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.

High Court on Big Government v. Little Sisters

Supreme Court Justices’ unanimous ruling favors the nuns.

It was sort of a non-decision, but all eight justices jointly agreed to vacate lower court rulings, call on both sides to work things out better (which was really a directive to government lawyers), and bring sanity to a long, unnecessary and costly ordeal that has run through the court system across the country over a federally mandated contraceptive delivery scheme that already exempted major corporations and millions of Americans.

Enough already. So said the ruling, in so many words.

The parties, the court said, should have another opportunity to work out a way to deliver contraceptives that doesn’t violate the religious objections of the Little Sisters and their co-plaintiffs.

Most important, the Supreme Court took away the administration’s tool for bullying: The government, it said, “may not impose taxes or penalties” on those who refuse to authorize their plans to provide the contested coverage.

It was so targeted against Catholic and other Christian groups, it had to be reconsidered.

“The Little Sisters won, but what this unanimous ruling shows is that there was never a need for anyone to lose,” said (Becket Fund for Religious Liberty legal counsel Mark) Rienzi. “The government will still be able to meet its goal of providing these free services to women who want them—not just for those with religious plans—but for the tens of millions in exempted corporate and government plans.”

The government always had that ability, was already doing it in those already exempted, and never needed to choose this controversial challenge to religious liberty in America.

…the opinion is an obvious rebuke to the Obama administration — and rightly so. The Obama administration has shown no compunction about using the full force of the federal government to coerce a group of nuns into violating their religious vows. But following oral arguments in March, the Court requested supplemental briefs from both parties addressing whether the government could provide contraception coverage without entangling religious nonprofits, and the government grudgingly admitted that it was possible. According to the Court, the “substantial clarification and refinement” of the parties’ positions suggests that a compromise satisfactory to both sides is possible.

If not for the government’s obstinacy, that would have been possible long ago. HHS had already exempted an enormous number of employers from the mandate, among them large corporations — Exxon, Pepsi, and Visa — and government entities, including New York City and the U.S. military. Tens of millions of American employees have insurance plans exempted from the mandate. Yet the Obama administration has insisted on foisting its fiat on nuns, archdioceses, Christian colleges, and the like. The liberals on the Court could have sanctioned this contemptible imposition. A 4–4 split would have left the lower courts’ rulings in place, and three of the four courts had ruled against the Little Sisters or their co-plaintiffs. The Court’s willingness to vacate those decisions suggests that, despite its left-leaning majority, this Court is not entirely hostile to religious liberty. This is, recall, largely the same Court that ruled unanimously against the Obama administration in Hosanna-Tabor when the federal government claimed for itself the power to determine who is and is not a “minister.” (Emphasis added)

Hosanna-Tabor was decided unanimously on January 11, 2012. Nine days before the federal government turned around and claimed for itself again the power to determine what a religious ministry, institution and employer was, and what it could and must do. It took four years and four months, and one fewer justice, for the Supreme Court unanimously to rule again in favor of this fundamental freedom protected by law.

In the nearly six months left before the presidential election, the parties’ and candidates’ views of religious freedom will play a more important role in debates, townhalls, and campaigns, as they should.

Finally, Supreme Court rules on contraceptive mandate

Yes, the Obamacare HHS mandate does violate fundamental rights, said justices willing to state the obvious.

The Religious Freedom Restoration Act (RFRA), signed into law under President Bill Clinton after near unanimous approval in the House and Senate in 1993, applied a two-pronged test to any attempt by government to impose a federal law that substantially burdens citizens’ free exercise of their religion. The first test requires the government to show it has a ‘compelling interest’ in enforcing such a sweeping law, and the second is that government was seeking the ‘least restrictive means’ possible to achieve its ends. There’s no way this federal fiat issued in January 2012 could possibly pass either of those tests.

The Becket Fund for Religious Liberty dubbed the HHS mandate ‘a contraception delivery scheme’, which describes it well. As the court cases piled up across the country and spectrum of employers from non-profit organizations to for-profit business owners, academic institutions to healthcare providers (see Little Sisters of the Poor v. Sebelius), government lawyers could not defend their claims coherently.

Here’s the breakdown of current cases against the federal government when those arguments have been heard in courts at all levels. Monday’s Supreme Court decision on Hobby Lobby will impact a great number of others, and certainly scored a victory for religious freedom.

The U.S. Supreme Court granted a landmark victory for religious liberty today, ruling in the case of Burwell v. Hobby Lobby that individuals do not lose their religious freedom when they open a family business. The court ruled 5-4 in favor of David and Barbara Green and their family business, Hobby Lobby, ruling that they will not be required to violate their faith by including four potentially life-terminating drugs and devices in the company’s health insurance plan or pay severe fines.

“This is a landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This ruling will protect people of all faiths. The Court’s reasoning was clear, and it should have been clear to the government. You can’t argue there are no alternative means when your agency is busy creating alternative means for other people.”

