HHS mandate rolled back, Little Sisters exempted, government overreach revealed

“The new rule is a victory for common sense.”

Last Friday, the Trump administration issued new HHS mandate interim rules finally giving relief to the Little Sisters of the Poor and many other religious and faith based groups and institutions burdened by the Obama era mandate to provide contraception in their health care plans, or pay prohibitively heavy fines if they didn’t.

They have been in courts on all levels in many states and at the federal level for the past five years secure protection from coercion to violate their consciences over a ‘contraception delivery scheme’ made up under the guise of ‘women’s preventive health care’. The only thing it prevented was a healthy woman’s natural reproductive cycle.

Becket Law has represented many or most of those cases, and provided ‘HHS Central’ info updates for years. Friday’s new rule changes provided the latest welcomed victory in a string of many.

The rule aligns with the Supreme Court’s unanimous ruling last year protecting the Little Sisters in Zubik v. Burwell protecting the Little Sisters, which says the government cannot fine the religious groups for following their faith. The contraceptive mandate issue went to the Supreme Court five times, and each time the Supreme Court ruled in favor of protecting religious groups.

 

“The new rule is a victory for common sense,” said Mark Rienzi, senior counsel with Becket. “The previous administration pursued a needless and divisive culture war. It was always ridiculous to claim you need nuns to give out contraceptives. This new rule shows that you don’t.”

That it took a government administrative rule to override a previous administrative rule to prove the obvious is a sign of how far the dictatorship of relativism has reached in its grasp of public consciousness, or at least the control of public opinion by government, media, social media and entertainment media, all of which work together often to advance based more on ideology than science and fact.

For facts, this is the best one stop source I’ve found so far, but I’m a footnote reader and you have to read the footnotes to appreciate the scope of research it covers.

In brief, it counters everything the Obama administration claimed in the original ‘federal fiat’ known as the HHS mandate, based on nothing demonstrable.

1) The HHS Mandate is ineffective, even counterproductive.

2) HHS has no meaningful data to support its claims that free contraception causes
improved women’s health.

3) The mandate is unconstitutional.

4) The Mandate is misleading and irresponsible regarding women’s health.

5) The Mandate is demeaning to women…

Each of those points has sub-points, deeply grounded in footnoted source documents, so everyone has access to the full truth to engage in robust public debate.

Becket Senior Counsel Mark Rienzi declared:

“It should be easy for the courts to finalize this issue now that the government admits it broke the law. For months, we have been waiting for Department of Justice lawyers to honestly admit that fact, like the President did in the Rose Garden five months ago,” said Rienzi. “Now that the agencies admit the mandate was illegal, we expect the leadership of the Department of Justice will cooperate in getting a final court resolution so the Little Sisters can stop thinking about lawyers and mandates and return to spending all their energies caring for the elderly.”

 

With an interim rule now in place, the ongoing court battles between religious groups and the federal government may be resolved soon. The interim rule acknowledges that the earlier mandate violated the Little Sisters’ religious liberty and that there are many other ways to obtain contraceptives.

And that’s another statement of the obvious. The Little Sisters of the Poor, and all the other groups defending their rights to religious liberty guaranteed under the First Amendment and the Religious Freedom Restoration Act, have not intended, nor tried, to take birth control away from women nor keep women from obtaining it in the myriad ways available to them before the Obama HHS mandate was issued 2011. (The fact sheet tells the fuller background story.)

That’s common sense. So is this comment from a woman following coverage I provided on radio Friday with a Becket Legal Counsel about the new HHS rules restoring religious freedom and conscience rights to the Little Sisters and others by exempting them from having to provide birth control and other potentially abortifacent drugs, under the guise of health care.

I’ll never understand why insurance companies want to pay for medication that is not used to treat a disease or disorder but is given to try to “fix” something that works perfectly! Most contraceptives are elective and should not be covered. Women take them because they want to, not because they are sick.

Another said this, echoing many such expressions over the past five to six years.

What about the struggling mother who needs blood pressure meds, antibiotics, or other medication? Why mandate free birth control and no other meds? It doesn’t treat illness, but is a carcinogen that thwarts nature. There were just two reasons for the HHS mandate: population control and the elimination of freedom of conscience.

As courts have ruled, and the administration has now agreed, government had no right to compel people, groups, organizations or institutions to provide those birth control and emergency birth control medications. And as Mark Rienzi echoed, the new interim rule was a victory for common sense.

Supreme Court surprise move in Little Sisters case

Justices want more information.

Coming less than one week after hearing the Little Sisters of the Poor case the U.S. Supreme Court took the unusual step

of asking for additional information, telling both sides to discuss alternative ways to avoid forcing religious women to provide services against their faith.
“This is an excellent development. Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty. “We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”

As one journalist who has covered this story since the government issued the HHS mandate in January 2012, and the lawsuits against it that started coming within days or weeks, this threw me (and surprised a lot of court watchers and litigants involved in these cases). Because we’ve had over four years of dozens upon dozens of lawsuits in different courts at different levels making the case and elaborating the details abundantly clearly, that there are alternatives already in place and working to carry out the government birth control delivery scheme (such as government run programs themselves) while exempting major corporations and essentially one-third of Americans from this mandate already (info central has it all here).

But okay, this is good news, reflecting that justices aren’t buying the government’s claim that it already made an “accommodation” for the Little Sisters by having them sign a paper saying they object, but then explicitly granting a third party to provide the drugs and services to which they object in the first place.

