is such. I think it would be an untenable burden. 

Mr. SMITH. On Catholic and other organizations. 

Bishop LORI. Absolutely. 

Mr. SMITH. If they do not comply with the mandate. Okay, thank 

you. 

Mrs. Uddin, if the mandate stands as it is, what are the implications for the religious liberties of all Americans? In other words, 

what else could the Federal Government impose on religious organizations? 

Mrs. UDDIN. We have to remember that religious liberty is a bedrock principle of our Constitution and of our society. It is precisely 

the same principle that has justified exemptions for a number of 

different religious groups, whether it be Quakers being exempt 

from going to war or a prison guard being exempt from having to 

partake in the death penalty because of their beliefs. And ultimately, once you open the gates for this sort of trampling on religious liberty, it is a slippery slope to a much broader violation. 

Mr. SMITH. But what are other examples, what else could the 

government force religious organizations to provide if this mandate 

were to remain in effect, as is, unchanged? 

Mrs. UDDIN. Well, I mean, this mandate has been justified on the 

basis of the fact that there are health benefits to providing contraVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
36 

ceptives, but the issue of health benefits is not the point. If the government mandates everything that has positive health benefits, it 

could possibly mandate that everyone drink red wine for heart 

health, even though it violates the religious beliefs of Muslims and 

Mormons; and it could mandate that everyone eat shellfish, even 

though that violates the religious beliefs of Jews; and it could mandate gym memberships because it is widely accepted that exercise 

is beneficial. 

Mr. SMITH. Okay, thank you. Ms. Monahan, let me ask you a 

question. You testified that you speak today as a representative of 

Americans, particularly American women who are opposed to the 

President’s contraceptive mandate. Can you describe how it feels to 

have your sincere religious objections to the mandate and your concern for its broader impact on religious liberty characterized by 

supporters of the mandate as, ‘‘an attack on women’s health’’? 

Ms. MONAHAN. Well, first let me just say I am still somewhat 

shocked and awed just by this decision to begin with. I mean, I 

worked in the Office of the Secretary both during the Bush administration and the Obama administration, and I think this is a huge 

overreach, and I am still just shocked by it; but in terms of characterizing it against women’s health, I mean, let’s consider the fact 

that religious employers are going to be forced to withdraw health 

benefits for women, and obviously that won’t be very good for women’s health. They will lose the status quo. 

Mr. SMITH. Okay, thanks, Ms. Monahan. 

That concludes my questions, and we have 2 minutes left to get 

to the series of votes. I apologize to you all, but I would like to ask 

you to wait, if you could, until we return. Please feel free to take 

a break, leave the room, but I would expect that we might resume 

our hearing between 4:45 and 5:00, and we will encourage Members to return at that point. So thank you for your patience. We 

stand in recess until about 15 minutes after the last vote in the series of votes. 

[Recess.] 

Mr. FRANKS. [Presiding.] Judiciary Committee meeting will now 

come to order, and we will recognize Mr. Nadler for 5 minutes. 

Mr. NADLER. Thank you. 

Dr. Rosenstock, you are at UCLA in California. As I mentioned 

in my opening statement, California requires coverage of contraceptive services, including by religious-affiliated entities. How has that 

worked in your State? 

Dr. ROSENSTOCK. From my perspective as a physician, it is working very well. As you had mentioned in your comments, there was 

some initial legal testing of the exemption, which was seen as limited, but since it has been in place, there is, to my knowledge, very 

broad participation. I would hope—— 

Mr. NADLER. Have any of the Catholic-affiliated, other affiliated—— 

Dr. ROSENSTOCK. I am aware there are certainly many. One of 

the larger ones that comes to mind is Catholic Hospital West, a religious-affiliated employer, includes—— 

Mr. NADLER. I am asking—excuse me, have any of them refused 

to provide services or refused to—or refused to obey the law? 

Dr. ROSENSTOCK. Not that I am aware of. 

37 

Mr. NADLER. Okay. Thank you. 

And in his testimony Bishop Lori states that ‘‘it is downright 

surreal to apply coercive power when the customer can get the 

same sandwich cheaply or even free just a few doors down.’’ The 

underlying assertion and comparison is that contraceptive services 

are cheap, even free, for anyone who wants them. Do you agree 

with that assertion? 

Dr. ROSENSTOCK. No. 

Mr. NADLER. Because? 

Dr. ROSENSTOCK. Well, some are relatively inexpensive. It turns 

out the ones that are most effective actually do cost more. So the 

implantable IUDs, for example, or the injectables are a higher cost. 

Even the prescribed contraceptive pills can run 60 a month. And 

it has been shown that those cost barriers can actually cause 

women not to use—either use them at all, or use them the way 

they are supposed to be undertaken. 

Mr. NADLER. Thank you. 

Ms. Uddin, the Supreme Court in the Estate of Thornton v. 

Caldor struck down a Connecticut law that did not adequately take 

into account the rights of those not benefiting form the religious accommodation at issue. More recently in 2005, the Supreme Court 

stated in Carter v. Wilkinson, ‘‘Our decisions indicate that an accommodation must be measured so that it does not override other 

significant interests.’’ 

First, doesn’t that mean that neither Congress nor the executive 

branch is free to ignore the rights of others in considering a measured, workable balance; in this case the rights of people who may 

want to avail themselves of contraceptive services? 

Mrs. UDDIN. Well, I wanted to first start by pointing out that the 

most recent relevant case in the U.S. Supreme Court here is the 

Hosanna-Tabor case that—and the decision was handed down just 

this past January. 

Mr. NADLER. Excuse me. That is a ministerial exemption. We are 

not talking about that. 

Mrs. UDDIN. Well, it is not—— 

Mr. NADLER. What? That is ministerial and employment. That 

has got nothing to do with this. Wait a minute. That has got nothing to do with this. 

Mrs. UDDIN. But the broader points about—— 

Mr. NADLER. No, it is not the broader points. I am asking you 

a specific question. The court in Carter v. Wilkinson said, our decisions indicate an accommodation must be measured so that it does 

not override other significant interests. In this case, the other significant interest is people who need contraceptive services. Doesn’t 

that mean that neither Congress nor the executive branch is free 

to ignore their rights and say all of the rights are on the side of 

the employer; we respect his rights, and never mind any of the 

rights of the employees who may need contraceptive services? We 

are not going to do a balancing test. 

Would you agree or not agree that the Supreme Court has commanded a balancing test? 

Mrs. UDDIN. The correct test in this case, both under the Religious Freedom Restoration Act, and under the free exercise clause, 

38 

in situations like this, where the law at issue is not generally applicable nor neutral, is that if they—— 

Mr. NADLER. Wait. First of all, it is generally applicable. Everybody has got to give contraceptives. And second of all, it is—the 

California and New York courts found that those laws which are 

identical basically were generally applicable. 

Mrs. UDDIN. Well, first to start off, it is not generally applicable 

in this case, because they are—the mandate is riddled with individualized and categorical exemptions. 

Mr. NADLER. The same argument that California and New York 

courts rejected, with all due respect. 

Mrs. UDDIN. Now, in the case of the California and New York 

Supreme Court cases, there are a number of fundamental differences between that situation and the one we are dealing with 

right now. 

Mr. NADLER. Yes. 

Mrs. UDDIN. The first is that they did not make a claim under 

the Religious Freedom Restoration Act because that applies only to 

Federal law. 

Mr. NADLER. I understand that. I was one of the authors. 

Mrs. UDDIN. And so the compelling interest test comes into play 

there. 

Mr. NADLER. But the—okay, go ahead. 

Mrs. UDDIN. Second, there were a couple of really strong free exercise claims that are—we are making here and that they failed to 

make in that case. 

Mr. NADLER. All right. Let me ask you finally before I go to 

Bishop Lori for one question, how would you strike the balance, assuming you agree there ought to be a balance, that as an executive 

agency you are not simply free to ignore the findings from the IOM 

and many professional health organizations that these services are 

critical to women’s health, and there are cross barriers to women 

being able to access the contraceptive services they want and need 

on a consistent basis on the one hand and the religious considerations on the other? How would you strike that balance? 

Mrs. UDDIN. The Becket Fund is not denying that this constitutes health care, important health care, for women. 

Mr. NADLER. How would you strike the balance? 

Mrs. UDDIN. The law already strikes the balance. It says there 

must be compelling government interests narrowly—— 

Mr. NADLER. You are saying the law is wrong. How would you 

strike the balance? 

Mrs. UDDIN. Well, for instance, you know, if you are looking—a 

law has to be narrowly tailored, and one way—and it shouldn’t be 

intrusive and truly disbelieved. And one way for the government to 

do that is to just find other avenues, and there are so many already 

available or that they can come up with to provide—— 

Mr. NADLER. Well, but the government found that there weren’t. 

Okay. Bishop Lori. 

Mr. FRANKS. The gentleman’s time has expired. 

Mr. NADLER. Can I have 1 additional minute? 

Mr. FRANKS. Without objection. 

Mr. ISSA. Mr. Chairman, can we also ensure that Mrs. Uddin 

would be able to fully answer her questions? She was cut off reVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
39 

peatedly. She has got half a dozen things she was never able to answer. 

Mr. NADLER. As long as I can still question Bishop Lori, that is 

fine with me. 

Mr. FRANKS. Mrs. Uddin, is there any additional things you 

would like to add? 

Mrs. UDDIN. Well, yes. Going back to the California and New 

York State opinions, as I was noting, there are a number of critical 

differences. One is a lack of RFRA claim. 

Second is the fact that a number of very strong free exercise 

claims were not made in that case; for instance, the fact that this 

is not a neutral or generally applicable law, because it is riddled 

with a categorical and individualized exemptions. 

And third, those cases were decided in 2004 and 2006. Now we 

are dealing with, you know, post-Hosanna-Tabor free exercise jurisprudence, and it makes a critical difference. 

Mr. NADLER. You said we are dealing with what did you say? I 

am sorry. Wait. You said we are dealing with what did you say? 

Mrs. UDDIN. The climate of free exercise jurisprudence in the 

aftermath of the Hosanna case—— 

Mr. NADLER. Hosanna case. 

Mrs. UDDIN. That came down in January. And while you might 

be limiting that to the ministerial exception, the broad points that 

case made is that religious employers have special rights by virtue 

of the fact that they are religious. 

Mr. NADLER. Okay, Bishop. 

Mr. FRANKS. Without objection, the gentleman is recognize for 1 

additional minute to—— 

Mr. NADLER. Thank you. 

The California suit, by the way, used the same compelling interest test as is required by RFRA and rejected the claim. But Justice—Bishop Lori, excuse me. In United States v. Lee, the Amish 

employer had a religious objection to paying Social Security taxes, 

which is a law of general applicability, and the Court ruled that 

he had to pay the Social Security taxes whether it violated his conscience or his religion or not because it is a general law of applicability, et cetera. 

What is the limiting principle to your claim that people who conscientiously object, not just the church, but the business owner, 

may refuse to obey a law of general applicability, provide health 

care services? What is the difference between that and the Amish 

case, and what is the limiting—what is the limit on that? Because 

if there is no limit, then we have no laws, because everybody can 

object to every law based on his own conscience. 

Bishop LORI. Well, I am not a lawyer, of course, so I probably 

can’t give you an answer that you would regard as adequate, but 

I would just simply say this: That we have had the kind of conscience protection that we have needed since 1973. It has been on 

the books, and chaos has not ensued. Catholic entities have offered 

excellent healthcare plans. In fact, they are so excellent that people 

who have availability for their spouses’ healthcare plans often opt 

for ours. 

40 

So our rights of conscience, which have been exercised for a long, 

long time, have not prevented us from offering excellent healthcare 

plans. 

Mr. FRANKS. The gentleman’s time has expired. 

Now I recognize Mr. Sensenbrenner for 5 minutes. 

Mr. SENSENBRENNER. Thank you very much, Mr. Chairman. 

First of all, a matter of clarification. The Religious Freedom Restoration Act was an accommodation to religious interests, and its 

sponsors were Senator, then-Representative, Schumer and Senator 

Kennedy. So this wasn’t anything stinky old conservatives like me 

ended up passing. It was something that was recognized by the 

gentleman from New York’s current Senator and practically the entire Congress that was needed. 

Now, I think this issue is basically framed in terms of employees 

as they have to choose between their faith and their job, and that 

should never take place in the United States of America. This is 

not an issue of a single religious denomination. A lot of this is centered around what the Catholic Church teaches. It is about a government entity telling the faith that it will apply its priorities notwithstanding what the faith’s teaching is. And that is kind of a reverse disestablishment of religion, in my opinion. It is just as bad 

as an establishment of religion. 

Now, since the HHS mandate was reimposed without any change 

from August, the exemption is a very narrow one, meaning that a 

church is covered, but a religious entity is not. 

You know, I know that the Gospel teaches those of us who are 

Christian that we are supposed to serve everybody. You know, we 

don’t ask questions about people’s faith, what denomination, if any, 

that they belong to. But, Bishop Lori, I want to ask you, you know, 

given how this works, you know, say there is a soup kitchen that 

is run in a parish hall in the basement of the church. The church 

has an exemption, but, say, people come on in. Does the nun who 

runs the soup kitchen have to ask the people, are you Catholic, 

rather than, are you hungry, before serving the food, otherwise the 

exemption would be lost? 

Bishop LORI. Well, look, I think this very, very narrow definition, 

this four-part test of what it means to be religious, opens us up to 

all kinds of challenges, because it is not just Catholic charities or 

hospitals that serve the general public, but indeed all of our parishes are open to serving the needs of the community. And it could 

not possibly serve the common good for there to be a chilling effect 

on religious entities from serving the general public, the common 

good, the neediest among us, for fear that we would lose our exemption and, therefore, be forced to violate our consciences. It 

shouldn’t work that way. 

