When the Department of Health and Human Services (HHS) announced last year that almost all employers would have to pay for insurance coverage for abortions, companies like Hobby Lobby filed lawsuits challenging the federal government’s self-anointed role as arbiter of religion. After being slammed with criticism on all fronts, HHS decided to invoke a phony accommodation — an accounting trick — and claim it was respecting religious liberty. More than a year later, the federal government is still insisting on forcing religious employers — profit and nonprofit — to provide something they contend is murder. It’s as if the government is saying, “You don’t have to hold the knife, but you have to pay for it.”
It’s clear that the federal government, in enforcing what has become known as the HHS contraception mandate, is propping up a secularist worldview at the expense of religious freedom. In effect, it’s doing this by coercive strong-arming and — in a move right out of the postmodernist’s playbook — engaging in disingenuous arguments to make its case seem more reasonable.
The net effect is the establishment of state-controlled religion in which the federal government attempts to define what the true practice of religion is, who may practice it in the public square, and what punishments are appropriate for organizations and leaders who assert their rights of conscience.
The HHS Mandate Establishes a State Religion: Secularism
When the regulation was originally introduced as part of the Patient Protection and Affordable Care Act (PPACA), known popularly as Obamacare, the goal of the administration and Health and Human Services Secretary Kathleen Sebelius was to force all employers to provide abortifacient drugs — chemicals that halt the implantation of a fertilized egg (a human life) into the uterine wall. The Food and Drug Administration does not consider a fertilized egg to be a viable life; its threshold is implantation, when the fertilized egg successfully implants into the uterus. This distinction is not scientific, but arbitrary. Thus, abortifacient treatments such as Plan B, Ella, and the Copper IUD are not considered by the FDA to be abortive. 1 A fertilized egg is a very tiny thing, but as Summit instructor Scott Klusendorf teaches our students, whether something counts as a life worth protecting does not depend on its Size, Level of Development, Environment, or Degree of Dependency (S.L.E.D.).
This mandate affects three kinds of organizations: for-profit corporations, churches (brick and mortar churches and denominations), and nonprofit religious corporations (like Summit). Let’s look at each in turn.
For-profit corporations. It is the Obama administration’s position that for-profit corporations cannot have a religious conscience. Therefore, neither the PPACA nor HHS regulations provide an exemption for companies like Hobby Lobby. Unless the Supreme Court rules otherwise, this means that Christian owners of a for-profit business have no legal right to refuse to provide abortifacient drugs as part of their company’s health plan. 2
Churches. After vocal protests by a large swath of religious organizations, the Obama administration announced it would exempt brick-and-mortar churches, denominations, and religious orders from the mandate. In addition, the PPACA is written in such a way that Anabaptists (e.g., Amish and Mennonites) and members of two health care sharing ministries are not subject to the mandate. 3
Nonprofit religious corporations. HHS offered religious nonprofits like Summit, Christian colleges, and religious charities what it deemed an “accommodation,” which in reality is little more than an accounting gimmick. Instead of paying for abortifacients outright, such organizations instead have to pass on that responsibility to insurance providers or third party administrators (TPAs). Following the logic that abortion is murder, organizations like Summit aren’t being forced to provide abortion services, but are being forced to outsource those services to someone else.
Through these dictates, HHS has created religious classes subject to different regulations: those fully subject to the mandate, those exempt, and those “accommodated.” This violates the constitutional prohibition against the establishment of religion. As Summit’s attorneys L. Martin Nussbaum and Ian Speir put it in a recent memo to Dr. Jeff Myers:
The very heart of Establishment Cause jurisprudence is that Caesar cannot pick religious winners and losers. . . . Such an elaborate religious gerrymander is unprecedented in American religious liberty history and cannot withstand Establishment Clause scrutiny. 4
Secularists frequently accuse Christians of wanting to violate church/state separation. Ironically, this is exactly what the HHS mandate does. When Thomas Jefferson wrote to the Danbury Baptists in 1802 and invoked the phrase “a wall of separation between Church & State,” he was not telling Christians to stay out of the public square; rather, he was encouraging the young republic not to let the state interfere with how churches practice their religion. 5
The HHS mandate shows how right Jefferson was to encourage Christians to be leery of state coercion in religious matters. The HHS mandate explicitly attempts to pick religious winners and losers, the very thing Jefferson was so exercised about.
Feds Are Strong-Arming Religious Organizations
The chief means through which the federal government enforces the HHS mandate are coercion and bullying that are themselves unconstitutional.
