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MINICK: The Hobby Lobby ruling is coming with religious freedom at stake

Broad exemption to HHS mandate in Obamacare must be facilitated

- - Friday, June 20, 2014

The Supreme Court is expected to rule any day on the Hobby Lobby and Conestoga Wood Specialties' case challenging the Department of Health and Human Services (HHS) mandate on religious liberty grounds. The ruling, though, could easily leave certain aspects of the mandate's scope undecided. In that case, Notre Dame's mandate lawsuit, as well as other nonprofit cases, will become a focus of attention.

Not long before Obamacare was signed into law in 2010, President Obama, amidst controversy, delivered the commencement speech at Notre Dame. Referring to the debate over the funding of abortion in his proposed health care law, he said, "Let's honor the conscience of those who disagree with abortion, and draft a sensible conscience clause ." Obamacare is now law, and it contains no conscience protections for those who do not want to violate their religious and moral beliefs.

Fast-forward a couple of years and Notre Dame University is currently in the middle of a lawsuit challenging the HHS mandate contained in Obamacare. The mandate requires that all employer and private health care plans provide all Food and Drug Administration-approved contraceptives, drugs that can destroy a human embryo, and sterilization services, without a co-pay, under threat of fines of up to $100 per day per employee for noncompliance.

In Notre Dame v. Sebelius, the university has been denied an injunction in its challenge to the mandate. Out of a total of 51 nonprofit cases filed challenging the mandate, Notre Dame is currently one of only five nonprofit organizations that has been denied an injunction from the mandate.

The mandate contains only a narrow religious exemption, exempting only churches. Churches, however, are incorporated entities. If churches are incorporated and exempt, why not other religious incorporated groups like Notre Dame University, Priests for Life and the Little Sisters of the Poor? If the Obama administration believed that this mandate would not violate religious liberty, why would it exempt churches? If religious liberty is not violated, churches would not need to be exempt.

In an effort to appease religious groups, the Obama administration offered nonprofits a so-called "accommodation," requiring the insurer to pay for questionable drugs and devices, but that is nothing more than a budgetary accounting gimmick. Employers would still remain the legal gateway by which their employees are able to obtain drugs such as Plan B and Ella on their employee health care plan, without a co-pay. As Priests for Life outline in their brief, "insurance companies do not donate products and services to covered employees . The reality, as with all mandated benefits, is that these costs will be borne eventually via higher premiums."

The government claims all Priests for Life has to do is sign a form. Shifting paperwork from the left pile to the right pile, though, still does not change the underlying issue, that the HHS mandate violates the long-held American tradition of respecting conscience.

Earlier this month, this issue came front and center when attorneys for Priests for Life and the Archdiocese of the District of Columbia participated in oral arguments before the U.S. Court of Appeals for the D.C. Circuit as part of their cases challenging the mandate on religious liberty grounds.

There is no compelling government interest in forcing religious groups such as Priests for Life to violate their consciences as a condition of keeping their doors open and serving their mission. As the attorney for the archdiocese pointed out at oral argument, it is not the physical act of signing a form that constitutes a substantial burden on religious exercise, but the crushing weight of conscience accompanying a signature which makes one complicit, contrary to one's religious doctrines and moral and religious beliefs.

It should be extremely troubling to Americans that organizations such as Priests for Life, the Little Sisters of the Poor and Christian universities such as Wheaton College, Notre Dame University and the Catholic University of America are no longer in charge of offering their employees generous health care packages that are consistent with their morals and values. The mandate forces family businesses and nonprofit entities, to violate their consciences. It forces them to provide drugs and services that they claim are incompatible with their faith or face fines that will cripple their mission.

The HHS mandate is also a slippery slope. The text of Obamacare never mentioned that individuals or family businesses would be forced to provide all government-approved contraceptives and drugs. Rather, Obamacare only required that all health care plans cover "preventative care services for women," which the Department of Health and Human Services interprets to include the above-mentioned drugs and services. What is to stop a future administration from posting a new blog and interpreting "preventive care services for women" to require all health care plans to cover surgical abortions without a co-pay?

The HHS mandate threatens the jobs, health care and livelihood of Americans. It forces groups such as Priests for Life to either violate their consciences and provide what they believe are objectionable drugs and services to their employees, or stand up for conscience and be punished with crippling fines.

Emily Minick is a senior legislative assistant at the Family Research Council.