Mr. SENSENBRENNER. Now, it has been referred to by several of 

the witnesses about self-insured religious entities. 

Bishop LORI. Uh-huh. 

Mr. SENSENBRENNER. And if the sponsoring denomination of the 

religious entity has a doctrinal bar to doing something, you know, 

whether it is in the healthcare field or something like that, using 

the healthcare law, so you can’t pay for it directly, but you will end 

up having to pay for it indirectly by shutting down your self-insured plan and by buying into the exchanges, you know, number 

41 

one, isn’t it just as wrong to do it indirectly as it is directly? And 

secondly, what is the cost involved by going from some self-insured 

entity to going into the exchanges? It has got to be steep. 

Bishop LORI. Sure. First of all, I do not think that it passes the 

moral test just to say that the insurer does it. Even if you are not 

self-insured, as one commentator said, it is like when you are in 

college, and you pay the older kid to get your beer for you. It 

doesn’t really pass the moral test. 

And secondly, we are self-insured for a good reason. We are selfinsured because we can afford it. It is the way we are able to provide high-quality healthcare plans for our employees. And if we are 

forced to buy a fully insured plan or go out into the exchanges, I 

think it would be, for most places, prohibitive. Like everybody else, 

this is, of course, a big challenge for us economically. 

Let me also say that the grandfathered plans that we are talking 

about, even those put us in the straightjacket, because if we vary 

our plans a little too much either way, we lose out on being grandfathered, if I can put it in a nontechnical way. 

So what is happening is we are really being put in a straightjacket here not only morally, but also economically. 

Mr. SENSENBRENNER. I thank you. 

Mr. FRANKS. Thank you, gentlemen. 

I would recognize Ms. Lofgren for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I have listened to this testimony with some interest, and, you 

know, one of the witnesses said it would be like the government 

requiring us to drink red wine for our health. That is absolutely 

incorrect. I mean, nobody is requiring anyone to use birth control. 

If you are against birth control, fine, don’t use it. But I think it is 

important for the women of this country to have that choice for 

themselves, not for you to decide. 

I think it is an astonishing situation that we are discussing this 

here in 2012, when I thought the decision was pretty much resolved in 1965 when I was in high school, in the Griswold case. 

I would like to ask unanimous consent to put a couple of things 

in the record. One is a statement from the Leadership Conference 

of Women Religious, where they point out that the LCWR is grateful to President Obama’s administration and believe the resolution 

the President made is fair and helpful. And that was issued by Sister Pat Farrell, Sister Florence Deacon, and Sister Mary Hughes, 

all of the association; a statement from the Association of Jesuit 

Colleges and Universities where they commend the Obama administration for its willingness to work with us, and look forward to 

working out the details with the new regulations; a statement from 

Sister Carol Keehan, the president of the Catholic Health Association of the United States, saying that the Catholic Health Association is pleased, very pleased, with the White House announcement; 

and a statement from the Sisters of Mercy saying that the Sisters 

of Mercy of America are pleased that the adjustments are being 

made, and they commend President Obama. 

So I would like unanimous consent to put these statements into 

the record, Mr. Chairman. 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 

42 


73101B1.eps
43 


73101B2.eps
44 


73101B3.eps
45 


73101B4.eps
46 

Ms. LOFGREN. I would like to ask Doctor—from UCLA, we are 

both Californians, and we are both aware that the State of California has had a mandate that birth control has to be provided to 

people in health care for quite some time. Can you describe that 

mandate to us here? Is it a narrower exemption that the State has 

or a broad one? 

I can’t hear you. 

Dr. ROSENSTOCK. I am sorry. I think it would be considered akin 

to the exemption that was initially promulgated by the Administration, a narrow one. I think, as I was saying earlier, the experience 

in California once the law was settled was that this is working 

well, and that it was much less of a problem than it was predicted 

it would be. And I would hope and predict that the same would be 

true here, because it is not just California. I was starting to say 

California and Catholic Hospitals Western California, a large, religiously affiliated employer, has included in its insurance plan contraception and does so broadly. 

I think the importance of what we are looking at here is not just 

what is common practice. Twenty-eight States are actually, in some 

form, already having this mandate. But what is different is that we 

are talking about a no-cost; in other words, the absence of copays 

and deductibles. 

Ms. LOFGREN. Right. 

Dr. ROSENSTOCK. By coupling the barrier of cost with the proven 

effectiveness of family planning, the anticipation is that the health 

will improve dramatically. 

Ms. LOFGREN. Now, there are plenty of reasons that some women 

need birth control pills for other than to prevent pregnancy; are 

there not? 

Dr. ROSENSTOCK. Oh, absolutely. So there is no question that 

contraception, contraceptive pills are used for a variety of medical 

conditions both because of their direct ability to treat the condition, 

reproductive disorders, ovarian cysts, acne, a range of them; also 

because sometimes we would have other medical conditions for 

which pregnancy could put them at significant risk and a wide 

range of conditions for which they are being used. 

Ms. LOFGREN. Well, you know, I would just like to note that, you 

know, we all pay taxes, and our taxes are used to provide birth 

control to women in the military. There may be people—or, for example, our witness, the Bishop, objects to birth control, which is 

absolutely his right, but I don’t think he would argue that he 

shouldn’t have to pay taxes because Army women get birth control. 

I do think that, you know, to be against birth control is a right in 

America. To deny birth control to American women is way beyond 

what is right. 

And with that, Mr. Chairman, I would yield back. 

Mr. ISSA. Mr. Chairman, I believe there was a question in that 

for the bishop. I would ask unanimous consent he be able to respond. 

Ms. LOFGREN. I had no question for the bishop. I had a statement of my opinion. 

Mr. FRANKS. All right. Let me just suggest that perhaps some of 

the issues surrounding contraceptives might have been addressed 

and resolved in 1965 judicially, but the issue before us today was 

47 

addressed and resolved in 1789 and 1791 respectively when we 

adopted the Constitution and the Bill of Rights and later ratified 

them in 1791. 

With that, I would recognize Mr. Lungren for 5 minutes. 

Mr. LUNGREN. I thank the Chairman. I would say it was not a 

question that was addressed to the bishop. There was a statement 

of what the bishop thought according to the gentlelady from California; a nice rhetorical technique in which you allege someone 

thinks something without asking them what they think. 

There has been a couple of comments here—— 

Ms. LOFGREN. Thank you. 

Mr. LUNGREN [continuing]. In which reference was made to 

Catholic Healthcare West, which is the proper name. They removed 

the name ‘‘Catholic’’ from their operations recently. They now call 

themselves ‘‘Dignity.’’ I met with them, and I told them I thought 

‘‘Catholic’’ was a good word for the last 2,000 years, and I, for one, 

was not embarrassed to be Catholic. 

I have been a Republican since I was adult. I have been a Catholic since I was baptized. I have been an American since I was born. 

I didn’t think I was going to have a situation in which the question 

would be raised whether you can be adequately and fully Catholic 

and fully American. 

The irony with what we have here today is that those who were 

anti-Catholic in the 1800’s were Republicans and Know-Nothings. 

Unfortunately it appears that the party that defended Catholics in 

the 1800’s and now questions whether Catholic thought is appropriate because it is antiscience, or somehow Catholics are attempting to impose their views on others. 

It is crystal clear what is happening here. It is the Obama administration, which believes it has the right, perhaps, under the 

rubric of secular humanism or some other such concept, to impose 

its thoughts and its principles on those who are of the Catholic 

faith and other faiths. It has nothing to do with contraception; has 

everything to do with religious liberty. 

In a letter that the Archbishop of San Francisco had published, 

he said this: In 1804, as a result of the Louisiana Purchase, New 

Orleans, formerly governed by the French Empire, passed to the jurisdiction of the United States of America. Sister Marie Therese 

Farjon of the Ursuline Order of Sisters serving in New Orleans 

wrote to President Thomas Jefferson to ask whether the sisters’ 

property and ministries would be secure under the new government. In a remarkable letter, President Jefferson, the author of the 

doctrine of separation of church and state, replied, ‘‘The principles 

of the Constitution and the Government of the United States are 

a sure guarantee to you that it will be preserved to you, sacred and 

inviolate, and that your institution will be permitted to govern 

itself according to its own voluntary rules without interference 

from the civil authorities. I salute you, Holy Sisters, with respect— 

friendship and respect. Thomas Jefferson, President of the United 

States.’’ 

The bishop concludes his article stating that apparently the U.S. 

Department of Health and Human Services is convinced that it has 

found a better interpretation of religious liberty than Thomas Jefferson. Now, Thomas Jefferson put it pretty well, and he talked 

48 

about the institutions that you have, in this case Catholic order of 

Ursuline, which do works of charity, hospitals, schools, et cetera, 

and we are told that they would be able to operate within their 

conscience without interference by the civil government. If this is 

not interference of the civil government, I know not what it is. 

Now, I realize some on the other side would say that Thomas Jefferson was not the writer of the Constitution, he only wrote the 

Declaration of Independence, but I would say that if you are trying 

to understand the Constitution, you have to read it informed by the 

Declaration of Independence, as Thomas—as Abraham Lincoln 

said. 

You know, we better call what is going on out here. This is an 

attack on religious liberty. There is an attempt by this Administration, first, to so confine the definition of religious liberty so that it 

is a right of worship. Religious liberty is so much more than the 

right of worship. And with all due respect, Doctor, I understand 

what the recommendations of your committee were, but I do not 

believe that you were charged with the responsibility of looking 

into the question of the conscience clause or the ability of religious 

organizations to practice religious freedom. 

There is a conflict here. There is no doubt about it. And the question is whether the government has the right to basically impose 

its thoughts and its tenets on those who do not believe, and mandate that they take actions that otherwise are contrary to their 

own witness. And if that is where we have come, we better understand and say it. But to suggest that some, including the former 

Speaker, said that this is merely an excuse, excuse of religious liberty, belies the seriousness of what we are about. 

Archbishop Niederauer also said in his article: It is about tea, 

British newspapers proclaimed in 1774 as Parliament passed a bill 

that closed Boston Harbor until the citizens of Massachusetts reimbursed East India Company for the tea that had been thrown into 

the Bay by American patriots. It is all about the tea. Of course, as 

he said, of course, it wasn’t about the tea at all; it was about a fundamental diminishment of liberty that would let American colonists to refuse to comply with a law that broached—breached the 

freedom which was theirs by right. 

With all due respect to those on the other side, who I take for 

their generosity of spirit and their sincerity, this is not about the 

issue you wish to make it. It is about the question of mandating 

people to act against their conscience at the punishment of the government with respect to a fine. That is pretty clear. That is pretty 

clear. 

I wish I had time for a lot of questions, but I just heard a lot 

of stuff asked that—including assumptions there, and I will just 

say this: I may not be the best Catholic in the world, but I am not 

embarrassed to be a Catholic, and I am not embarrassed that my 

church has certain tenets that I try to follow. And I will be darned 

if I have to give up my Catholicism to be a good Catholic. I think 

you can be both a good Catholic and a good American. And frankly, 

I don’t care if you are President of the United States, you have no 

right to come between me and my conscience. 

Mr. FRANKS. Thank you, gentlemen. 

And I now recognize Mr. Johnson for 5 minutes, sir. 

49 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Mr. Chairman, this hearing, to me, it smells more like politics 

than it does religion, and I think it is despicable when politicians 

use religion to effect a secular outcome, such as making President 

Obama a one-term President. And I believe that is all this is about. 

But I will ask Ms. Monahan—I don’t want you to feel like you 

have been left out of this discussion—what do you—I mean, I love 

Thin Mints, Girl Scout cookies. What was your gripe about Girl 

Scout cookies? 

Ms. MONAHAN. I don’t think I understand the question as it relates to this. This today is about religious liberties, that—— 

Mr. JOHNSON. Yeah, I know, but—so you are here. 

Ms. MONAHAN. It is an infringement—— 

Mr. JOHNSON. You are not here for the politics, you are here for 

religion? 

Ms. MONAHAN. Yes, sir, I am. With all due respect that is why 

I am here. 

Mr. JOHNSON. Let me ask you then, what about your organization, the Family Research Council? Is it concerned with politics? 

Ms. MONAHAN. Sir, the Family Research Council has a political 

action side, and it also has a policy side. Let me be clear that I 

am—— 

Mr. JOHNSON. Okay. All right. 

Mr. FRANKS. Let the witness answer the question, Mr. Johnson. 

Mr. JOHNSON. Well, this is my time. I will ask the questions. I 

want her to answer yes or no, and if I feel like she needs to explain, I will so ask her, with all due respect, Mr. Chairman. 

Mr. FRANKS. With all due respect, the witness should be allowed 

to answer the question. 

Mr. JOHNSON. Well, I can’t have a witness answering a question 

for 4 minutes and 30 seconds, filibustering me like I am being filibustered right now. This is my time. 

I mean, your organization, ma’am, sponsored a prayer-in, a prayer vigil, to stop people from buying Girl Scout cookies because you 

alleged that Girl Scout cookies is affiliated with Planned Parenthood; isn’t that correct? 

Ms. MONAHAN. Sir, I am not aware of any—— 

Mr. JOHNSON. You are not aware. 

Ms. MONAHAN [continuing]. Vigil that my organization has organized to stop people from buying Girl Scout cookies. 

Mr. JOHNSON. Well, I want to submit this document about the 

Family Research Council and its anti-Girl Scout cookie prayer vigil 

for the record, if there is no objection. 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 

50 

Mr. FRANKS. I would remind you that this is a hearing about the 

HHS mandate, not Girl Scout cookies. 

Mr. JOHNSON. But it is also a hearing about politics. That is my 

point. This is politics more than religion. 

I want to also place into the record a—looks like a press release 

from Family Research Council Action that is dated February 27, 

and it talks, among other things, about the Heritage Foundation, 

which we all know to be a Republican-oriented—— 

Mr. SENSENBRENNER. Will the gentleman yield? 