The mandate restricts First Amendment rights. Some religious organizations have self-funded insurance policies, meaning instead of employees’ policies being grouped into a plan with other companies’ employees, a particular organization might be a group in itself. In such cases, the organization typically contracts a third party administrator (TPA) to administer the insurance plan. The HHS mandate “accommodation” forces self-insured religious organizations that object to providing abortifacients to authorize their TPAs to pay for the abortifacients. As Summit’s attorneys note, “The employer, in effect, must tell the TPA, ‘We will not cover abortifacients or contraceptives, but you must.’” 6 This forced authorization is compelled speech, and because it forces the organization to foster an idea it finds morally repugnant, it violates the First Amendment.
Furthermore, TPAs that have to foot the bill for their customers will be reimbursed by the federally funded insurance exchanges; federal dollars will finance abortion. 7
Finally, HHS regulations prohibit an “accommodated” organization from communicating with its TPA about providing abortifacients, lest the TPA be swayed not to do so. In other words, employers can’t even talk with their insurance administrators about restructuring their health care plans. “The Final Regulations contain no explanation for this provision,” Nussbaum and Speir wrote. “The purpose and effect, however, are clear: to cow religious organizations into silence and to foreclose discussion with their TPA as to any remaining moral option that avoids the mandate.” 8 Restricting speech in this way is also a clear violation of the Constitution.
Punitive fines for violating the mandate are discriminatory and would force most organizations to close their doors. If employers like Summit fail to comply with what our conscience tells us is a morally objectionable mandate, we would be subject to fines of $36,500 per employee per year. The fine for companies not providing insurance at all is just $2,000 per employee per year. In effect, the administration is saying either stop providing insurance for your employees and pay a hefty but affordable fine, or follow your conscience and be destroyed.
Needless to say, when the administration makes the cost of not providing abortion-inducing drugs 18 times that of not providing insurance at all, it seem as if the Affordable Care Act is less about health care and more about imposing a political agenda regardless of the effect on religious freedom and free speech.
The Government’s Case Rests on Word Games
Popular Summit faculty member Dr. Michael Bauman has a favorite saying: “When words lose their meaning, people lose their lives.” Some accuse Bauman of exaggerating. But the HHS mandate is a sobering example of how the ability to manipulate language results in death. As Summit’s attorneys put it, the HHS mandate and the PPACA in general are littered with “morally deceptive terminology.” Words which mean one thing in popular speech now take on new meanings in these regulations for the sake of covering abortion. In the HHS mandate:
- “Conception” now means “implantation.”
- Contraception now includes drugs that prevent implantation (read: “conception”), destroying a conceived human life.
- “Abortion” is thus reduced only to surgical abortion and excludes drugs that accomplish the same.
As Nussbaum and Speir point out, “The Final Regulations create a lexical mishmash so confusing and so deceptive that it compromises the ability of ministries to educate their adherents and the public about the grave moral issues implicated by these regulations.” 9
So Where Do Religious Employers Go from Here?
Many people think organizations like Summit are overreacting. “It’s a good enough compromise — let’s just move on,” they say. But the structure of the HHS mandate opens the door for the administration to later amend its directive to require employers to provide surgical abortion or even partial-birth abortion. Those who do not draw the line now will have no credibility in resisting even further intrusion.
The religious classes created by the PPACA force ministries and businesses run by Christians to choose between shutting their doors or taking part in what they consider to be a clear moral evil. Many have decided it’s time to act. Those organizations need the support of Christians as they move forward, most notably prayer. Protecting religious liberty is a task for us all, and we can start by keeping a close eye on these cases and holding our elected and unelected officials accountable.
As usual, Summit will keep you updated as these important cases progress.
- Memorandum by L. Martin Nussbaum and Ian S. Speir, Lewis Roca Rothgerber LLP to Jeff Myers and Eric Smith, Summit Ministries, 5 September 2013.
- Hobby Lobby has won a preliminary victory at the federal appellate level. The U.S. Court of Appeals for the Tenth Circuit held that for-profit companies like Hobby Lobby can exercise religion, and that the mandate unlawfully coerces Hobby Lobby into violating its religious conscience. Other federal appellate courts, however, have disagreed, and the Supreme Court is expected to take up the issue soon.
- Memorandum, 6-7.
- Ibid, 18.
- “Jefferson’s Letter to the Danbury Baptists,” Heritage Foundation, http://www.heritage.org/initiatives/first-principles/primary-sources/jefferson-s-letter-to-the-danbury-baptists.
- Memorandum, 11.
- Ibid, 13.
- Ibid, 14.
- Ibid, 16.