Health and Human Services Department (HHS) Secretary Kathleen Sebelius


On Monday, hundreds of thousands of public comments flooded the Department of Health and Human Services (HHS), as individuals and groups expressed concern with the Obama Administration’s continued trampling on a fundamental freedom. Many public comments expressed continued opposition to the coercive HHS mandate that requires almost all employers to provide health insurance coverage of abortion-inducing drugs and devices, contraception, and sterilization—regardless of moral or religious objection.

After more than a year of public outrage, over 50 lawsuits against the anti-conscience mandate, and a federal judge’s demand that HHS fix its coercive mandate, the Administration published a “notice of proposed rulemaking” (NPRM) on February 6. That proposed rule neither changes the underlying mandate finalized in law and currently in effect nor provides any workable or adequate solutions to the mandate’s trampling on religious liberty.

As Alliance Defending Freedom wrote in a public comment on Monday on behalf of over 20 Catholic colleges, “No other federal rule has so narrowly and discriminatorily defined what it means to exercise religious conscience, and no regulation has ever so directly violated plain statutory and constitutional religious freedoms. The NPRM does nothing to change that fact.”

The Administration’s proposal makes a slight alteration to the mandate’s offensively narrow religious exemption, but would still allow only formal houses of worship and their integrated auxiliaries (e.g., a church-run soup kitchen) a real reprieve from the mandate. Countless other employers—like schools, social service agencies, businesses, and many others— would still be forced to comply with the mandate regardless of moral or religious objections.

Philip Ryken, president of Wheaton College, which is suing over the coercive rule, asked the Administration to “eliminate the mandate altogether” to truly protect religious liberty, noting:

By denying Wheaton the exemption other religious groups receive, the NPRM treats Wheaton as a second-class religious organization. Wheaton has the right to be religious without being pressured by the government to affiliate with a larger church organization in order to protect its rights.

The NPRM also outlines an update to the Administration’s proposed “accommodation” for the many objecting employers who don’t qualify for the narrow religious exemption. The proposal would not only fail to adequately address the mandate’s assault on religious liberty, but, as the Galen Institute points out in its public comment on the NPRM, would also create new chaos in the insurance marketplace by placing impractical and unworkable burdens on insurance issuers.

Moreover, this so-called fix would only apply to certain religious nonprofit organizations, leaving many others—such as business owners, individuals, and non-religious nonprofits—without any recourse from the mandate.

Only the precious few who are deemed religious enough by the Administration would be afforded true protection of their religious freedom and the ability to live and act in accordance with their beliefs. For everyone else, the Administration is clear: Get over your deeply held beliefs and get in line with the anti-conscience mandate. The alternative is devastating fines to the tune of up to $100 per day per employee for offering non-compliant health plans.

Notably, business owners are actually explicitly excluded from the proposed “accommodation.” This means businesses such as Tyndale House, the nation’s largest Bible publisher, or Hobby Lobby, an arts and crafts retailer, would still be forced to fund coverage of drugs in violation of their beliefs.

“The NPRM’s position that no for-profit business should be exempted for religious reasons relegates the conscience rights of these businesses and their owners to a subordinate position, behind political expediency and bureaucratic convenience,” writes the Becket Fund for Religious Liberty, which is representing a number of organizations, including a for-profit business, in suits against the mandate.

Instead of upholding its duty to protect the fundamental freedoms of all Americans, the Administration persists in bureaucratic tinkering with a mandate that is deeply flawed and currently threatening the faith, work, and livelihoods of countless businesses, individuals, and organizations. The Obama Administration should heed the recommendations of many Americans to rescind its offensive, coercive mandate. To truly protect Americans’ liberty more generally, however, Congress must repeal Obamacare.