Mr. JOHNSON. I will not yield—— 

Mr. SENSENBRENNER. Mr. Chairman, I am reserving the right to 

object. 

Mr. JOHNSON [continuing]. At this time. 


73101C.eps
51 

And I also—— 

Mr. SENSENBRENNER. Reserving the right to object. 

Mr. FRANKS. The gentleman may be heard on his reservation. 

Mr. SENSENBRENNER. What does the Heritage Foundation have 

to do with this hearing? There is no witness here representing the 

Heritage Foundation, so they can’t answer it. 

Mr. JOHNSON. Well, if you listen to my question, I think you will 

find it relevant. 

Mr. SENSENBRENNER. No. Under the regular order, I have to decide whether or not to object, and I will, 

Mr. JOHNSON. Well, why don’t you observe your right to—— 

Mr. FRANKS. Objection is heard. 

Mr. JOHNSON. Reserve it until I finish my question. 

Then, among other things, this press release talks about the Heritage Foundation, which we all know which way they lean, and it 

also talks about a poll, a GOP Presidential poll. All of that is on 

one page. I want to put that into the record as well. This is—— 

Mr. SENSENBRENNER. Mr. Chairman, I object. 

Mr. FRANKS. The gentleman will state his objection. I am sorry. 

The objection is heard, sir. 

Mr. JOHNSON. Objection is heard? Well, I mean, are you objecting 

to me offering this for the record? 

Mr. SENSENBRENNER. The answer is yes. It is irrelevant. 

Mr. JOHNSON. Or what grounds? 

Okay. Well, how did you rule? How does the Chair rule on that 

objection? 

Mr. FRANKS. It can only entered by unanimous consent, and 

there is not unanimous consent. 

Mr. ISSA. Mr. Chairman, regular order. The time has expired. 

Mr. JOHNSON. Mr. Chairman, that cannot be—— 

Mr. FRANKS. The time is not expired. You have 45 seconds. 

Mr. JOHNSON. We cannot conduct our affairs like that. 

Mr. FRANKS. The gentleman will state his Parliamentary inquiry. 

Mr. DEUTCH. Mr. Chairman, is it common courtesy in this Committee for Members to be able to offer things into the record? 

Mr. FRANKS. That is not a Parliamentary inquiry. 

Mr. DEUTCH. I am questioning the Parliamentary procedure that 

we use here, Mr. Chairman. 

Mr. FRANKS. It is a courtesy, but not the rule, when an objection 

is heard. So the gentleman will proceed. The gentleman has 49 seconds. 

Mr. JOHNSON. Forty-nine seconds left. 

I will say that I guess you are here also to support the Family 

Research—the Respectful of Rights of Conscience Act of 2011. That 

the H.R. 1179, which would allow an employer or an insurer to 

refuse to provide coverage that is contrary to its religious or moral 

beliefs. 

Do you believe that an insurance company has a—is a person 

that can have a religious or moral belief, Ms. Monahan? That is not 

possible, is it? You know, an insurance company doesn’t have a 

soul, does it? 

Ms. MONAHAN. Mr. Johnson, did you want me to answer your 

question? 

Mr. JOHNSON. Yeah, I gave you time. 

52 

Ms. MONAHAN. We do support the Fortenberry bill. 

Mr. JOHNSON. But my question is is an insurance company capable of having a moral or religious belief? 

Ms. MONAHAN. To be clear, if a religious organization runs or is 

contracting with the insurance company, then yes, it is allowed to 

have certain mandates like that. 

Mr. JOHNSON. So what you are trying to do is escape—or is provide an insurance company from being able to escape an obligation 

to afford contraceptives without a copay. Is that what you are trying to do? 

Ms. MONAHAN. Congressman Johnson, I think we can agree to 

disagree. The real issue here is about religious liberty, and it is 

about people like me not having to pay $1,000 a year for drugs and 

devices that are going to cause abortions. The real issue here is 

about religious liberty. It is not about access to contraception; it is 

about religious liberty. 

Mr. JOHNSON. Well, why don’t you—— 

Mr. FRANKS. The gentleman’s time is expired. 

With that, I would recognize the gentleman from California Mr. 

Issa for 5 minutes. 

Mr. ISSA. Thank you, Mr. Chairman, hopefully 6 or 7 to be equally fair. 

Mr. JOHNSON. Well, I am going to object to that in advance now. 

I reserve the point of order on that basis. 

Mr. ISSA. No, that is only fair that you take 7 or 8 minutes. That 

is all right. 

Mr. FRANKS. He did go over 1 minute, Mr. Issa. 

Mr. ISSA. That is okay, I don’t need it. I will be fine. I only have 

questions. 

So, Bishop Lori, not taxing my non-Latin upbringing, Humanae 

Vitae, or Vita, depending upon which one, but I am not going there, 

On Human Life, 1968, excuse me, Pope Paul VI, on page—and I 

would ask unanimous consent this be placed in the record. 

Mr. DEUTCH. I object. 

Mr. FRANKS. Objection is heard. 

Mr. ISSA. Okay. In that case, since they are trying to silence a 

legitimate document of record, on page 9 it says, The church, on 

the contrary, does not at all consider licit the use of therapeutic 

means truly necessary to cure disease of organism, even if the implement—even if an implement to procreation, which—impediment 

to procreation which may be foreseen should result therefor, provided such impediment is not for whatever motive directly willed. 

Bishop Lori, I read it poorly; you know it well. What does that 

mean to you when it comes to providing any and all health provisions that are not specifically for the purpose of an abortion or specifically for the purpose of birth control, but rather for the health 

of the woman? 

Bishop LORI. Thank you very much. That is Humanae Vitae 

number 15, and that provision, together with the Ethical and Religious Directives of the U.S. bishops at number 53, recognizes that 

the same drug can have more than one effect. It recognizes that 

some of these contraceptive drugs can also have, of course, risks, 

but they also have benefits not related to the conception of new life. 

And if it is necessary for it to be administered for those other reaVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
53 

sons, in the Catholic healthcare plans that I am aware of, they are 

covered. 

Mr. ISSA. Sir, I just want to understand then. Anything that is 

not specifically for those purposes which are prohibited within your 

faith—and I am not Roman Catholic; I don’t have a problem with 

contraception, but I recognize your faith does—but as long as that 

is not the intent, your healthcare plans would fully cover that, and 

you would have no problem with living under a law that said, in 

fact, to prevent ovarian cancer, to deal with other problems that 

the same medicines might do, that is all fine. That would be covered within your plans, and you have no problem with it? 

Bishop LORI. That would be essentially correct. 

Mr. ISSA. Okay. I only wanted to establish it because it seems 

like a lot of people are trying to expand beyond what the Catholic 

Church and perhaps other faiths are interested in. 

Dr. Rosenstock, I want to go to you. You have been underheard 

from. Clearly, as a healthcare professional, you are here for that 

purpose. And I want to go through a couple of things. 

Clearly a number of drugs widely used by women ranging, if I understand correctly, from as few as $9 to—at Target for generic 

to hundreds of dollars can, in fact, be appropriate for a woman to 

prevent conceiving? Is that correct, that there is a range of products, and they are individualized for various people’s needs? 

Dr. ROSENSTOCK. Yes. 

Mr. ISSA. Okay. And if we had passed a law 2 years ago that specifically had the government simply pay for that so that it was fully 

covered by Federal appropriation, you would be all right with that, 

and you wouldn’t be here today; is that right? 

Dr. ROSENSTOCK. I am only here today to talk about the evidence 

that avoiding unintended pregnancies is healthy for women and to 

their care. 

Mr. ISSA. So if we were paying for it federally, if it was fully paid 

for, guaranteed, then you would have what you came here to talk 

about. In other words, the health considerations, it is really a question of are they going to be fully funded so that women do not deny 

themselves various medicines for various purposes that might, in 

fact, be therapeutically good for them? 

Dr. ROSENSTOCK. I can’t agree with that as written. We have to 

go back to the Affordable Care Act. There is a long list of preventive services that—— 

Mr. ISSA. No, but my point is if—ma’am, no, Doctor, please, because they are not going to give me extra time. If all of these medicines that we are talking about today, any of them that possibly 

could be objected to by any faith, if they were covered by the government fully with no deductible so that they would be fully available through ordinary health care, if it was a government 

healthcare plan, you wouldn’t be here today, you would be fine with 

it. That is what you are here saying women have a right and a 

need to; is that right? 

Dr. ROSENSTOCK. I disagree with the way that you are construing 

my presence. I am sorry. 

Mr. ISSA. Well, no, I am just trying to understand. 

Dr. ROSENSTOCK. I would like to explain, but you have cut me 

off. 

54 

Mr. ISSA. No, what I am trying to understand is if it is not—if 

the money were—if the drugs and the treatments were all available and not in any way connected to a church paying for them, 

then you would have what you want; is that correct? 

Dr. ROSENSTOCK. You are assuming I would want things that I 

don’t even understand your implication. But let me just go on—— 

Mr. JOHNSON. Mr. Chairman—— 

Mr. ISSA. My time is expiring. I would ask unanimous consent 

that the woman be able to continue and answer the question fully. 

Dr. ROSENSTOCK. I think it would make sense. My intent in 

being here is to provide the medical and scientific background for 

how a range of services—you have asked me to focus on one 

today—can improve women’s and children’s health, and why access 

to these have been demonstrated to do just that same thing. 

Mr. ISSA. Thank you. 

And, Mr. Chairman, I might note that I am a businessman. I 

came out of a business background, and Mark McCormack was one 

of the great people that I read. And he said something very profound in his books, which was that the difference between a problem and a business decision is a business decision is something 

money will solve; a problem is something money won’t. And I might say here today that it is very clear with over $2 billion spent in family planning, and certainly—by the Federal Government, and certainly more money able to be spent, we are to a 

great extent arguing over whether or not this is a decision that 

Congress can make and pay for, or whether we are creating a problem by ordering people of conscience to pay for it. 

I yield back. 

Mr. FRANKS. I thank the gentleman, and I now recognize Mr. 

Scott for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Bishop Lori, are you suggesting we can’t do this, or that it is bad 

policy to do this? 

Bishop LORI. I am sorry, say it again. 

Mr. SCOTT. Is your suggestion that this is bad policy to do this, 

or that the Congress cannot make—this Administration cannot impose this requirement? 

Bishop LORI. I would suggest that it is a violation of religious liberty, and I think a violation of religious liberty necessarily results 

in bad policy. 

Mr. SCOTT. But there is no question that the Administration has 

the power to make that regulation? 

Bishop LORI. I don’t know that it does. I think that remains to 

be adjudicated, but I believe it does not. 

Mr. SCOTT. Well, if the Catholic Church policy on contraception 

isn’t the only religious exemption, religious situation we have—the 

Christian Scientists, for example; Jehovah’s Witnesses have different healthcare, religious beliefs—should they be required to conform to the general law that applies to everybody else? 

Bishop LORI. I believe that as a matter of general principle, 

rights of conscience should be properly accommodated unless there 

is a compelling government interest, and if that compelling government interest is established, then I believe it should be carried forward in the least intrusive way possible. 

55 

Mr. SCOTT. Well, does this matter of conscience go not just to 

churches, but to any devoutly religious person, say, running a business? 

Bishop LORI. I believe it should be possible to establish and to 

run a business today, as it is. It is already possible to do that on 

Christian principles and to operate exactly that way, not only—— 

Mr. SCOTT. Are you suggesting—— 

Bishop LORI [continuing]. Believing what you believe in private, 

but also putting it into practice in your business life. 

Mr. SCOTT. Are you suggesting that a devoutly religious businessman running a business ought to have the—ought to have an 

exemption to apply to the requirement although the business has 

nothing to do with the religious, it is not a religious organization, 

it is just a regular business, a sporting goods shop? 

Bishop LORI. Well, I would put it this way: If the employees, the 

employer, and the insurer all agree to this, I don’t think there is 

a compelling governmental interest. 

Mr. SCOTT. You know, one of the problems I have is I am just 

too old. I am just too old, because when I was growing up, a lot 

of people had, as a matter of real conscience, White superiority, 

and they wanted exemptions. I mean, they were just offended by 

the civil rights laws that required restaurants to serve Blacks, hotels to have to rent rooms to Blacks. All of those were a matter of 

conscience; they didn’t want to. And you have the same situation 

here, where, as a matter of conscience—now, in the church, it is 

different. We are talking about a regular commercial enterprise. 

Should people have the right to exempt themselves from Title VII, 

employment discrimination? 

Bishop LORI. There is no law that we are talking about that allows us to discriminate against persons. If we are talking about the 

respect for rights of conscience, it lists specific items. It talks about 

items; it does not talk about classes of persons. And I would say 

that equating the church’s teaching on the sanctity of life and the 

beauty of human sexuality with racism is something I reject categorically and find quite offensive. 

Mr. SCOTT. The principle we have is it is a matter of conscience, 

and some people are devoutly—just have, as a matter of their inner 

soul, the racial discrimination. 

The EEOC ruled at one time that failure to give contraception 

to women would constitute employment discrimination based on 

gender if you had prescriptive drugs covering everything else. Is 

that still a good law? 

Mrs. UDDIN. No. That has actually never carried the force of law. 

The eighth circuit, which is the highest court to speak on this 

issue, ruled in 2007 that, A, the EEOC opinion does not carry the 

force of law; and secondly, it disagreed with the EEOC on the fact 

that the failure to provide contraceptives constitutes gender discrimination. 

Mr. SCOTT. Even though you have provided prescriptive drugs to 

everybody else? 

Mrs. UDDIN. That is correct. 

Mr. SCOTT. I Yield back, Mr. Chairman. 

Mr. FRANKS. Thank you. 

