No. 3332

WebMemo

August 2, 2011

Primarily employs persons who share its reli-
gious tenets;

Primarily serves persons who share its religious
tenets; and

Is a non-profit organization under particular pro-
visions of the Internal Revenue Code.

There are at least four serious problems with this

“protection” for conscience.

1.

riage Foundation,

First, it protects only an entity that has the
“inculcation of religious values as its purpose.”
This limitation reinforces the erroneous idea
that only entities formed to inculcate religious
values deserve protection for conscience. If
this requirement is interpreted to apply only
to traditional houses of worship, seminaries,
and similar institutions, for example, it might
exclude a wide range of religious institutions
that provide a variety of socially beneficial ser-
vices that do not include the inculcation of reli-
gious values. This reality is so obvious that the
only reasonable conclusion is that the Obama
Administration has purposefully targeted per-
sonal and institutional conscience on morally
controversial issues such as sterilization, con-
traception, and abortifacients.

Second, the HHS “protection” applies only to an
entity that “primarily serves persons who share
its religious tenets.” On its face, this require-
ment appears to deny protection to certain reli-
gious nonprofits—particularly certain social
service agencies—that offer their assistance to
needy people without regard to religious affilia-
tions or creed. Indeed, for many of these agen-
cies, the mandate to assist all in need and not
impose a religious test on recipients is itself a
core part of their religious and charitable mis-
sion. Providing service without respect to creed
is also sometimes a condition of eligibility for
public funds for social services.! Accordingly,
this requirement could force charities and other
organizations to make an impossible choice:
stop serving people without regard to creed or
abandon employee health insurance plans. The
issue is so obvious that it is impossible to view

the new guideline as anything less than a pre-
meditated squeeze on conscience

3. Third, the HHS “protection” fails to protect enti-

ties that fulfill a religiously inspired social mis-
sion but do not staff primarily with coreligionists.
The protection might not apply, for example, to
church schools, hospitals, and health plans that
do not “primarily” employ members of their
religion but nevertheless consider their mission
to be a natural extension of their laith traditions
and communities.

4. Fourth, the new HHS guidelines reinforce the

mistaken notion that freedom of conscience either
does notexist oris not worthy of protection unless
it is religiously motivated or expressed within a
strictly religious institution. But the conscience
of an individual or group opposed to abortion
or any other practice whose medical character is
debatable is also worthy of consideration, as is
the operation of conscience for the many men
and women who bring their moral convictions
to bear on their places of work, both for-profit
and nonprofit. The most obvious groups affected
by this omission in the guidelines are pro-life
nonprofit organizations that are not connected to
any church or religious entity—including pub-
lic policy groups that oppose abortion and social
service agencies that provide alternatives to it.

Make a Stand for Conscience. Certain federal
conscience protections have recognized both reli-
gious and moral objections to certain controver-
sial procedures, as shown by the text of the 1973
Church Amendment, which protects the conscience
rights of individuals and entities that receive certain
federal funds. The HHS guidelines should have met
this same standard.

For these reasons and more, the HHS guidelines
released on August | deserve intense scrutiny inside
Congress and out. Social conservatives should make
astand for conscience protections for all people and
institutions—religious and non-religious alike.

—Charles A. Donovan is Senior Research Fellow in
the Richard and Helen DeVos Center for Religion and
Civil Society at The Heritage Foundation.

See U.S. Department of Health and Human Services, “Grants & Funding—FAQs,” at http://answers.hhs.gov/categories/65

(August 2, 201)

a

LEADERSHIP FOR AMERICA

page 2


WebMemo

=x Published by The Heritage Foundation

No. 3332
August 2, 2011

HHS’s New Health Guidelines
Trample on Conscience

Charles A. Donovan

The Department of Health and Human Services’
(HHS) new preventive services guidelines are a disas-
ter for freedom of conscience and a fresh illustration
of the political hammerlock “reproductive rights”
organizations have on the Obama Administration.

