- The Washington Times - Sunday, August 21, 2016

Three months after the U.S. Supreme Court ordered both sides to seek out a compromise on Obamacare’s birth control mandate, religious nonprofits that oppose it are mobilizing to win the fight, while the administration is saying it’s ready to tweak the rules.

The Health and Human Services Department has asked the public to weigh in through next month on ways to ensure women get access to contraceptives including the morning-after pill and accommodate faith-based schools, hospitals and charities that refuse to pay for something they consider sinful.

Justices in May said they believe there’s a way to do both, and have asked the lower courts to oversee the efforts to reach a new deal.

But for the pro-life side, the only acceptable outcome is to be left out of it.

“Our position in the whole matter hasn’t changed, namely, that whatever the government or the insurance companies do, we want no involvement whatsoever in being the bridge between our employees and the objectionable coverage the government wants to provide,” said Father Frank Pavone, executive director of Priests for Life, which challenged the rules. “Therefore, the government cannot simply stand by its regulations in their current form.”

Several weeks into the feedback period, all but a handful of the 140 or so comments fielded by HHS have sided with the religious groups, saying the Founding Fathers expressly protected religious freedom. Yet rather than offering Solomonic solutions, many of the commenters are telling the government to provide the drugs and services itself.

“If contraceptive coverage is deemed so important by the government, then the government should offer that coverage directly to those employees who cannot obtain it through their religious employers,” a commenter from Maryland said. “This a simple and obvious solution.”

Hoping to press its advantage, Priests for Life said it has alerted a “few hundred thousand” supporters about the comment period and will hold webcasts and conference calls on the issue, so they can provide knowledgeable feedback to the government in the coming weeks.

The contraceptive mandate is part of the Obama administration’s policies in carrying out Obamacare. HHS said most employers must provide insurance that covers dozens of FDA-approved contraceptives, including birth control pills or the morning-after pill that some religions object to as sinful.

Houses of worship were exempt from the mandate, but religious-based charities, including some private schools or Catholic hospitals, were not. Instead, the government offered an accommodation requiring the nonprofits to opt out of the coverage through a written form, which would then trigger the insurers or the government to step in.

The Little Sisters of the Poor, an order of Catholic nuns dedicated to caring for the elderly, and a number of other charities objected, saying that signing the form made them complicit in providing the contraceptives they object to.

The administration still thinks its accommodation is consistent with a 1993 law designed to protect religious freedoms, though it said it won’t prejudge the outcome of the public comment period, which lasts until Sept. 20.

“Information gathered through this [request for information] will be used to determine whether changes to the current regulations should be made and, if so, to inform the nature of those changes,” said HHS spokeswoman Marjorie Connolly.

Mark Renzi, senior counsel for the Becket Fund for Religious Liberty, said the best way for the government to settle the long-running debate is to provide contraceptives through Obamacare’s exchanges or other federal programs, carving the nonprofits out completely.

“I think it would take a whole lot of chutzpah for the government to say we’re going to stick to the current scheme,” he said.

Yet Brigitte Amiri, a senior staff attorney at the American Civil Liberties Union, which defended the mandate, said her organization and like-minded groups plan to weigh in during the comment period. While it is not clear what they will say just yet, the ACLU will not support any proposal “that takes contraception out of the employees’ comprehensive health plan.”

“Maybe some new ideas will emerge in the comments,” Ms. Amiri said. “Frankly, the government has bent over backwards trying to appease the employers in these cases.”

For its part, HHS says it is committed to respecting the beliefs of religious employers, though it also said that any solution must ensure that women “seamlessly receive full and equal health coverage, including contraceptive coverage.”

The nonprofits say that could be a problem, since they don’t want to be involved in any way.

“They want to make the coverage ‘seamless’ and as easy as possible for the employee,” Father Pavone said, “but the problem is that the more seamless it is, the more complicit we are asked to be.”

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