And I now recognize Mr. Goodlatte for 5 minutes. 

56 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

Ms. Uddin, am I pronouncing that correctly? 

Mrs. UDDIN. Uddin. 

Mr. GOODLATTE. Uddin, I apologize. 

Under the Administration’s compromise plan, insurance companies would be forced to pay the costs of mandated coverage. Won’t 

those costs be passed right back onto the very religious employers 

who objected to this policy in the first place? 

Mrs. UDDIN. Absolutely. I think it would take some sort of magical accounting to say that these drugs would somehow be provided 

at no cost. 

Mr. GOODLATTE. Bishop Lori, could you tell us a little bit about 

how Catholic schools, churches, charities and hospitals operate 

across this country, and how this mandate will affect these Catholic institutions? 

Bishop LORI. Sure. First of all, the four-part test for how religious you are in no way corresponds to the church that I represent 

and that I love. We are organized into dioceses, and into parishes, 

and into schools. They serve the general public. 

Most of our institutions are self-insured; not all of them, but 

many of them are self-insured. So what this means is, first of all, 

that this mandate is reaching in and telling us that we have to provide services against our teaching, either directly or indirectly. 

Now, if you are self-insured, you are a provider of services, educational, pastoral, charitable services, but then as an employer you 

have to go on the other side of the desk, and you have to provide 

services that are against your teaching. So you sort of become a 

countersign to yourself. So on the one hand, I am teaching, I am 

providing services all based on the faith of the church; and then as 

an employer, I am being asked to contradict what I teach because 

I am self-insured. And because I am also the insurer, because the 

Diocese of Bridgeport is self-insured, that means I am also having 

to pay for these proscribed services. 

So we are not talking about taxes here. We are not talking about 

government dollars. We are talking about church dollars going into 

this. And it is unfortunate that when the so-called accommodation 

was devised, nobody sat with the Catholic Church, or any other 

church for that matter, to ask the question, how do you actually 

work, and what do you actually need? 

Mr. GOODLATTE. So the HHS mandate has a very narrow religious employer exemption that does not exempt religious employers 

who serve nonbelievers. 

Bishop LORI. Uh-huh. 

Mr. GOODLATTE. But for the Catholic Church, isn’t part of your 

ministry serving all of those in need whether members of the 

church or nonbelievers in the Catholic faith; and if so, isn’t the 

mandate’s narrow religious employer exemption virtually meaningless? 

Bishop LORI. Absolutely. For example, in an inner-city Catholic 

school, it would be common that over half the children would not 

be Catholic. In Catholic charities, we serve in our diocese per year 

over a million meals to the homeless and the homebound. We don’t 

ask if they are Catholic, and we shouldn’t have to ask if they are 

Catholic. So the answer is, of course, we serve the common good. 

57 

Mr. GOODLATTE. Ms. Monahan, the Administration is straining 

to portray its contraception mandate as striking the right balance 

between religious liberty and public health. Yet employers with religious exemptions have only two options, pay crushing fines or 

make available procedures they consider grievous sins. Are the options equally limited for employees who want access to such services should their health plan not provide it? 

Ms. MONAHAN. The United States in fiscal year 2011 spent $2 

billion in public contraceptive services, public family-planning programs. So for these women that employers weren’t providing contraceptives, they could access Title X family planning. They could 

go to community health clinics. Nine out of ten employers in the 

United States, according to the Guttmacher Institute, right now do 

provide contraceptive services. So I think women in the situation 

as you mentioned would actually have more options than someone 

like me, who would, in fact, be forced to violate my conscience or 

to lose my health insurance. 

Mr. GOODLATTE. So this really is an issue of religious liberty and 

not of public health, and it is also an issue of the government determining the extent of that religious liberty. 

Ms. MONAHAN. I think so, because it is—the government could 

have looked at other possible ways to increase access if that was 

truly the bottom line, other than forcing groups that opposed these 

abortifacients and contraceptives to provide them. 

Mr. GOODLATTE. I agree. 

Thank you, Mr. Chairman. 

Mr. FRANKS. Thank you. 

I will now recognize Ms. Jackson Lee for 5 minutes. 

Ms. JACKSON LEE. Thank you very much, Mr. Chairman. 

At the outset I want to show respect to Dr. Rosenstock, and I am 

so glad that it is before 6:30 so that I can pose some questions to 

her. But, Mr. Chairman, I understand that Dr. Rosenstock needs 

to leave by 6:30, so might I ask that if Members have questions for 

her, they would be permitted to do so, or, if not, to submit their 

questions in writing. And I believe you are calling on me at this 

point, so I am up for my questions. But if other Members—— 

Mr. FRANKS. We certainly welcome written questions offered by 

the Members, and with that, please proceed. 

Ms. JACKSON LEE. Mr. Chairman, I am going to take an approach that welcomes this hearing, and I don’t mind and will enjoy 

participating in any number of hearings over and over again. I 

even applaud Miss—she pronounced the name, Uddin, because 

there may be occasions when I will be in the courts as well because 

of issues that I believe groups that I cherish or religious rights that 

we all cherish should be challenged. 

Bishop, I welcome your presence here, and welcome the fact that 

all of us, I think, have great respect for religious liberty. My faith 

is a faith that sees its challenges and welcome the opportunity to 

practice our faith without being fettered, in an unfettered manner. 

I would like to keep this for what I believe were efforts by the 

Administration to find a way to respect religious liberty and as well 

do something, Doctor, that is so very important. So let me focus on 

Dr. Rosenstock. 

58 

It seems like before I came in, you mentioned ovarian cancer, 

and I don’t want to take that lightly. Explain again the impact of 

this kind of access to contraception and examinations has on 

women and this devastation of ovarian cancer. 

Dr. ROSENSTOCK. Sure. This involved a discussion about the role 

that contraceptive medications can play outside of preventing unintended pregnancies for a host of conditions, including its known effect on reducing risk for ovarian cancer and being a mainline treatment for women with ovarian cystic disease. 

Ms. JACKSON LEE. And have you looked at the regulations that 

have been struck as a compromise to respond to the very valid concerns of religious liberty? Have you read those new regulations? 

Dr. ROSENSTOCK. I am aware of that. I am here representing the 

Institute of Medicine and our committee work, so I have really focused on the science and public health benefits of the recommended 

added screening. I certainly have reacted as a physician to the concept of broadening these accommodations to include employers of 

any type. 

What worries me as a provider is the potential to wreak havoc 

in the medical care system we now have. We are an employerbased, voluntary system largely. There are some employers who believe that vaccinations go against their beliefs; there are others 

who do not believe in blood transfusions. And I believe that opening the door so widely to these kinds of decisions would really have 

the potential of causing great ill health. 

Ms. JACKSON LEE. So you are seeing it from a different perspective, but let me get you focused back on contraception and the idea. 

How vital is it that we equate contraception to women’s general access to health care? What we are talking about here is women are 

constructed differently. They are blessed with the ability to procreate. How important is it that they have access to a wide breadth 

of health care? 

Dr. ROSENSTOCK. When we as a committee looked at all of the 

potential gaps that women had in preventive services, and believe 

me, we looked at tens, and there is already a long list, we came 

up with a relatively small list that meet our criteria that affected 

a broad number of women, that it was proven to be effective in improving and increasing health, and I can tell you that when—there 

is no single recommendation that met the high bar that family 

planning does. The evidence is extraordinary. This is settled 

science. CDC called it, you know, one of the great achievements of 

the last century that we have family planning. 

By the way, their top was vaccination, so I don’t think it is irrelevant to think about other—— 

Ms. JACKSON LEE. Let me interject here for a moment because—— 

Dr. ROSENSTOCK. Yeah. 

Ms. JACKSON LEE. Let me just interject for a moment. I appreciate your answer. But I ask unanimous consent to put into the 

record the revised compromise, which specifically states, Mr. Chairman, that there will be now an exemption of group health plans 

and group health insurance coverage sponsored by certain religious 

employers from having to cover certain preventative health services 

under the provisions of the Patient Protection and Affordable Care 

59 

Act, which is what the doctor is talking about. It may be broad, but 

it does, I believe, answer the question of our religious institutions, 

that they do not have to cover individuals. We may have an agreement or disagreement, but the government did try to adhere to religious freedom. 

Mr. SENSENBRENNER. Reserving the right to object. 

Ms. JACKSON LEE. Excuse me? 

Mr. SENSENBRENNER. Reserving the right to object. 

Mr. FRANKS. The gentleman will state his objection. 

Mr. SENSENBRENNER. Does the document that the gentlewoman 

from Texas proffers to include in the record state what the contours 

of this exemption would be, or is this something that is to be determined within the next year before the exemption regulation is finalized? 

Ms. JACKSON LEE. In my interpretation of the document, it is 

clear that it lays out some ground rules on the contours, with the 

allowance, as all Federal regulations do, for further discussion and 

amendment, and I would ask unanimous consent for this document 

to be added into the record. 

Mr. SENSENBRENNER. Further reserving the right to object. Is 

what the gentlewoman proffers a final regulation that is binding on 

everybody, or is this just a discussion point for a final regulation 

between now and sometime in the future? 

Mr. QUIGLEY. Will the gentleman yield? Is that proper for him 

to ask during this moment, Mr. Chairman? 

Mr. FRANKS. Really I don’t think it is. I think he has the floor 

to state his objection. 

Mr. SENSENBRENNER. Will the gentlewoman from Texas answer 

my question? 

Ms. JACKSON LEE. I am delighted, Mr. Sensenbrenner, because 

I think as a constitutionalist, as I have known you to be, this is 

a final rule printed in the Federal Register. It is a public document. 

And there will be other additions to it, but this can be considered—— 

Mr. SENSENBRENNER. Well, further reserving the right to object, 

how is this final rule published in the Federal Register different in 

any respect from what was an interim rule that was published last 

August? 

Ms. JACKSON LEE. Well, I would like to pose a question in answering the question, Mr. Sensenbrenner, is that we are here in 

this hearing room talking about the rule. What is the objection to 

indicating and submitting this rule for the record? 

Mr. SENSENBRENNER. Well—— 

Ms. JACKSON LEE. If we seek to have a clear understanding of 

what we are discussing—— 

Mr. SENSENBRENNER. Well, further reserving the right to object. 

Mr. FRANKS. The gentleman will state his objection. 

Mr. SENSENBRENNER. I don’t think the gentlewoman from Texas 

has answered any of these questions, and I withdraw my reservation. 

Mr. FRANKS. So without objection, it will be entered into the 

record. 

Ms. JACKSON LEE. Mr. Chairman, let me thank the gentleman, 

and I conclude by saying I think I have answered them, but I 

60 

thank him for his courtesies. And I would like unanimous consent 

to put this into the record, sir. 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 


73101D-1.eps
61 


73101D-2.eps
62 


73101D-3.eps
63 


73101D-4.eps
64 


73101D-5.eps
65 

Ms. JACKSON LEE. I thank you, and I yield back. Thank you, Doctor, very much. 

Mr. FRANKS. The gentleman from Iowa, Mr. King, is recognized 

for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. 

I thank the witnesses for your testimony. I just want to make my 

comment here, and that is that I am listening to the legal discussion that has taken place, and I listened to the banter that went 


73101D-6.eps
66 

back and forth between the gentlelady that went to the University 

of Chicago whose name I can’t read from here, sorry about being— 

but I will direct my question to you, and that is, I listened to that 

banter go back and forth, and you were talking about HosannaTabor case, and as the discussion went back about a precedent supposedly out of the State of California, and I just wanted to express 

to you that I am a little troubled by us being drilled down into 

something like that. 

When I look back in this course of history, and I think of what 

I recall happening, Murray v. Curlett that took prayer out of the 

public school, I was a freshman in high school, and I asked at the 

time, what are they going to do to stop us from praying in the public school? Are they going to close the school and chain the door 

shut? But we didn’t have the civil disobedience to proceed with 

what our conscience told us was the right thing to do. We submitted and essentially capitulated to a Supreme Court decision because we deferred to them. As an American society and an American culture, we deferred to the Supreme Court because we believed they wore black robes and they were right. 

A little bit later than that, and it was referenced, the 1965 case 

of Griswold, Griswold v. Connecticut, at that time it was unlawful 

to provide contraceptives in the State of Connecticut. And it went 

to the Supreme Court, and the Supreme Court concluded that it 

was not only—that it was no longer—that it could not be prohibited 

to provide contraceptives to married couples in Connecticut. 

And so now we have this right to privacy that was manufactured 

by the Supreme Court in 1965, and in 1972, the Eisenstadt case 

came out, which is everybody has got an equal right to contraceptives, not just married couples. And then of course 1973, Roe v. 

Wade and Doe v. Bolton, that the two of those together established 

this supposedly constitutional principle that everybody has a right 

to abortion on demand no matter what the circumstances. And the 

only rollback to that in all that period of time is the Stenberg v. 

Carhart case that finally, after appeal—and we sat in this Judiciary Committee and we wrote the ban on partial-birth abortion. Finally, the Supreme Court upheld at least some restraint, that you 

couldn’t take the life of a baby that was almost ready to fill its own 

lungs with air and scream for its own mercy. That is what we have 

accomplished in this Court. 

And now I am sitting here listening to this discussion and this 

argument, and I am thinking there was a time when it was unlawful in Connecticut to even provide contraceptives, and this discussion is about whether or not the President of the United States can 

step forward in a press conference and announce that he is issuing 

an order by Presidential edict, legislating by press conference, that 

he is going to compel health insurance companies all over America 

to provide contraceptives, abortifacients, and sterilizations without 

charge. 