Forcing private insurance plans to pay for morally
controversial offerings such as contraception, steril-
ization, and abortifacients raises obvious questions
regarding freedom of conscience. Federal law requires
respect for the conscience of health care providers on
many of these issues. Unfortunately, the new HHS
guidelines show disrespect for freedom of conscience.

Background. The Obamacare legislation adopt-
ed in March 2010 included an amendment pro-
posed by Senator Barbara Mikulski (D-MD) that
required private insurance coverage of women’s
“preventive services” on a mandatory and prefer-
ential basis—without deductibles, coinsurance, or
patient co-pays. The amendment did not define
the particular “preventive services” to be covered,
raising immediate concerns that it was intended, or
would be interpreted, to cover drugs, devices, and
procedures that would infringe on the moral and
religious beliefs of institutions and individuals.

The amendment provided an avenue around the
already-existing process for identifying effective
treatments and preventive services through the U.S.
Preventive Services Task Force. Planned Parenthood
and other groups lobbied the Institute of Medicine
(JOM) for months, urging it to include contracep-
tives, abortifacients, and sterilization as mandatory
benefits with no cost-sharing.

The IOM fully complied with Planned Parent-
hoods wishes, recommending that “preventive
services” encompass not only diabetes and HIV pre-
vention but drugs, devices, and procedures that can
prevent conception and terminate pregnancy. Treat-
ing organ- and tissue-destroying diseases as equiva-
lent to the natural processes involved in begetting
and bearing a child is a gross distortion of reality. In
addition to the morally debatable aspects of these
services, there are social questions concerning them
that continue to divide the public, including the
provision of these drugs and devices to minor chil-
dren and issues of conscience for providers, insur-
ers, and the insured alike. But these concerns did
not trouble HHS; the new guidelines make first-
dollar coverage of these items mandatory for all
health insurance policies to be issued in the United
States after August 1, 2012.

Not Much Protection. The new HHS guidelines
contain a conscience protection, but it is offensively
narrow. Only “certain religious employers” qualify
for the protection, and the guidelines make clear
that a religious employer is only one that:

° Has the inculcation of religious values as its
purpose;

This paper, in its entirety, can be found at:
htip://report.heritage.org/wm3332

Produced by the Richard and Helen DeVos
Center for Religion and Civil Society

Published by The Heritage Foundation
214 Massachuseits Avenue, NE
Washington, DC 20002-4999
(202) 546-4400. heritage.org
Nothing written here is to be construed as necessarily reflecting,

the Views of The Heritage Foundation or as an attempt to
aid or hinder the passage of any bill before Congress.

~ et ...,

7c Toundation


ir"
we MA
“Heritage Foundation

LEADERSHIP FOR AMERICA

August 9, 2011

The Honorable Timothy F. Geithner
Secretary of the Treasury
REG-120391-10

Internal Revenue Service
Washington, DC 20044

via http://www.regulations.gov

The Honorable Hilda L. Solis
Secretary of Labor

RIN 1210-AB44

U.S. Department of Labor
Washington, DC 20210

via E-OHPSCA2713.EBSA @dol.gov

The Honorable Kathleen Sebelius
Secretary of Health and Human Services
CMS-9992-IFC2

Department of Health and Human Services
Baltimore, MD 21244-8010

via http://www.regulations.gov

Dear Secretary Geithner, Secretary Solis, and Secretary Sebelius:

This letter-_presents comments of The Heritage F oundation! ("Foundation") on the Interim Final
Rules with Request for Comments on "Group Health Plans and Health Insurance Issuers Relating
to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act"
published jointly by your departments in the Federal Register (76 Fed. Reg. 46621, August 3,
2011). The interim final rules, which were effective on August 1, 2011, provide a limited
religious exemption from otherwise applicable rules that require group health plans offered by
employers to include no-cost coverage for contraceptive services. The limited religious
exemption is too narrow to accommodate properly the interests protected by First Amendment
freedoms. For the reasons set forth in this letter and in the attached memorandum,” the

| The Foundation is a District of Columbia nonprofit corporation that is recognized as exempt under section
501(c)(3) of the Internal Revenue Code, with the mission "to formulate and promote conservative public policies
based on the principles of free enterprise, limited government, individual freedom, traditional American values, and
a strong national defense." The Foundation submits these comments as permitted by law (5 U.S.C. 553(€), 2 U.S.C.
1602(8)(B)(x), and 26 U.S.C. 4911(d)(2)(E)).

