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The Mess that is the HHS Mandate

by | Jan 4, 2013

By Dave Andrusko

Sister Mary Ann Walsh

Sister Mary Ann Walsh

The last item of the week is based on an opinion piece that appeared today in the Washington Post. This excellent quest column was written by Sister Mary Ann Walsh, Director of Media Relations for the U.S. Conference of Catholic Bishops.

You can read her thoughtful insights in their entirety, so let me make just a few brief points.

The mandate are regulations adopted by the Department of Health and Human Services [HHS] under a provision of ObamaCare that force employers to purchase health insurance for their employees that includes coverage for items and procedures, such as contraceptives, that they have moral or religious objections to. They have been controversial–and the source of passionate opposition in the courts and elsewhere—from the get-go.

Citing the Becket Fund for Religious Liberty, Walsh reports that “there are 43 cases and over 110 plaintiffs challenging the mandate in court. So far, at least 12 for-profits have obtained initial rulings that take up the merits of their case, and nine of those rulings have granted the companies preliminary injunctive relief against the mandate.”

There is little rhyme and no reason to how various companies are being affected. “Some religious non-profits have a safe harbor and do not have to fund health plans that cover contraceptives and sterilization until after August 2013,” Walsh observes. “For-profit companies, however, are under the gun now. The for-profit business owners who object to the mandate either must violate their consciences and pay for plans that include services they morally oppose or hold to their principles and face backbreaking fines.”

Likewise, some opponents are winning (and not on the same basis) while others are losing in court. Those judges/panels ruling against the plaintiffs also offer varying rationales.

These include: that the HHS mandate doesn’t affect the companies yet [the “safe harbor” argument]; that even if individual members of a family owning a company have religious rights, the companies the family owns are secular, for-profit enterprises that do not possess the same rights; and that the burden of the mandate is “likely too remote and attenuated to be considered substantial”—to name just three.

Walsh builds on that latter point to draw a powerful conclusion. First, she writes, “Personally, it is hard to see how forcing someone, against his conscience” to purchase this kind of insurance coverage “could not be a substantial burden.”

Second, a point made over and over and over again, but worth making again:

“Simply put, the issue is not about using contraceptives, it is being coerced to offer or purchase a plan that covers them. Clearly courts should not be in the business of telling people –be they businessmen or bishops –what constitutes a substantial burden on their exercise of religion. The few courts that have ruled the wrong way so far have impermissibly delved into a moral analysis of religious claims.”

Categories: ObamaCare