This is how far we have come in my living memory. And I am 

sitting here listening to this debate and discussion, and I am hearing the minutia that has been discussed between you and Mr. Nadler, and I am asking you why should I care what they think in 

California? In fact, why should I care about the conclusions that 

have been brought forward by the Supreme Court if we can race 

67 

from 1965, Connecticut having a 10th Amendment right to establish a policy, a Supreme Court that creates a right to privacy that 

is a foundation for mandated abortion, and here we are discussing 

whether we are going to mandate everybody in America—— 

Ms. JACKSON LEE. Would the gentleman yield? 

Mr. KING [continuing]. That contraceptives—— 

Ms. JACKSON LEE. Will the gentleman yield? 

Mr. KING. No, I will not yield. I have a question for the 

gentlelady, and it is posed at this point. Why should I care? 

Mrs. UDDIN. The Becket Fund does not take any position on contraception. We don’t seek, our clients do not seek for it to become 

illegal, and we ourselves absolutely have no position on whether or 

not contraceptives or abortion should be legal or illegal. 

And one thing that I am hearing from you, that there is this bedrock principle that protects broad liberties, and in this case we are 

talking about religious liberty. And so whether we are talking 

about general principles or we are getting into the weeds, that particular principle is consistently protected. 

Mr. KING. But if I could ask you, and just certainly respectfully, 

that we have come this far with this giant leap of the Supreme 

Court from at a point when there was a statute that allowed protection for the religious liberty of the citizens of Connecticut with 

Griswold to the point now where we are actually having a discussion about whether or not the President of the United States can 

stand before a press conference and order that there shall be contraceptives provided by health insurance companies. The constitutional question of religious liberty is wrapped up in that, and I just 

ask you from your perspective, do you understand how far this 

country has gone with the distortion of the clear language of the 

Constitution in the 40 years or so that I can remember that I have 

noted? 

Mrs. UDDIN. I understand the historical and legal trajectory that 

you are drawing, but I just want to focus on the issue of religious 

liberty without respect to the broader question of the legality of 

contraception and abortion, because that is what I am here to 

speak about. 

Mr. KING. Then if the Chairman will indulge me in restating my 

question, and that it does come back to is there any protection for 

us in this Constitution? I understand the point that you are making, but my point is that there has been such a progression and 

distortion from the clear language of the Constitution and manufactured principles—— 

Ms. JACKSON LEE. Regular order, Mr. Chairman. 

Mr. KING [continuing]. And the emanation and penumbras that 

now are before this Congress deciding whether there is a constitutional authority of the President of the United States to order a 

mandate by press conference. Is that constitutional, do you believe? 

Ms. JACKSON LEE. Regular order, Mr. Chairman. Are you yielding him additional time? 

Mr. FRANKS. You may answer the question. 

Mrs. UDDIN. One thing I just wanted to point out is that this 

particular case dealing with the HHS mandate and its narrow religious exemption, if allowed to go forward, would open up the doors 

to so much more. 

68 

And earlier someone had asked me about this, and to focus the 

question a little bit more on the health care arena, I just wanted 

to point out the State of Washington recently decided to pass a 

healthcare mandate that would cover the cost of abortion. And so 

certainly we have come a long way, and depending on how the religious liberty aspects are handled here, we will continue to move in 

even more extreme decisions—extreme directions. 

Mr. KING. I thank the witness, and I thank the Chairman. I yield 

back the balance of my time. 

Mr. FRANKS. I thank the gentleman. 

We recognize that Dr. Rosenstock will have to leave very shortly, 

so, without objection, Members who have not been recognized for 

questioning thus far will be recognized for not more than 1 minute 

to question Dr. Rosenstock, and that time will be deducted from 

their 5 minutes when we resume regular order. Is there objection? 

Who seeks recognition for the limited purpose of questioning Dr. 

Rosenstock? 

Mr. Quigley, you are recognized for 1 minute. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Doctor, the question or the point was made earlier that this plan 

includes abortion-inducing drugs. From a medical definition point 

of view, does this plan include medical-inducing—abortion-inducing 

drugs? 

Dr. ROSENSTOCK. This plan includes all FDA-approved contraception methods. I just want to say, again, the committee did not consider abortion. It was considered beyond the scope of the mandate, 

given the constraints within the Affordable Care Act, and the recommendations were meant to recognize that there is no one-sizefits-all for women; that it was important that the broad array of 

approved FDA contraceptive methods and devices be offered, recognizing that these are often decided by an individual woman with 

her physician. 

Mr. QUIGLEY. But the American College of Obstetrics and Gynecology’s definition of what a pregnancy is, the Plan B does not end 

a pregnancy, correct? 

Mr. FRANKS. The gentlelady can answer. The gentleman’s time 

has expired. Please feel free to answer. 

Dr. ROSENSTOCK. Yes. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Mr. FRANKS. With that, I would recognize Mr. Gowdy for 1 

minute. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Dr. Rosenstock, thank you for your time, and I am going to ask 

these as quickly as I can. I have four. 

Can the President make people exercise if HHS decides that they 

are obese? 

Dr. ROSENSTOCK. I think, as is true of this plan, these are recommendations. No one is mandating that individuals have to use 

family planning. What it is saying is if an individual decides—— 

Mr. GOWDY. No, but they are mandating that it be provided by 

people when it violates their conscience. So what I am trying to get 

at are what are the limits of governmental authority? Can they 

make smokers stop because that impacts what the rest of us pay 

in healthcare premiums? 

69 

Dr. ROSENSTOCK. I have to disagree with the analogy. I believe 

the individual here is the individual patient or woman making a 

choice about what to do. That is different from an employer-based 

or religiously affiliated—— 

Mr. GOWDY. Well, that leads to this question. If our colleagues 

on the other side of the aisle are so convinced that this is a fundamental integral right, why have they not proposed a bill where 

Congress pays for this and not make people pay for it when it violates their conscience? 

Dr. ROSENSTOCK. Well, again, if we look at the coverage in the 

United States, all Federal employees have this coverage, all Medicaid patients have this coverage, all Title 10 clinic users have this 

coverage. So, in fact, I believe Congress has over and over again 

made this decision. 

I want to sort of remember what George H. Bush said when he 

was Congressman in 1972 before being President, he said if family 

planning is anything, it is a public health matter, and I believe 

that is what—— 

Mr. GOWDY. And that trumps the free exercise of religion; did he 

say that? 

Dr. ROSENSTOCK. I certainly did not say that. 

Mr. FRANKS. The gentleman’s time has expired. The gentlelady 

may answer the question. 

With that, I recognize Ms. Chu for 1 minute. 

Ms. CHU. Thank you. 

Dr. Rosenstock, in my home State of California and the State of 

New York, both have requirements that are essentially equal to the 

HHS rule with exemptions for religious employers, and in both 

States the laws were challenged by religiously affiliated entity 

Catholic Charities, which provides secular services to people of all 

backgrounds, and both State supreme courts upheld the contraceptive coverage requirement. In the California case, the court found 

that the government had a compelling interest in eliminating gender discrimination in the healthcare industry. At the time, women 

paid 68 percent more in out-of-pocket costs than men. 

So, Dr. Rosenstock, do women still pay more in out-of-pocket 

costs today, and do you believe the HHS rule will help eliminate 

this gender discrimination in health care? 

Dr. ROSENSTOCK. I certainly believe, as I tried to say, that 

women per service may not be paying more costs, but they use 

these services more because of their distinctive reproductive and 

gender-specific capacities. And, again, I embrace what is happening 

in California because I think it shows how an accommodation to religion can work side by side with an overall proven health benefit. 

Mr. FRANKS. The gentlelady’s time has expired. 

I now recognize Mrs. Adams for 1 minute. 

Ms. ADAMS. Thank you. 

Dr. Rosenstock, I have been listening in great amazement here. 

You said that your committee met. Was that open to the public? 

Dr. ROSENSTOCK. Yes, absolutely. 

Ms. ADAMS. It was open to the public, and all the transcripts are 

available to the public? 

Dr. ROSENSTOCK. We do have some closed sessions in the—which 

is—— 

70 

Ms. ADAMS. So not all of the meetings were open to the public 

then? 

Dr. ROSENSTOCK. Right, and that is the way the Institute of Medicine—— 

Ms. ADAMS. Well, I have 1 minute, so I am going to make sure 

you don’t filibuster me. 

Dr. ROSENSTOCK. Every single meeting had an open session, let 

me just be clear. 

Ms. ADAMS. I asked you if it was completely open to the public. 

You said some meetings were closed-door. That is the answer I am 

asking for. It is just quick question and answers because I know 

you are leaving, and I want to get my answers in—or questions in. 

So you have had some closed-door meetings, and can I ask, at 

anytime did you consider any conscience clause or religious exemptions when you were discussing, making—having these discussions? 

Dr. ROSENSTOCK. No, we did not. 

Ms. ADAMS. So you believe that it is okay to infringe upon religious liberties and violate the First Amendment based on—— 

Dr. ROSENSTOCK. I wholeheartedly disagree, and I find it offensive that you would put that word in my mouth. What I said was 

we looked at the science and the health effects that proved—— 

Ms. ADAMS. Okay. Let me ask you this: Can we see the closeddoor documents, that information that was taking place? 

Dr. ROSENSTOCK. You can certainly see whatever the Institute of 

Medicine and the National Academy of Sciences provides—— 

Ms. ADAMS. I would ask that the Chairman request those documents, transcripts of the closed meetings, be provided to this Committee, and I yield back. 

Mr. FRANKS. I am going to take that under advisement. The 

gentlelady’s time has expired. 

Is there anyone else who seeks recognition? 

The gentleman is recognized. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Dr. Rosenstock, I wonder if you are concerned; if any employer 

can object to the inclusion of any preventive services based on the 

religious liberty argument, are you concerned about the impact 

that that may have in limiting coverage for vaccinations, for immunizations, or prenatal care, or blood transfusions, or perhaps even 

hospital coverage? 

Dr. ROSENSTOCK. Absolutely. I think that is the slippery slope by 

opening up that door. 

Mr. DEUTCH. How would it do that, Doctor? 

Dr. ROSENSTOCK. Well, it could do that because employers could 

have expressed beliefs, personal beliefs, moral objections to—— 

Mr. DEUTCH. And even religious beliefs? 

Dr. ROSENSTOCK. That is correct. 

Mr. DEUTCH. Thank you. I yield back. 

Mr. FRANKS. Who else seeks recognition to question Dr. 

Rosenstock? 

The gentlelady from California is recognized for 1 minute. 

Ms. WATERS. Thank you very much. 

I understand that perhaps about 14 percent of women, American 

women, use oral contraceptives for reasons other than preventing 

71 

pregnancy. Is this a known fact, and is it about 14 percent, or are 

there other reasons why American women would want to use contraceptives other than preventing pregnancy? 

Dr. ROSENSTOCK. That is absolutely right. That is correct. 

Ms. WATERS. And if there is exemption for all contraceptives for 

whatever reason, these women that would be using contraceptives 

for other reasons would be denied the use of them if we exempt 

blanket exemption? 

Dr. ROSENSTOCK. I think that could certainly be a potential, depending on how that exemption was crafted. 

Ms. WATERS. Thank you very much. 

Mr. FRANKS. Thank the gentlelady, and, Dr. Rosenstock, thank 

you very much. 

The gentleman from Texas is recognized for 1 minute. 

Mr. POE. Dr. Rosenstock, I am probably the last one to question 

you. Thank you also for your attendance here today. 

You mentioned slippery slope. Do you see a slippery slope when 

the government comes in and says, we are making this decision in 

the name of public health that pork is better for you than beef, and 

therefore we, the government, mandate pork upon the community 

instead of beef? I mean, you don’t see a slippery slope of the government coming in, as my good friend Mr. Gowdy said, from South 

Carolina, starting to regulate the food we eat all in the name of the 

government saying we have to do this? You don’t see that as a slippery slope? 

Dr. ROSENSTOCK. I don’t actually. 

Mr. POE. Okay. Well, we disagree on that one, too. 

I yield back. 

Mr. FRANKS. Thank the gentleman. 

Again, Dr. Rosenstock, thank you. 

Dr. ROSENSTOCK. Thank you for the opportunity. 

Mr. FRANKS. Since in the regular sequence it would be my turn 

to ask questions, I will go ahead and take that time now. 

I would like to follow up, if I could, Ms. Uddin, with a question 

that Mr. Goodlatte formed, just fpr a little clarification. The HHS 

mandate has a very narrow religious employer exemption that does 

not exempt religious employers who serve people of other faiths. So 

the President requires that you, in a sense, discriminate in providing services to get this exemption, to get his exemption. But 

serving people of other faith is often a core purpose of many religious persuasions. It certainly is a core tenet of Christianity. 

If a religious group changes their behavior to serve only believers, thereby meeting the President’s criteria, then that group would 

disqualify itself from receiving most Federal money, such as money 

for faith-based initiatives, because the Federal funding requires 

that the religious recipients of funds serve all people rather than 

discriminate. So what we have here is a situation where the President is saying that you can either be true to your faith and be 

stripped of Federal faith-based funding, or you can violate your 

conscience and faith and continue to participate in these faithbased programs, it appears to me. In order to meet his criteria, you 

have to essentially make it impossible for you to qualify for other 

faith-based initiatives. 

72 

So am I correct in comporting that the President’s exemption criteria would force the Catholic Church to stop participating in faithbased initiatives based on the faith-based initiatives criteria? 

Mrs. UDDIN. I think you are correct in noting that there are a 

number of complicated consequences to the way that this religious 

exemption is laid out, and even including the safe harbor rule, 

which gives religious organizations with objections an additional 

year to comply with the mandate. But that doesn’t take away the 

fact that there are a number of other transactions in which these 

same religious organizations would have to certify that they are in 

compliance with all Federal law, and how does that work? In the 

case of the safe harbor, the fact that they are both being asked to— 

the same way you can have the safety net, but at the same time 

essentially, be in violation of Federal law. 