Justices deliberating over this case must have finally seen through that smoke screen, because this request for new alternatives suggests a rejection of what the government claimed was an alternative, a false accommodation that wasn’t.

It’s a positive development, claims NRO.

Specifically, the Court wants to know if there are alternative means of providing contraceptives to employees without requiring the Little Sisters to participate in the process:

(snip from the court order):

“For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” (emphasis added)

Before this order came out Tuesday, the court was already pretty much split 4-4 over the religious liberty test involved in the HHS mandate, and especially how it upheld (or didn’t) the Religious Freedom Restoration Act. Justice Scalia’s untimely death impacts this decision most notably. But Justice Breyer struck some in the courtroom as unconvinced by the government’s arguments last week. If just one justice joins the four expected to uphold religious freedom rights violated by the HHS mandate, it could finally end this unbelievable saga of government infringement on one of the most basic, fundamental and cherished freedoms we have.

Obama declares Religious Freedom Day

In another twist on news that doesn’t square with other news, and words by the president that don’t match actions by the president…

Mr. Obama declared January 16th Religious Freedom Day. Here’s the Proclamation:

Foremost among the rights Americans hold sacred is the freedom to worship as we choose.

Right there is a tip off to where his administration has been going with religious liberty in America, transitioning it to the freedom to worship.

But immediately afterward he makes this fine set of points:

Today, we celebrate one of our Nation’s first laws to protect that right — the Virginia Statute for Religious Freedom. Written by Thomas Jefferson and guided through the Virginia legislature by James Madison, the Statute affirmed that “Almighty God hath created the mind free” and “all men shall be free to profess . . . their opinions in matters of religion.” Years later, our Founders looked to the Statute as a model when they enshrined the principle of religious liberty in the Bill of Rights.

Because of the protections guaranteed by our Constitution, each of us has the right to practice our faith openly and as we choose…Americans of every faith have molded the character of our Nation. They were pilgrims who sought refuge from persecution; pioneers who pursued brighter horizons; protesters who fought for abolition, women’s suffrage, and civil rights. Each generation has seen people of different faiths join together to advance peace, justice, and dignity for all.

Define “all,” because different faiths have joined together over several decades to advance rights that don’t apply to the entire class of human beings who exist in the mothers’ wombs but are as yet unborn, and over most of 2012 to advance rights that are being denied employers who morally object to his HHS mandate. People who are battling in courts across the country to defend “the right to practice our faith openly and as we choose”.

The president continues:

As we observe Religious Freedom Day, let us remember the legacy of faith and independence we have inherited, and let us honor it by forever upholding our right to exercise our beliefs free from prejudice or persecution.

Indeed.

The Becket Fund for Religious Liberty issued this statement soon after the Proclamation was released.

“Today we welcome the President’s Proclamation on Religious Freedom Day. However, we deeply regret that the President does not mention the HHS mandate, which was issued by his administration and which is now trampling the religious freedom of millions of individuals, schools, hospitals, charities, and businesses throughout our nation.  Perhaps this mismatch between words and deeds can be explained by the phrase “freedom of worship,” which the President uses in the first sentence of his proclamation. Religious freedom certainly includes worship, but it extends beyond the four walls of a church. If it is not to be an empty promise, religious freedom must also include acting on one’s deepest religious beliefs when one is feeding the poor, caring for the sick, educating the young, or running a business. The HHS mandate ignores that simple truth and is therefore out of step with our traditions and our laws, which promise religious freedom for all.”  — Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty

So again I’m left wondering whether the president hears his own statements and considers them. Because actions speak louder than words, and his are saying contradictory things.

Obamacare HHS mandate gets judicial correction

It was always wrong. But because it was issued by executive fiat, its violation of law had to go through the process of being tried, and there are many lawsuits standing against it.

This one scored a victory.

Today, a federal appeals court in Washington, D.C. handed Wheaton College and Belmont Abbey College a major victory in their challenges to the HHS mandate.  Last summer, two lower courts had dismissed the Colleges’ cases as premature.  Today, the appellate court reinstated those cases, and ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects the Colleges’ religious freedom.

This is major.

Health and Human Services Secretary Kathleen Sebelius cannot enforce the Obamacare contraception mandate as it is written, but must follow through on a promise to rewrite the rule to accommodate religious liberty, a federal appeals court ordered.

The Obama administration “represented to the court that it would never enforce [the mandate] in its current form against the appellants or those similarly situated as regards contraceptive services,” the three judges hearing the case wrote in their order.  The Obama team made that promise during oral arguments against Wheaton College and The Becket Fund for Religious Liberty, which sued over the contraception mandate but lost at the lower court level.

“There will, the government said, be a different rule for entities like the appellants .  .  . We take the government at its word and will hold it to it,” the judges wrote.

They ruled that the Obama administration must rewrite the regulation by August 2013 and provide updates to the court every 60 days. If the government fails to do so, the lawsuits may proceed.

The court also noted that the Obama administration had not made such an expansive pledge outside the courtroom.

“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” The Becket Fund’s Kyle Duncan, who argued the case, said in a statement.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

Yesterday’s ruling marks the second time in two weeks that a judge has decided that Obama’s promise to change the rule eventually is an insufficient remedy to the religious liberty issues raised by opponents of the mandate.

“There is no, ‘Trust us, changes are coming’ clause in the Constitution,” Judge Brian Cogan wrote in his ruling in favor of the Archdiocese of New York two weeks ago. “To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction.”

It’s about time it gets applied.