? Charles A. Donovan, "HHS's New Health Guidelines Trample on Conscience," Heritage Web Memo No. 3332
(August 2, 2011). Although this letter addresses only the “religious employer" exemption in the interim final rules
in light of the right of religious liberty, the memorandum points out that "the HHS guidelines reinforce the mistaken
notion that freedom of conscience either does not exist or is not worthy of protection unless it is religiously
motivated or expressed within a strictly religious institution." Thus, HHS should consider adding a “conscientious
objection” exemption from the interim final rules for such groups.

214 Massachusetts Avenue, NE . Washington, DC 20002-4999 . (202) 546-4400 . heritage.org


Foundation requests that the Department of Health and Human Services (HHS) revise its interim
final rules to broaden the exemption as set forth below and make any necessary conforming
changes in departmental regulations.

The First Amendment protects the free exercise of religion, and the Religious Freedom
Restoration Act provides that the federal government "shall not substantially burden a person's
exercise of religion even if the burden results from a rule of general applicability, except . . . if it
demonstrates that application of the burden to the person . . . is in furtherance of a compelling
governmental interest; and . . . is the least restrictive means of furthering that compelling
governmental interest." 42 U.S.C. 2000bb-1. The HHS interim final rules that require
employers to include, in the group health plans they offer employees, no-cost coverage for
contraceptive services is a rule of general applicability, but the rules substantially burden the
exercise of religion of a religious employer whose religion does not permit contraception, and
the rules neither further a compelling governmental interest nor are the least restrictive means of
furthering such an interest. The government cannot and should not compel a religious employer
to make available to its employees group health insurance plans that cover services (here
contraception) whose sole purpose is to facilitate conduct prohibited by that religion (here the
prevention of conception of human life through the use of contraception).

For the reasons set forth above and in the attached memorandum, the Foundation urges HHS to
amend section 147.130(a)(1)(iv) of title 45 of the Code of Federal Regulations by:

(1) in sub-subparagraph (A), striking "may establish exemptions" and inserting in lieu thereof
"shall establish exemptions"; and

(2) striking sub-subparagraph (B) and inserting in lieu thereof:

"(B) For purposes of this subsection, a ‘religious employer’ is an organization that meets
all of the following criteria:

"(1) the organization is organized and operated not for profit; and

"(2) an officer or the equivalent of the organization files with the Secretary of Health and
Human Services a written certification that, because of a sincere exercise of religion, the
organization will not offer to its employees group health plans with coverage for
contraceptive services."

The above-recommended revision of section 147.130 would mandate exemption of religious
employers whose sincere exercise of religion dictates that they not offer to their employees group
health plans with coverage for contraceptive services, such as pro-life churches, religious orders,
or religious providers of charitable services. The False Statements Act (18 U.S.C. 1001)
provides a safeguard against false certifications from an organization to obtain "religious
employer" status to which the organization is not entitled. Nothing in the recommended revision
would infringe upon the liberty of employees of a religious employer to obtain contraceptive
services, to obtain insurance covering contraceptive services from other than their religious
employer, or to seek employment with other than a religious employer.


The Foundation urges the Department of Health and Human Services to revise section 147.130
of title 45 of the Code of Federal Regulations as set forth above, to protect religious liberty.

incerely,..
Te

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é dl ot
David S. Addington
Vice President for Domestic and Economic Policy