Mr. FRANKS. Well, it seems clear that you would have to kind of 

choose between the two. On the one hand, you couldn’t serve nonbelievers, as it were; on the other hand, you must in order to qualify. So it is an incredibly complicated scenario. 

Ms. Monahan, the President has promised an accommodation, we 

have heard a lot about that today, and yet you testified that no 

written corresponding changes have been made to the regulation to 

reflect this promised accommodation. So in truth the President has 

really not made good on his promise at all. He did a great job holding a press conference to announce that he was supposedly fixing 

the discrimination against religious groups with an accommodation 

when, in fact, the accommodation does not yet exist actually at all; 

is that correct? 

Ms. MONAHAN. There is no accommodation. According to the Federal Register issued on February 15, it reads, Accordingly, the 

amendment to the interim final rule with comment period, blah, 

blah, blah was published in the Federal Register on August 3, 

2011, is adopted as a final rule without change. 

Mr. FRANKS. So there is really no accommodation at all here, 

which is astonishing. The President says that he promises he will 

follow through on this accommodation only after the election, which 

is not only convenient, but fascinating since he may be more prescient than the rest of us to know whether he will actually occupy 

the White House after the election. 

So leaving aside the much-heralded accommodation that does not 

actually exist yet and would have little or no effect even if it did, 

as we have heard in the testimony, does the religious community 

have any reason to believe the Administration’s promise in this 

area, given its track record so far? 

Ms. MONAHAN. I think that many people of faith and a growing 

number of evangelical and Catholics who have supported the Administration are waking up to see that the President is—you know, 

to this harsh reality that he has chosen to impose a liberal ideology 

onto these people, and that we cannot trust this promise. 

Mr. FRANKS. Thank you. 

Mrs. Uddin, one argument the proponents of the mandate have 

used to justify this infringement of religious freedom is that the 

polls show that a majority of Americans are in favor of access to 

birth control. But, setting aside the flawed logic necessary to go 

from favoring access to some forms of birth control to mandating 

73 

coverage of abortifacients, in a Republic public opinion cannot or 

should not trump constitutional rights, and it seems a patently 

false and deceptive rhetorical gimmick for the President to portray 

this debate as one over access to contraceptives. So under our Constitution, simply because there is a majority that might want to access, can this trump the constitutional right of freedom of religion, 

and aren’t we really talking about something that would force people to go against their conscience and actually pay for something 

for others? 

Mrs. UDDIN. Absolutely. Our constitutional and religious liberties 

are based on protection of the minority views, and that is the 

premise of our case. That is exactly what is happening; there is a 

need to protect the minority view. As you note, the majority doesn’t 

trump the minority, and the minority doesn’t trump the majority. 

Each should be capable of being able to practice their religion as 

they see fit. 

Mr. FRANKS. I thank the gentlelady, and I think, Mr. Quigley, we 

will recognize you now for 4 minutes. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

We probably butchered your name all day long. Could you please 

make sure we pronounce it correctly. 

Mrs. UDDIN. Yes. It is Uddin. 

Mr. QUIGLEY. Uddin. Some of us got it right. Out of respect, and 

thank you for being here. 

You mentioned the complications and the slippery slope that has 

been talked about. Can you see that there is an argument on the 

other side, though, especially if we go into the private sector and 

let private-sector employers decide because of their religious conscience they can’t provide certain healthcare issues, how that could 

complicate matters and infringe upon the religious rights and 

healthcare rights of their employees? 

Mrs. UDDIN. Well, I mean, there has been a number of different 

hypotheticals that have been posed, though earlier posed by Congressman Deutch and Congresswoman Waters that this idea of 

where do we draw the line, and how is this going to stop, and there 

will be endless amounts of conscientious objections. But it completely overlooks the fact that we have an existing jurisprudence 

that takes care of that and that strikes a balance and has a legal 

test that allows us to determine the cases in which religious rights 

trump other rights and vice versa. 

Mr. QUIGLEY. But in the end the courts are testing something. 

I mean, we don’t just leave out it there; there would have to be 

some rule promulgated that would detail what they have to cover 

or what they don’t have to cover that would then, as you say, be 

tried in the courts. Someone has to make those decisions. So trusting courts throughout the land to finally go to the Supreme Court, 

somebody has to make this call. So just to rely upon the courts, I 

don’t know that that necessarily makes sense. 

Can’t you see, though, the complications involved, and you know 

the diversity of our religious beliefs, and we respect all of them. 

Don’t you see how those folks’ opinions could at some point infringe 

upon other people’s basic rights? 

Mrs. UDDIN. I mean, the reality is the right to religious liberty 

is not something that is new. In fact, what is new is that the narVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
74 

rowness of this exemption is unprecedented in Federal law. And we 

haven’t seen any major slippery slope problems before, and I am 

not sure why we would see—— 

Mr. QUIGLEY. With the 28 States that have already allowed this, 

do you see this as causing the chaos that you describe now? 

Mrs. UDDIN. No. I mean, the 28 States that allow it or demand 

the coverage of contraception are completely distinct from this situation. For one, the sort of primary threshold difference is the fact 

that the exemption language in the HHS mandate simply gives discretion to HRSA officials to determine whether or not they are 

going to give an exemption, whereas in States that have exemptions, they are required to give that exemption. And furthermore, 

the State mandates provide several avenues for religious employers 

to opt out of the system, I mean, if they are self-insured or they 

offer ERISA plans. 

Mr. QUIGLEY. Well, we are going to argue—disagree on the range 

of what they offer, and I think, with all due respect, you take that 

as a definitive that is that different from the Federal mandate. But 

I need to, with such a short time, move on to the bishop. 

Bishop, getting back to the point that you talk about the 

healthcare exception, when the drug is used for other purposes in 

the discussion you had with Mr. Issa, does that also, in your mind, 

include the healthcare reasons for spacing out pregnancies for 

healthcare reasons or not for having another pregnancy at all? 

Bishop LORI. When the contraceptive is used to prevent the conception of new life, then it is against Catholic teaching, and then 

it would not be covered for the reason of preventing the conception 

of new life. 

There are, of course, other ways to space out pregnancies other 

than contraception, and, for example, natural family planning is 

one of those ways to do that. You laugh at it. 

Mr. QUIGLEY. I am not laughing at it. 

Bishop LORI. Yes, you are. 

Mr. QUIGLEY. I am respecting your opinion. 

Bishop LORI. You are. And I think that our reasoning here is 

nuanced and, I think, solid. 

Mr. QUIGLEY. And please, if I might be allowed to respond to the 

bishop, Mr. Chairman. 

Mr. FRANKS. The gentleman, without objection, is allowed an additional minute. 

Mr. QUIGLEY. Bishop, I respect your views. I just differ with the 

effectiveness there. And what we are talking about when somebody 

like this where the potential life of the mother is at stake, I would 

respectfully differ and have heard—what came to mind were the 

jokes in reference to parents who practice natural birth control and 

its effectiveness, but I just want you to know I meant no disrespect. 

Bishop LORI. Thank you. 

Mr. FRANKS. Just for the record here, sometimes I think we get 

lost in this debate here. On the one hand, the argument is made 

that everyone should have access to birth control, and the bishop 

is not trying to force anyone not to have access. In this case they 

are trying to force the bishop to pay for it. There is a difference. 

So with that, I would now recognize the very patient gentleman 

from Texas Mr. Poe for 4 minutes. 

75 

Mr. POE. Thank you, Mr. Chairman. 

I don’t know how patient I have been, but thank you all. It has 

been a long day for you. 

This country was founded on religious freedom. People came 

here, risked their lives from all walks of life to come here for religious freedom. And this country has religious freedom, in my opinion, like no other country. It not just one religion, it is all religions. 

Protection of religious freedom is in the First Amendment. I think 

it is in the First Amendment because the First Amendment is the 

most important amendment. It covers four issues, and two of those 

have to do with religion. 

Bishop Lori, I appreciate your patience. One thing that I would 

like to ask you. In all of your career, in your life, in your life experiences, did you ever think you would see a situation where the 

government was pressing government will and denying religious 

freedom to the church? 

Bishop LORI. That is just the point. That is just why I am here. 

We are crossing the Rubicon. I can never think of any other instance where the Federal Government has reached in and forced a 

religious organization to provide and, indeed, pay for something 

that violates its religious tenets. This is crossing the Rubicon. This 

is violating a principle in a way that it has not been violated before, and that is very much why I am here. 

Mr. POE. Did you ever think it would come to a point in this 

country that we would be having this debate as to whether or not 

the Catholic Church and others would be forced by the government 

to do something that violates their religious beliefs? Did you ever 

think it would come to this in our country? 

Bishop LORI. No. We have had a fine accommodation that has 

been a part of Federal law for a long time. I think religious groups, 

not just the Catholic Church, have relied on these provisions in 

Federal law. I think we had assurances when healthcare reform 

was under way that we would have those kinds of conscience protections, and now we see them going away. 

Mr. POE. In your opinion, is it for the government to decide 

whether government action violates religious liberty, or is it for the 

church, or the denomination, or the religious community to decide 

if government action violates religious beliefs? 

Bishop LORI. What is disturbing in this whole debate is the attempt on the part of government to make religion fit into its own 

narrow definition. That definition does not describe who we are, 

and any attempt to delimit the mission of the church is, in our 

view, a great violation of religious liberty. But we should define our 

own mission, and it should be for the government to accommodate 

that mission unless there is a compelling governmental interest not 

to do so, and even then it has to be done by the least restrictive 

means possible. 

Mr. POE. My time is up. I yield back. 

Mr. ISSA. Would the gentleman yield? 

Mr. POE. I yielded back. 

Mr. FRANKS. You use your time very well, Mr. Poe. 

I now recognize the gentlelady from California Ms. Waters for 4 

minutes. 

Ms. WATERS. Thank you very much. 

76 

Mr. Chairman, I note that a lot of the discussion today centers 

around the accusation that the Administration is forcing religious 

institutions and organizations to violate their beliefs and forcing 

them to pay for contraceptive coverage. Now, if I understand it, the 

Administration backed off, and the Administration is not forcing 

the church or religious organizations to violate their religious beliefs; is that correct, Bishop? 

Bishop LORI. I do not think it is correct. I believe that the rule, 

the HHS interim final rule, as proposed in August of 2011, remains 

on the Federal register unchanged. There is perhaps—— 

Ms. WATERS. Bishop—if I may, Bishop—— 

Bishop LORI [continuing]. Promise of—— 

Ms. WATERS. The Catholic Health Association said it was very 

pleased with the White House announcement that a resolution has 

been reached that protects the religious liberty and conscience 

rights of Catholic institutions. The framework developed has responded to the issues we identified that needed to be fixed. The 

Catholic Charities made a statement; Reverend John Jenkins, 

president of University of Notre Dame, made a statement; Catholics United made a statement. It is almost as if—— 

Mr. LUNGREN. Will the gentlelady yield on the quote from Notre 

Dame? 

Bishop LORI. May I respond to this? 

Ms. WATERS. On my time, please. I am not yielding. 

Mr. LUNGREN. I wouldn’t either if—— 

Ms. WATERS. It is almost as if nothing has happened, and the 

Administration has not said or done anything that is being recognized here, and I want to just put that on the record. I understand 

that there are some organizations that may or may not be in the 

description of a religious organization purely, and they have time 

to continue to work with the Administration to work this out. 

Now, having said that, if, in fact, you have women in a religious 

organization that says, I want to have contraceptives, and you don’t 

have to pay for them, the government is not making you pay for 

them, you are self-insured, et cetera, et cetera, but there is a thirdparty insurance company that is offering me and these five other 

women in the workplace contraceptives, would you prevent that? 

What would you say to that employee? 

Bishop LORI. Since I am self-insured, it would be myself or, rather, the diocese of Bridgeport that would be called upon to provide 

the contraceptive, and therefore we would be going against our own 

teachings. 

Ms. WATERS. No, what I am saying to you, Bishop, is this: That 

the women in the workplace say to you, and the government and 

everybody else says to you, that, okay, you are self-insured, you 

don’t have to do that, we are not going to ask you to violate anything. But here are these women who work for you, and they are 

saying, there is another insurance company out there who will take 

care of us. You don’t have to pay for it, we understand that. We 

are not asking you for anything. We just want the right to exercise 

our freedom. 

Bishop LORI. If they wish to obtain those so-called preventive 

services in some other way apart from the church that does not in 

any way implicate the church, that is something I would not even 

77 

inquire about and probably not know about. For example, it was 

entirely possible that these so-called services are obtained through 

the health insurance plan of one’s spouse or might be obtained 

through private payment. That I probably would not even know. 

There would be no need to ask me about that. 

Ms. WATERS. That is good to know. So I feel comfortable that 

women in the workplace would not have their jobs jeopardized in 

any way if they received support for contraception from—contraceptives from a third party? 

Bishop LORI. If it in no way implicates the church, I would not 

even know about it, and so it is really a moot question. 

Mr. FRANKS. The gentlewoman’s time has expired. 

I now recognize Mr. Gowdy for 4 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

It strikes me that there are three overarching questions: Number 

one, can government force citizens to accept certain religious beliefs; number two, can government prevent citizens from holding 

certain religious beliefs; and thirdly, Mr. Chairman, can government decide which religious beliefs are acceptable and which are 

not? And I find it instructive that in what is supposed to be a legal 

hearing on the free exercise of religion, the Democrats offer a 

healthcare professional as their witness. 

And then I thought some more about it, and I thought, Mr. 

Chairman, well, of course they did because Supreme Court law is 

not on their side. When a State decided to tell a church you have 

to pledge allegiance to the flag, the church objected, and the Supreme Court said, you are right, you don’t have to. And when a 

State decided to tell a religious organization, you must display a 

license tag that has a certain phrase on it, the church objected, and 

the Supreme Court said, you are right, you don’t have to. And 

when the State exercised what is a pretty compelling interest in 

having an educated citizenry and said, you must send your students to school to a certain age, a religious organization objected, 

and the Supreme Court said, you are right, you don’t have to. And 

whether it is animal sacrifice, or whether it is working on Saturdays, or whether, Heaven forbid, it is deciding who your ministers 

are, and the Supreme Court ruled 9 to 0. 

