The Department of Health and Human Services announced last Friday a proposed change to its birth control mandate. The change, which HHS considers an "accommodation" for nonexempt religious groups, does not, however, address the underlying religious freedom concerns of the over 40 plaintiffs who have sued HHS citing their First Amendment religious freedom rights, according to Kyle Duncan, general counsel for The Becket Fund, which represents some of the plaintiffs, in a Monday interview with The Christian Post.
The birth control mandate, first announced in January 2012, requires employers to provide contraceptives, sterilization and some abortifacients without a co-pay in their employees' health insurance coverage.
The proposed rule change would require insurance companies to provide the birth control services to employees of religious employers covered under the "accommodation" at no additional cost.
The proposed change does not address the complaints of for-profit companies who claim the mandate violates their religious conscious protections, Duncan said. About half of the plaintiffs in the lawsuits are for-profit companies. The administration takes the position that for-profit companies have no religious freedom rights.
Another one of the main issues of concern for religious freedom advocates is that the exemption for religious groups is written so narrowly that it essentially sets up two tiers – one tier for houses of worship, which are granted full religious freedom rights, and another tier for every other type of religious organization, such as schools, camps, soup kitchens, homeless shelters and a host of other social service organizations, which are not granted full religious freedom rights but are promised an "accommodation."
The proposal would change some of the language regarding the two tiered approach to religious freedom, but no substantive changes are made, Duncan explained, because it is still only houses of worship who would receive religious freedom protections.
Duncan also called the proposal "convoluted" and "incomplete" because it is not clear how exactly it would work.
Another shortfall with the proposal, for instance, is that it does nothing to address those religious organizations that self-insure. Telling the insurance company to provide the birth control coverage for these organizations is meaningless because the organization itself is the insurance company.
For the non-profit religious groups, there will likely be some other issues with the proposal. One concern is that the insurance companies would pay for the additional coverage by increasing premiums for everyone, which means they would still be paying for the coverage of services that are in opposition to their religious beliefs.
Additionally, employees would obtain the coverage because their religious employer objected to providing it. So, it is through the actions of the religious employer that the employee would be obtaining services that is in opposition to its religious teachings. The government would still, therefore, be forcing the religious group to participate in an act it finds morally objectionable.