Catholic Bishops claim feds’ birth control decision violates First Amendment’s religion clause

Posted on: September 7th, 2011 by The American Independent 20 Comments

The United States Conference of Catholic Bishops recently released a 35-page comment (.pdf) to the U.S. Department of Health and Human Services claiming that the agency’s recent decision to include birth control in its list of preventive care services violates the First Amendment’s religion clause.

Health and Human Services’ decision would allow women to receive insurance coverage for birth control without having to also make co-payments. The decision would be implemented through the Affordable Care Act. Catholic organizations have been the main opponents of this decision — despite a provision that “allows religious institutions that offer insurance to their employees the choice of whether or not to cover contraception services.”

According to the Bishops:

The HHS mandate is unprecedented in federal law and more radical than any state contraceptive mandate enacted to date. Insofar as it requires coverage of drugs that can operate to cause an abortion, the mandate violates the Weldon amendment, certain provisions of the Patient Protection and Affordable Care Act (“PPACA” or “the Act”) dealing with abortion and non-preemption, and the Administration’s own public assurances, both pre- and post-enactment, that the Act does not require coverage of abortion.

Finally, as applied to individuals and organizations with a religious objection to contraceptives, sterilization, and related counseling and education, the HHS mandate violates various protections under the Religion Clauses and Free Speech Clause of the First Amendment, as well as the Religious Freedom Restoration Act (“RFRA”) and the Administrative Procedure Act (“APA”).

The Bishop’s also reiterated the commonly used complaint among Catholic groups that the religious exemption provision is “too limited”:

The exemption provides no protection at all for individuals or insurers with a moral or religious objection to contraceptives or sterilization, who will experience burdens to conscience under this new mandate. Instead, it provides protection only to employers with similar objections, and even then to a very small subset of religious employers.

The exemption is narrower than any conscience clause ever enacted in federal law, and narrower than the vast majority of religious exemptions from state contraceptive mandates. The exemption also fails to make clear whether it covers sterilization and education and counseling about sterilization. By failing to protect insurers, individuals, most employers, or any other stakeholders with a religious objection to such items and procedures, the HHS exemption, like the mandate itself, violates the First Amendment and the APA.

However, the Bishops are not asking for Health and Human Services to expand the exemption, but instead requesting that the mandate be rescinded “in its entirety.”

According to the Bishops, “only rescission will eliminate all of the serious moral problems the mandate creates; only rescission will correct HHS’s legally flawed interpretation of the term ‘preventive services.’”

Jon O’Brien, president of Catholics for Choice, says that the Bishops are using “a contrived legal argument”  to dismiss the “conscious rights of those seeking care.”

“This is a strategy we have seen time and time again,” O’Brien says. “They are trying to rely on any argument to push their own perspective.”

Recent polling finds that 66 percent of Americans agree with the federal government’s recent decision to include birth control in its list of preventative services. Furthermore, according to  research conducted by the Guttmacher Institute, about “98 percent of sexually active Catholic women have used contraceptive methods banned by the church.”

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