Mr. Chairman, can you find me another case in this fragmented 

state of jurisprudence that we are in, a 9-to-nothing case, that this 

Administration overstepped its bounds because it tried to tell a 

church who it can hire, fire, and retain as a minister? 

This is a legal issue, and the Administration will prevail if it can 

prove two things: number one, that there is a compelling State interest in providing free contraceptive care to the contrary of people’s religious beliefs. And you sit there and think, well, it is important, just like fighting obesity and stopping smoking and all the 

other things that I couldn’t get Dr. Rosenstock to answer for me. 

It is important. Is it compelling? Well, how can it be compelling 

when you grandfather out so many entities and when you have so 

many exceptions? 

But just give them that, Mr. Chairman. Give them the compelling interest part for sake of argument. Is it the least restrictive 

means? 

78 

Mr. Chairman, if our colleagues on the other side of the aisle 

want to create within the penumbra of the Fourth Amendment a 

constitutional right to free contraception, let them pass a bill, but 

do not make that man do it when it violates his religious beliefs. 

So I would ask this to the two legal experts, because I am not. 

But you don’t have to be one to look at Supreme Court law and see 

if you can protect a group’s right to practice animal sacrifice in 

Florida, but you can’t stand up for the Catholic Church’s beliefs on 

when life begins. 

So I would ask my two legal experts this: Does it meet the compelling interest test, and is there a least restrictive means of accomplishing this goal even assuming arguendo that it does? 

Ms. Monahan? 

Ms. MONAHAN. Just to clarify, I am not a legal expert, so I defer 

to our legal expert over here. 

Mr. GOWDY. All right, Ms. Uddin. 

Mrs. UDDIN. To answer your question in a nutshell, I mean, it 

is completely unconstitutional, and it does not satisfy the compelling government interests or the least intrusive means test. 

Mr. GOWDY. And tell us in the 45 seconds I have remaining why 

it doesn’t meet the compelling interest test. 

Mrs. UDDIN. Well, I mean, you have to understand what has constituted compelling government interest in the past. It is something like national security or preventing crimes, and if you really 

think about the standard, it is something that is used in the context of the equal protection clause when we determine when racial 

discrimination is allowed and when it is not. And when that standard is met, racial discrimination is, in fact, allowed. 

So if you think about it that way, you understand just how extreme or how strict the standard is. And absolutely you can say 

that here in this situation, the stated government interest is an increase in the access to contraception, and when applied to religious 

organizations, that is only a marginal increase in access to contraception, which absolutely we can all agree does not rise to the level 

of a compelling government interest. 

Mr. GOWDY. Well, I am out of time, so I won’t have a chance to 

ask you if the President can make people stop smoking because 

that is in the overall health benefit of all of us, or whether they 

can make diabetics diet so all of our costs go down. I will have to 

save that for another hearing, and hopefully the Democrats will invite a legal expert instead of a healthcare professional, Mr. Chairman, if we have another hearing. 

Mr. FRANKS. Well, Mr. Gowdy can be the Chairman’s lawyer anytime. 

And I would now recognize Mr. Scott for purposes of—— 

Mr. SCOTT. Thank you, Mr. Chairman. 

I ask unanimous consent to enter into the record a memo from 

the National Women’s Law Center titled—the title is ‘‘Title VII Requires Covered Employees to Provide Contraceptive Coverage,’’ and 

points out the EEOC ruling and several court decisions. 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 

79 


73101E-1.eps
80 

Mr. ISSA. Mr. Chairman, I would ask unanimous consent. 

Mr. FRANKS. Does the gentleman have an objection? 

Mr. ISSA. No. Actually I want to—— 

Mr. FRANKS. Do you reserve an objection? 

Mr. ISSA. No. I actually also want to ask unanimous consent that 

the earlier document first authored in 1968 by Pope Paul VI be entered in the record without objection. 


73101E-2.eps
81 

Mr. FRANKS. Without objection. 

[The information referred to follows:] 


73101F-1.eps
82 


73101F-2.eps
83 


73101F-3.eps
84 


73101F-4.eps
85 


73101F-5.eps
86 


73101F-6.eps
87 


73101F-7.eps
88 


73101F-8.eps
89 


73101F-9.eps
90 


73101F-10.eps
91 


73101F-11.eps
92 


73101F-12.eps
93 


73101F-13.eps
94 


73101F-14.eps
95 


73101F-15.eps
96 


73101F-16.eps
97 


73101F-17.eps
98 


73101F-18.eps
99 

Ms. JACKSON LEE. Mr. Chairman. 

Mr. FRANKS. Without objection until everybody gets their stuff in 

the record without objection. 

Ms. JACKSON LEE. Thank you for your courtesies. 

I think the gentlelady from Florida asked for some information, 

and I would like to direct this to the Chairman. We are Judiciary, 

but I would like to inquire of HHS, because I think the bishop arVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA

73101F-19.eps
100 

1The material referred to was not submitted. 

ticulated it excellently, of their plan of implementation where the 

religious entity will have no responsibility for paying for the insurance; that is, I would like to have that in writing, writing from 

HHS. 

Mr. FRANKS. The Chair will take it under advisement. 

Ms. JACKSON LEE. They will accept that, and then I would just 

ask one other question on the record. I would like to know whether 

or not the legal—I am trying to—Ms. Uddin’s legal firm addresses 

any questions dealing with Seventh Day Sabbath and represents 

any clients dealing with—— 

Mr. FRANKS. The gentlelady can submit those questions in writing.1

Mr. FRANKS. I would now recognize Mrs. Adams for 4 minutes. 

Ms. ADAMS. Thank you, Mr. Chairman. 

Bishop Lori, I was listening, and you said that during the discussions on the healthcare law, you were promised that, you know, the 

religious liberties were going to be kept intact. Then after the rule 

was released, again the promise. But then on February 10th, when 

the rule was finalized, it said the interim rule was finalized without change. Isn’t that correct? 

Bishop LORI. Yes. It says so four times. 

Ms. ADAMS. Yes. So would that, then, lead you and the rest of 

the panel to be concerned about the proposed promises to address 

it at a later date and time? 

Bishop LORI. Sure. What worries me, for example, would be a 

statement by Secretary Sebelius to the effect, for example, that religious insurers really do not shape their plans according to their 

religious convictions. Things like that sort of bode badly for what 

might be ahead. We don’t know, though, for sure. 

Ms. ADAMS. And I listened with great intent on the if you selfinsure, but the insurance company has to pay for it. If you are selfinsured, that would be you; would it not? 

Bishop LORI. That is correct. 

Ms. ADAMS. So if you are self-insured, and the insurance company has to pay for something that you believe goes against your 

tenets, would that violate your religious liberty? 

Bishop LORI. It would. We have, of course, a third-party administrator, in our case Aetna, but it is the diocese that collects the 

funds, and it is the diocese that ultimately pays out the funds. 

Ms. ADAMS. Well, as a woman I understand the difference between religious liberties and the ability to get contraceptives and 

the insurance for contraceptives, and I for one take offense when 

my government violates what I believe are my First Amendment 

rights. 

So with that in mind, Ms. Uddin, you know that the government 

admits contraception services are widely available, and that the 

Federal Government already spends hundreds of millions of dollars 

each year funding free or nearly free family-planning services 

under its Title X program. So is this the case, then, of the government putting a grievous burden on religious entities in order to 

avoid placing a relatively minor burden on the individuals that 

they employ? 

101 

Mrs. UDDIN. Absolutely. I mean, the burden here is not just substantial, it is quite severe. In many cases a lot of these organizations are going to have to pay literally hundreds of thousands of 

dollars in penalties for failure to comply with the mandate. 

Ms. ADAMS. And, Ms. Monahan, I was amazed earlier, too, about 

the conversation, because you are here to testify on what actually 

is what I believe and I think you believe an assault on our religious 

freedoms and religious liberties, Amendment I. And do you believe 

that this proposed rule, finalized rule, with the possible promises, 

as we have heard—because it was promised during the debate, it 

was promised after the debate, it was promised after the rule was 

made public, but yet the rule has been finalized, and guess what? 

The promise hasn’t come through, but don’t worry, we are going to 

get to it after the election now. So do you believe that this rule 

does infringe on your religious liberty? 

Ms. MONAHAN. Without a doubt. Yes. This rule infringes upon my religious liberty. I pay approximately close to $1,000 annually 

into my insurance premium, and it would absolutely violate my religious liberties if that money went to pay for drugs that can have 

modes of action that can cause abortion, both pre- and post-implantation in the case of Ella. 

Ms. ADAMS. Mr. Chairman, as a woman, I believe that this rule 

as proposed violates my religious liberty. 

Mr. ISSA. I would ask unanimous consent the gentlelady have an 

additional minute. 

Mr. FRANKS. Without objection. 

Mr. ISSA. Would the gentlelady yield? 

Ms. ADAMS. I will yield. 

Mr. ISSA. Thank you. 

I just have one closing quick question for our constitutional expert. You have been very generous with opinions, and I appreciate 

that. In the case of a long-forgotten bill, BCRA, the bipartisan campaign reform bill, there was an expedited capability to go to the Supreme Court, and essentially BCRA was stayed until that happened. There was no such expedited capability under ObamaCare. 

If you were able to have this issue expedited to the Supreme 

Court in the same way as the bipartisan campaign finance reform 

was, and based on the current rule as it is, is there any doubt in 

your mind that it would be held unconstitutional and that this 

hearing would therefore not have been necessary? 

Mrs. UDDIN. There is no doubt at all in my mind. 

Mr. ISSA. So you would welcome a piece of legislation that would 

attempt to, in fact, make this issue ripe for the Supreme Court at 

the earliest possible date so that ultimately, even if we don’t have 

individually the ability to change the law, but, rather, let the Court 

decide? 

Mrs. UDDIN. I welcome anything that will get rid of the religious 

liberty problems inherent in this mandate. 

Mr. ISSA. And, Bishop Lori, the same thing. You would welcome 

having the Court, based on its history, make the decision of what 

ultimately you may be forced to pay fines waiting for that decision? 

Bishop LORI. I would. 

Mr. ISSA. I thank the gentlelady, and I thank the Chairman. 

Ms. JACKSON LEE. Mr. Chairman. 

102 

Mr. FRANKS. Does the gentleman—— 

Ms. JACKSON LEE. No, it is the deep voice over here. 

Mr. ISSA. I would continue yielding to the gentlelady from Texas. 

Mr. FRANKS. Without objection. 

Ms. JACKSON LEE. I greatly appreciate it. 

Very quickly, I disagree, Ms. Uddin, that they would be paying 

hundreds of thousands of dollars. What I wanted to explain on the 

record is that the implementation of the compromise really speaks 

to what Bishop Lori has asked for, and I believe that we should 

look to that implementation as a response to the firewall between 

church and state, which I believe is very important. 

So I thank the gentleman for yielding. I don’t think that was clarified. There is no one paying $100,000 yet; the rule is not in 

place. No one is being obligated to pay that at this point in time. 

We are pursuing a rule that is not in place. 

Mr. SENSENBRENNER. Will the gentlewoman yield, the gentlewoman from Florida yield? 

Ms. ADAMS. I will, but just one quick question. If the insurance 

company has to pay, who pays into the insurance companies, Ms. 

Uddin? 

Mrs. UDDIN. The employer in question. 

Ms. ADAMS. But employees with their premiums and everything 

else. So somebody is paying for it, it is just not this unknownentity 

called ‘‘the insurance company,’’ correct? 

Mrs. UDDIN. Absolutely. But I think a more central point here 

is that we are just dealing right now with a promise, and it is 

not—it doesn’t have any legal force. And as a law firm, the Becket 

Fund cannot really consider that in its arguments because—— 

Ms. JACKSON LEE. But you are suing for something that is not 

in place. You are suing nothing. It is not in place. It is not being 

implemented. 

Mr. FRANKS. It is the gentlelady from Florida’s time. 

Mrs. UDDIN. We are suing the—it is just without—— 

Ms. JACKSON LEE. It doesn’t exist. 

Mr. SENSENBRENNER. Will the gentlewoman from Florida yield to 

me? You know, I am a bit confused. When the gentlewoman from 

Texas said that she was going to introduce the compromise that 

had been reached, I had a problem with that. Then the gentlewoman from Texas just a few minutes ago asked the Chair to take 

under consideration sending a letter to Secretary Sebelius asking 

for the text of the compromise. Now, either—— 

Ms. JACKSON LEE. If the gentleman would yield? 

Mr. SENSENBRENNER. Either there—— 

Ms. JACKSON LEE. You incorrectly heard me. 

Mr. SENSENBRENNER. That is hard to incorrectly hear you, 

ma’am. 

Ms. JACKSON LEE. Yes, you did. 

Mr. SENSENBRENNER. You know, there is a certain degree of inconsistency. The fact is that the compromise is under consideration. 

I imagine it will be under consideration until after the election, and 

then it will probably be litigated to an even greater extent than it 

is being litigated now. 

You know, meantime Ms. Uddin’s testimony very clearly stated 

in the written testimony how big fines these religious-based instituVerDate Aug 31 2005 11:04 Jun 12, 2012 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6601 H:\WORK\FULL\022812\73101.000 HJUD1 PsN: DOUGA
103 

2The statement referred to was not submitted. 

tions would be facing. And I think when we are talking about the 

legalities of this, we had better be darned sure that people are not 

fined for protecting their well-held religious beliefs, and I am afraid 

we might be getting down to that. 

Mr. FRANKS. The gentleman’s time has expired. All time has expired. 