The decision also has important implications for over 50 pending lawsuits brought by non-profit religious organizations, such as the Little Sisters of the Poor, which are also challenging the mandate. In two different respects, the Supreme Court strongly signaled that the mandate may be struck down in those cases too. First, it rejected the government’s argument that there was no burden on the Green’s religious exercise because only third parties use the drugs. Second, it held that the government could simply pay for contraception coverage with its own funds, rather than requiring private employers to do so.

“The handwriting is on the wall,” said Windham. “The Court has strongly signaled that the mandate is in trouble in the non-profit cases, too.”

The Court upheld a June 2013 ruling by the Tenth Circuit Court of Appeals protecting Hobby Lobby and the Green family from the Health and Human Services (HHS) mandate. That mandate requires Hobby Lobby and co-founders David and Barbara Green to provide and facilitate, against their religious convictions, four potentially life-terminating drugs and devices in the company’s health insurance plan. The Greens argued that the mandate substantially burdened their religious beliefs in violation of a federal law, the Religious Freedom Restoration Act.

In an opinion by Justice Alito, the Court stated:

The plain terms of RFRA make it perfectly clear that Congress did not discriminate . . . against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. . . . Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

Justice Kennedy’s concurrence added: “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”

There will be plenty to cover and analyze on this in the days to come. But here’s some good background worth reading, artfully written with accurate citations by creative thinker Tod Worner, news coverage as a play in three acts. Written just over two months ago, after oral arguments were presented in the Supreme  Court by plaintiffs and government lawyers in the HHS mandate cases justices would decide later, it ended with this:

Plaintiffs and defendant would rest. The Court would adjourn. The verdict will come to us in June.

Who is this young, promising man – this main character in our play? Perhaps we can know by considering him in each act: The Speech, The Executive Order, The Court Case. Perhaps.

This play, in three acts, is far from finished. There is more to be said and done. Will it end as a comedy? Or a tragedy? How will it end? How, indeed? We shall see. We shall see.

We now see how the Supreme Court ruled on this day in this pivotal case. We’ll see what comes next. Stay tuned.

Justice Sotomayor’s New Year’s Eve surprise ruling

Few knew she suddenly ruled against Obamacare’s HHS mandate. But they sure noticed her dancing in Times Square that night.

Nobody knew it was coming. So how odd it was to see the breaking news that Justice Sonia Sotomayor had just ruled to delay the Obamacare birth control mandate in th e waning hours of New Year’s Eve.

Sotomayor acted on a request from an organization of Catholic nuns in Denver, the Little Sisters of the Poor Home for the Aged. Its request for an emergency stay had been denied earlier in the day by a federal appeals court.

The government is “temporarily enjoined from enforcing against applicants the contraceptive coverage requirements imposed by the Patient Protection and Affordable Care Act,” Sotomayor said in the order.

Sotomayor, who was in New York Tuesday night to lead the final 60-second countdown and push the ceremonial button to signal the descent of the Times Square New Year’s Eve ball, gave government officials until 10 a.m. EST Friday to respond to her order.

I see this not three hours before that midnight ball drop in Times Square, not knowing she’s there. I’m watching Twitter and Facebook and online news sites erupt with word about the ruling. And then I see her dancing in Times Square.

What just happened?!

Becket Fund explains.

Tonight the Little Sisters of the Poor received a temporary injunction from the Supreme Court protecting them from the controversial HHS contraceptive mandate. The injunction means that the Little Sisters will not be forced to sign and deliver forms tonight authorizing and directing others to provide contraceptives, sterilizations and drugs and devices that cause abortions (see video).

”We are delighted that the Supreme Court has issued this order protecting the Little Sisters,” said Mark Rienzi, Senior Counsel for the Becket Fund. “The government has lots of ways to deliver contraceptives to people–it doesn’t need to force nuns to participate.”

The order was issued by Supreme Court Justice Sonia Sotomayor, who is the Justice assigned for emergency applications from the Tenth Circuit Court of Appeals. Justice Sotomayor also ordered the federal government to file a brief in response to the Little Sisters’ application.

Prior to the order, preliminary injunctions had been awarded in 18 of the 20 similar cases in which relief had been requested.

”Virtually every other party who asked for protection from the mandate has been given it,” said Rienzi. “It makes no sense for the Little Sisters to be singled out for fines and punishment before they can even finish their suit.”

The Little Sisters are joined in the lawsuit by religious health benefit providers, Christian Brothers Services, Christian Brothers Employee Benefits Trust. The Plaintiffs are also represented by Locke Lord, a national law firm, and by Kevin Walsh, a law professor at the University of Richmond.

To date, there are currently 91 lawsuits challenging the unconstitutional HHS mandate.

In fact, one expert told me Monday that he had expected the administration to drop the thing after winning the 2012 election, and admitted surprised that they’re as dug in as they are in pressing something so oddly ungrounded and without any merit whatsoever.

The Chicago Tribune editors published this editorial following Sotomayor’s ruling.

The administration has set out a complicated standard for whether a company or organization should be exempt from these rules. On one end stand for-profit corporations, which aren’t exempt. At the other end, churches and some other religious institutions, which are excused. In the middle are many groups that have a religious affiliation and a faith-based mission, such as Catholic-affiliated universities and hospitals, and the Little Sisters of the Poor in Colorado.

