Comments were due this week on the Department of Health and Human Services’ proposed regulations regarding preventive reproductive health care services. The new rules were issued in response to the Supreme Court’s decision in Burwell v. Hobby Lobby, which exempted Hobby Lobby and Conestoga Wood from the Affordable Care Act’s requirements to provide those services to their employees. The proposed regulations seek to identify who is exempt (by defining a closely held corporation) and how women employees will receive the health care denied to them by their employers.
We have the following top ten objections to the rules and their failure to fully serve the government’s compelling interest in wellness care for women (and children) after Hobby Lobby
- The government’s analysis focuses primarily on identifying what corporations qualify for an exemption and how to make it easier for them to get the exemption, rather than putting priority on ensuring women receive access to health care.
- The government’s rules were issued in response to the Wheaton College case, even though the Court’s order in Wheaton College explicitly stated that it “should not be construed as an expression of the Court’s views on the merits.”
- Wheaton College, like many other religious non-profits, had argued in court that requiring it to inform its insurance carrier that it opposed contraceptive coverage substantially burdened its religion under the Religious Freedom Restoration Act (RFRA). Instead of allowing the courts to have the final say on whether this minimal burden violated RFRA, the administration jumped the gun. The regulations preemptively hand the nonprofits a victory by allowing them to send a letter stating their objections to HHS.
- There is no guarantee in the regulations that women employees will immediately receive the insurance benefits to which they are entitled.
- The regulations strangely assert that “nothing in this alternative notice process requires a government assessment of the sincerity of the religious belief underlying the eligible organization’s objection.” Sincerity is always a threshold determination in religious freedom cases. Allowing exemptions to non-sincerely held beliefs is so extreme an accommodation that it makes a mockery of religious freedom and violates the Establishment Clause.
- The new rules delete the prior rules’ regulations “prohibiting an eligible organization from interfering with or seeking to influence a third party administrator’s decision or efforts to provide separate payments for contraceptive services.”
Even with our suggested changes to the regulations, the Hobby Lobby decision demands the following amendments to federal law that will protect the vulnerable from outrageous RFRA claims.
- The new rules do not require a federal law providing funds for women’s cost-free reproductive health care coverage when their employer demands a RFRA exemption. The Supreme Court said that that was the “least restrictive means.” If Congress does not do so, it will be because it is politically impossible, which means it is not the “least restrictive means.”
- Missing is a recommendation that medical exemptions under the ACA can be provided only when the medicine does in fact what the believer claims it does that offends their beliefs. (Hobby Lobby is wrong that the 4 means of contraception are “abortifacients” and therefore they do not violate their beliefs in fact.)
- An amendment to Title VII, stating that employers may not discriminate according to gender or sexual orientation in health care coverage, is necessary. This is another bulwark against fraudulent claims by employers to religious exemptions.
- RFRA needs to be amended to be clear that it may not be invoked to deprive children of medical care. They are not to be martyrs to their parents’ dangerous beliefs.
To sum up, the new regulations are both too little for women and too soon for nonprofits. This is what happens when extreme religious demands are allowed to trump women’s rights.