Ms. JACKSON LEE. Would the gentleman yield for an explanation? 

Mr. FRANKS. All time has expired. 

Mrs. UDDIN. If I can just clarify, I think the confusion that Congresswoman Jackson Lee has, and that is that the interim final 

rule that does not include a compromise is the final rule. I think 

that is the central issue of confusion here. And regardless of the 

compromise, even if it was implemented, it still does not satisfy all 

the constitutional issues here. 

Ms. JACKSON LEE. Mr. Chairman, I would like unanimous consent to put a statement in the record. It is in writing. 

Mr. FRANKS. Without objection. 

Ms. JACKSON LEE. Which answers the gentlelady’s issues. There 

is no injury. I don’t know what the purpose of her lawsuit is, but 

I will put into the record an explanation of the existence of the rule 

as a safe harbor and that it will not be in place until August 2013. 

So I ask unanimous consent to put the statement in the record.2

Mr. FRANKS. Without objection. 

Mr. SENSENBRENNER. And I would ask unanimous consent that 

Ms. Uddin, on behalf of the Becket Foundation, be able to put a 

comment in the record in rebuttal to Representative Jackson Lee’s 

statement. 

[See footnote 1.] 

Mr. FRANKS. Without objection. 

All right. I would like to thank our witnesses for their testimonies today. I would like to thank the Members for their participation. Without objection, all Members will have 5 legislative days 

to submit additional written materials and questions for the witnesses or additional materials for the record. 

This hearing is adjourned. 

[Whereupon, at 7:15 p.m., the Committee was adjourned.] 

(105) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

106 

Post-Hearing Questions and Responses of Asma T. Uddin, Attorney, 

The Becket Fund for Religious Liberty 


73101G1-1.eps
107 


73101G1-2.eps
108 


73101G1-3.eps
109 


73101G1-4.eps
110 


73101G1-5.eps
111 


73101G2-1.eps
112 

f 


73101G2-2.eps
113 

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 


73101H1-1.eps
114 


73101H1-2.eps
115 


73101H2-1.eps
116 


73101H2-2.eps
117 


73101H3-1.eps
118 


73101H3-2.eps
119 


73101H4-1.eps
120 


73101H4-2.eps
121 


73101H4-3.eps
122 


73101H4-4.eps
123 


73101H4-5.eps
124 


73101H4-6.eps
125 


73101H4-7.eps
126 


73101H4-8.eps
127 


73101H4-9.eps
128 


73101H4-10.eps
129 


73101H4-11.eps
130 


73101H4-12.eps
131 


73101H4-13.eps
132 


73101H4-14.eps
133 


73101H4-15.eps
134 


73101H4-16.eps
135 


73101H4-17.eps
136 


73101H4-18.eps
137 


73101H4-19.eps
138 


73101H4-20.eps
139 


73101H4-21.eps
140 


73101H4-22.eps
141 


73101H4-23.eps
142 


73101H4-24.eps
143 


73101H4-25.eps
144 


73101H4-26.eps
145 


73101H4-27.eps
146 


73101H4-28.eps
147 


73101H4-29.eps
148 


73101H4-30.eps
149 


73101H4-31.eps
150 


73101H4-32.eps
151 


73101H4-33.eps
152 


73101H5-1.eps
153 


73101H5-2.eps
154 


73101H5-3.eps
155 


73101H5-4.eps
156 


73101H5-5.eps
157 


73101H5-6.eps
158 


73101H5-7.eps
159 


73101H5-8.eps
160 


73101H5-9.eps
161 


73101H5-10.eps
162 


73101H6-1.eps
163 


73101H6-2.eps
164 


73101H6-3.eps
165 


73101H6-4.eps
166 


73101H6-5.eps
167 


73101H6-6.eps
168 


73101H6-7.eps
169 


73101H6-8.eps
170 


73101H6-9.eps
171 


73101H6-10.eps
172 


73101H6-11.eps
173 


73101H6-12.eps
174 


73101H6-13.eps
175 


73101H6-14.eps
176 


73101H6-15.eps
177 


73101H6-16.eps
178 


73101H6-17.eps
179 


73101H6-18.eps
180 


73101H6-19.eps
181 


73101H6-20.eps
182 


73101H6-21.eps
183 


73101H6-22.eps
184 


73101H6-23.eps
185 


73101H6-24.eps
186 


73101H6-25.eps
187 


73101H7-1.eps
188 


73101H7-2.eps
189 


73101H8-1.eps
190 


73101H8-2.eps
191 


73101H9-1.eps
192 

f 


73101H9-2.eps
193 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 


73101I1-1.eps
194 


73101I1-2.eps
195 


73101I1-3.eps
196 


73101I1-4.eps
197 


73101I1-5.eps
198 


73101I1-6.eps
199 


73101I1-7.eps
200 


73101I2-1.eps
201 


73101I2-2.eps
202 


73101I2-3.eps
203 


73101I2-4.eps
204 


73101I2-5.eps
205 


73101I2-6.eps
206 


73101I2-7.eps
207 


73101I2-8.eps
208 


73101I2-9.eps
209 


73101I2-10.eps
210 


73101I2-11.eps
211 


73101I2-12.eps
212 


73101I2-13.eps
213 


73101I2-14.eps
214 


73101I2-15.eps
215 


73101I2-16.eps
216 


73101I3-1.eps
217 


73101I3-2.eps
218 


73101I4-1.eps
219 


73101I4-2.eps
220 


73101I4-3.eps
221 

f 


73101I4-4.eps
222 

Material submitted by and Prepared Statement of the Honorable Jerrold 

Nadler, a Representative in Congress from the State of New York, and 

Member, Committee on the Judiciary 

Thank you, Mr. Chairman. 

The title of this hearing suggests that we need only consider the religious liberty 

of those who object to coverage for contraception. It does not even hint at the significant interests of the government or of the millions of women and families who seek 

access to safe and affordable contraceptive services. 

Neither Congress nor the Executive Branch is free to ignore these interests, and— 

far from waging a war on the Constitution or on religion—President Obama and his 

Administration have sought a sensible balance that ensures that all women have 

access to free contraceptive services and honors the religious beliefs of those who 

object to providing or paying for these services. 

A ‘‘sensible balance’’ is exactly what is required by our laws and Constitution. As 

one of the architects of the Religious Freedom Restoration Act of 1993—or RFRA— 

I worked hard to overturn the Supreme Court’s decision in Employment Division v. 

Smith. As we explained in our findings to RFRA, the core principle we codified by 

restoring the ‘‘compelling interest’’ test for laws that substantially burden religion 

was the need for ‘‘sensible balances between religious liberty and competing prior 

governmental interests.’’ RFRA was supported by a broad coalition ranging from the 

ACLU to the National Association of Evangelicals, and both Chambers of Congress 

passed it with overwhelming bipartisan majorities. 

The Constitution also demands a sensible balance. Where—as is the case here— 

the government chooses to accommodate religious beliefs, even if doing so is not constitutionally required, the government must also take into account the interests of 

those who do not benefit from the accommodation. 

In striking down Connecticut’s law allowing Sabbath observers to take their Sabbath day off work in Estate of Thornton v. Caldor, for example, the Supreme Court 

found that, because ‘‘the statute takes no account of the convenience or interests of 

the employer or those of other employees who do not observe a Sabbath,’’ it constituted an ‘‘unyielding weighting’’ in favor of religion that violates the First Amendment. In the 2005 case of Cutter v. Wilkinson, the Court made clear that ‘‘an accommodation [for religion] must be measured so that it does not override other significant interests.’’ 

In addressing the exact question at issue here, the California Supreme Court 

upheld application of a contraceptive coverage requirement, finding that exempting 

religiously-affiliated charities would ‘‘increas[e] the number of women affected by 

discrimination in the provision of health care benefits,’’ whose interests could not 

be overlooked. As the California Supreme Court explained: 

‘‘Strongly enhancing the state’s interest is the circumstance that any exemption 

from the [state contraceptive coverage requirement] sacrifices the affected women’s 

interest in receiving equitable treatment with regard to health benefits.’’ 

The Administration’s policy is an attempt to balance competing rights and, in 

seeking a sensible balance at the federal level, the Administration understandably 

looked to California’s experience and modeled its initial August 2011 exemption for 

‘‘religious employers’’ on laws like California’s and New York’s, both of which have 

been upheld as constitutional by their State’s highest courts. 

This original exemption for ‘‘religious employers’’ was criticized as too narrow because it would not include religiously-affiliated hospitals, universities, and charities 

that serve and employ persons from a variety of faiths, many of whom may not 

share their religious beliefs. Responding to these concerns, President Obama and 

Secretary of HHS Kathleen Sebelius crafted an additional accommodation that establishes a safe harbor for a year (until August 1, 2013). During this time, a final 

rule will be promulgated that still ensures that all women have access to contraceptive services. But objecting religious organizations will not have to provide or pay 

for these benefits. Instead, insurance companies will contact employees and offer 

these benefits to them directly and free of charge. The Administration has said that 

this is workable because covering contraception saves money, and that insurance 

companies will not be permitted to increase premiums of objecting employers to 

cover the cost of contraceptive services. 

Many who objected to the original rule as too narrow support this approach. For 

example, the Catholic Health Association said it was ‘‘very pleased with the White 

House announcement’’ and it ‘‘looked forward to reviewing the specifics.’’ The Association of Jesuit Colleges & Universities ‘‘commended the Obama administration for 

its willingness to work with us on moving toward a solution’’ and ‘‘looked forward 

to working out the details of these new regulations with the White House.’’ 

223 

Others are not satisfied. The United States Conference of Catholic Bishops, for 

example, initially called the plan a ‘‘step in the right direction’’ but later condemned 

it, taking the position that ‘‘the only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.’’ Some Members of Congress have also called for rescission of the requirement or, in the alternative, for legislation that would exempt any employer or insurer from providing 

any services to which they object on religious or moral grounds. These proposals— 

like H.R. 1179, the the ‘‘Respect for the Rights of Conscience Act of 2011,’’ cause 

grave constitutional concerns by granting an unyielding weight to the interests of 

religious objectors at the expense of all others. 

Where, in these demands for complete removal of or exemption from the requirement for preventive contraceptive services, is there any acknowledgment or protection of the religious, health, and economic rights of women or the significant public 

health interest that the government shares in improving the well-being and health 

of women and their families? 

99% of all women who are sexually active in their lifetimes use contraceptives and 

nearly 38.5 million women are currently using some method of contraception. The 

interests of these women and their families cannot be ignored and should not be 

cast aside. 

We are likely to hear that requiring access to cost-free contraceptive services— 

and making those services part of routine, preventive care—is not necessary. 

Women can easily get contraception at a local clinic or over the internet, this care 

is inexpensive, and removing the requirement of coverage will not really harm 

women or their families. 

Most of the people making these claims are not public health experts. They are 

not doctors. They are not Sandra Fluke’s friend at Georgetown Law, who could not 

afford the out-of-pocket costs required to continue prescription birth control that 

stopped cysts from growing on her ovaries. Without this medication, a tennis-ball 

size cyst grew and required a trip to the emergency room and complete removal of 

an ovary. Ms. Fluke’s testimony, provided at a hearing held last week by Minority 

Leader Nancy Pelosi, provides several compelling examples of the cost barriers to 

obtaining contraceptive services and the real harm caused by inadequate access to 

that care. I ask that her testimony be included in the record for this hearing as well. 

Today, we have a doctor and public health expert with us. Dr. Linda Rosentock 

is the Dean of the School of Public Health at UCLA. She also chaired the Committee 

on Preventive Services for Women, convened at HHS’ request by the Institute of 

Medicine—a nonpartisan organization responsible for advising the federal government on issues of medical care, research and education—to study and make recommendations regarding the preventive services that should be provided to women 

at no cost, as was required of HHS by Congress in the Affordable Care Act. 

HHS accepted all of the IOM’s eight recommendations, one of which was to include FDA-approved contraceptive services as part of routine, preventive care for 

women because of the tremendous benefits that family planning provides for women 

and their families. I look forward to hearing from Dr. Rosenstock about this decision. 

I also urge all of my colleagues to set partisan politics aside for a moment and 

consider carefully the accommodations that the Administration has proposed. 

I believe that the President and Secretary Sebelius can and will achieve a workable balance. They already have gone beyond what I believe is required as a purely 

legal matter to accommodate religious belief, though I support their laudable work 

to ensure that any burden on religion will be minimal, which the proposed rule ensures by removing objecting employers from the equation. 

I fear that those who continue to object—and do so despite the fact that their 

right to decline to participate in the provision of preventive contraceptive services 

has been respected—truly seek to block women’s access to contraceptive services altogether. But the Constitution does not grant them that right and, in fact, guards 

against that risk. As Judge Learned Hand once explained, the First Amendment 

‘‘gives no one the right to insist that in pursuit of their own interests other must 

conform their conduct to his own religious necessities.’’ Sacrificing the rights and 

needs of women, and of the public health, by removing the requirement for these 

critical services or broadly exempting anyone who might object, is neither wise nor 

is it constitutional. 

With that, I yield back the balance of my time. 

224 


73101A-1.eps
225 


73101A-2.eps
226 


73101A-3.eps
227 

f 


73101A-4.eps
228 

Material submitted by the Honorable Mike Quigley, a Representative in 

Congress from the State of Illinois, and Member, Committee on the Judiciary 


73101J-1.eps
229 


73101J-2.eps
230 


73101J-3.eps
231 


73101J-4.eps
232 


73101J-5.eps
233 


73101J-6.eps
234 

f 


73101J-7.eps
235 

Prepared Statement of the Honorable Linda T. Sa ́nchez, a Representative 

in Congress from the State of California, and Member, Committee on the 

Judiciary 


73101K-1.eps
236 

Æ 


73101K-2.eps