The Corner

Senator to AG: HHS Mandate Violates Federal Law

Ed Whelan has pointed out on NRO’s Bench Memos blog that the HHS mandate is a violation of the Religious Freedom Restoration Act. Ohio Senator Rob Portman makes this argument in a letter to Eric Holder: 

Last year, the Department of Health and Human Services (HHS) adopted a regulation that forces thousands of religious schools, hospitals, and charities in America to make a painful choice:  pay for medical services that violate their religious beliefs, or incur a massive government fine.  Two weeks ago, HHS responded to concerns voiced by the affected religious organizations by granting a one-year reprieve from the mandate — as though their faith-based objections will fade away in 12 months.  This affront to the right of conscience runs counter to our nation’s tradition of religious liberty and pluralism.  I believe it is also unlawful.  I write today to urge the Department of Justice to advise HHS to withdraw and revise this rule to comply with the Religious Freedom Restoration Act of 1993.

A bipartisan law signed by President Bill Clinton, the Religious Freedom Restoration Act (RFRA) requires the government to reasonably accommodate religious beliefs and practices that conflict with general regulation.  As President Clinton explained at the signing ceremony for RFRA, “the Government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.” This letter explains why the HHS mandate falls far short of that high level of proof. …

Remarkably, in announcing this sweeping mandate under the Patient Protection and Affordable Care Act, HHS did not even mention RFRA, much less attempt to justify its actions under the strict scrutiny test that RFRA requires.

… The HHS mandate violates RFRA because it punishes religious employers who decline to participate in coverage of certain medical services — in particular, sterilization and contraception — that contradict their faith-based commitments.  And crucially, the mandate is not the “least restrictive means” to achieve the agency’s regulatory goals, as HHS’s own actions attest…  

First, the law is clear that individuals engage in protected “exercise of religion” under RFRA when, for bona fide religious reasons, they choose not to engage in certain conduct …The decision of a Catholic hospital, a Christian school, or a similar religious enterprise to decline to participate in insurance coverage of certain medical services that violate their sincere religious beliefs is … an “exercise of religion.”  Indeed, HHS conceded this point, admitting that the mandate will have an “effect on the religious beliefs of certain religious employers.

 Second, HHS’s threat of punitive fines for noncompliance with the mandate is a “substantial burden” under RFRA. … HHS is not merely conditioning a government benefit on compliance with a burdensome rule. … Instead, HHS intends to fine religious employers approximately $2,000 per employee — unless they subsidize medical services that violate the tenets of their faith. 

That penalty could devastate groups that refuse to subordinate their religious beliefs to this bureaucratic edict.  The second largest anti-poverty agency in America, Catholic Charities, employs 70,000 people nationwide; under the HHS mandate, Catholic Charities could face an annual fine in excess of $100 million.  It appears that one Catholic not-for-profit health system in Ohio could stand to pay millions of dollars in annual fines under the mandate.  Considering that the Supreme Court has found a substantial burden based on a fine as little as $5, the burden imposed by the HHS mandate is plainly substantial.

Third, because the HHS mandate substantially burdens the exercise of religion, it can survive scrutiny under RFRA only if the mandate is the “least restrictive means” available to serve a compelling government interest.  

… To the contrary, the agency has demonstrated by its own actions that an exceptionless mandate is not necessary to achieve its insurance coverage goals under the Patient Protection and Affordable Care Act.  HHS has granted over 1,400 waivers — affecting more than 3 million employees — to employers ranging from large fast-food chains like McDonald’s, to major labor unions like the Teamsters.  It has done so primarily to mitigate the economic damage and loss of employer-sponsored coverage that the new health care law threatens.  After granting innumerable waivers based on economic considerations, HHS cannot now argue that an exemption based on religious considerations would impede its regulatory goals.  An agency cannot credibly insist on an iron-clad approach for religious employers, while applying a Swiss-cheese approach to others. …

The Justice Department has had a disappointing record on religious liberty over the past three years — including the Department’s attempt to undermine the long-standing “ministerial exception,” which the Supreme Court unanimously rejected last month.  This latest regulatory overreach presents an opportunity to improve that record and protect the legal rights of Americans of all faiths.  I respectfully urge you to take swift action and advise the Department of Health and Human Services that it cannot violate the conscience rights of millions of Americans. … 

Portman says in a statement: “It’s bad enough that the President’s health care law forces Americans to buy health insurance they don’t want and can’t afford.  Religious employers and charities deserve the protection of a common-sense conscience exemption, and I cannot understand why the Administration would deny them that right.”


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