Earlier this week, Archbishop Joseph Kurtz, the head of the U.S. Conference of Catholic Bishops, complained in a letter to Obama that while the administration had “relaxed the rules” for many Americans’ health plans, “one category of Americans … has been left out in the cold: Those who, due to moral and religious conviction, cannot in good conscience comply” with the contraception mandate.

That provision, he added, “harshly and disproportionately penalizes those seeking to offer life-affirming health coverage in accord with the teachings of their faith.”

The administration has made numerous exceptions to the rules of Obamacare — including delay in the insurance mandate for employers and many individuals. About a year ago, the Department of Health and Human Services announced it would draw a distinction between religiously affiliated employers and secular employers. But it still sought a guarantee that their employees would have contraceptive coverage.

We’re not arguing against insurance coverage of contraceptives. But a government mandate that religious organizations violate the tenets of their faith is an unconstitutional reach.

Right. As they conclude, Obamacare is the law of the land. But the constitutional protection of religious freedom is more deeply and historically embedded in this country’s foundation, and there’s no defensible reason why it might be denied – or even challenged – now.

Dear Department of Health and Human Services

You are wielding unchecked power, and you are out of control. Please pay heed.

A couple of months ago, HHS announced a new “preventive care” package of services for women to be included in insurance coverage that defied reason and morals. It drew plenty of outcries for review and oversight. HHS left open a window of time for “public comment” that closed at midnight September 30th.

In the waning hours of that alleged openness to reaction by American citizens and organizations and institutions, more and more voices have come out criticizing that federal department’s decision to require most health insurers to cover contraceptives, the morning-after pill, and elective sterilization.

The US Bishops Conference has been on this major campaign of awareness and initiative of engaging Congress for some months, since word got out that HHS was even considering such a move. It caught on, across the country.

How open will HHS be to the public input they got? Two thoughts…

The first is how inconsiderate they were to a broad spectrum of opinion when devising this plan to begin with. HHS did not consult the nation’s largest provider of healthcare services, which is Catholic hospitals and medical centers and institutions. The narrow group they convened foretold the conclusion.

The medical committee behind the federal government’s impending mandate that insurers cover birth control without co-pay is populated by board members of NARAL and Planned Parenthood, as well as major donors to politicians favoring legal abortion.

The pro-life organization HLI America says public records show the ideological roots of the Institute of Medicine (IOM) committee, which recommended virtually all private health insurers pay for FDA-approved contraception as essential “preventive care” under the new health care law, including drugs that can cause early abortions.

IOM, a non-governmental organization tapped by federal health officials to recommend the new guidelines, describes itself on its website as “provid[ing] unbiased and authoritative advice to decision makers.”

That flies in the face of truth. Here’s the breakdown:

Among the 15-member IOM Committee on Preventive Services for Women are Claire Brindis, a member of the board of directors of the NARAL Pro-Choice America Foundation; Angela Diaz, former board member of Physicians for Reproductive Choice and Health; Paula A. Johnson, Chairwoman of the Planned Parenthood League of Massachusetts and upcoming recipient of NARAL’s 2011 “Champion for Choice” award; Magda G. Peck, the former board chairwoman of Planned Parenthood of Nebraska and Council Bluffs; and Alina Salganicoff, Vice President and DIrector of Women’s Health Policy at the Kaiser Family Foundation, which strongly favors abortion and contraception on demand.

In fact…

Dr. Anthony Lo Sasso, the lone member of the IOM committee dissenting from the report, concurred that the findings were tainted by advocacy goals.

“Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy,” he wrote. “An abiding principle in the evaluation of the evidence and the recommendations put forth as a consequence should be transparency and strict objectivity, but the committee failed to demonstrate these principles in the report.”

This is the time to right that. Which brings up the second thought:

We have ample evidence of the body and weight of public comment HHS received in the final days last week. And it’s not going to stop becoming public.

There’s a large alliance of professional organizations who issued this. Bottom line: the mandate violates the US Constitution, among other things.

The National Catholic Bioethics Center issued this letter to HHS Secretary Kathleen Sebelius. It is exhaustively detailed, but gets to the same bottom line. The mandate is unconstitutional.

In summary, treating pregnancy as a disease that should be prevented is medically, socially, and anthropologically inaccurate and sexually biased. By treating pregnancy as a disease to be prevented one can only conclude that the treatment for such a “disease” is an abortion. Thus, the Rule is acting against the very provision in the PPACA and its legislative history, that state that abortion is not one of the “preventive services” to be included in the “services” provided. Yet the Rule clearly mandates coverage at no cost for contraceptives and sterilizations to prevent the “disease” of pregnancy, genetic screening of existing pregnancies whose ”treatment” will for some include abortion, and abortifacients which cause the termination of the newly conceived human being. These and other contraceptives are presented inaccurately as a deterrent to unplanned pregnancies, when the very data presented by the IOM to support such claims belie these claims. Empowering women to know and act with their bodies to manage their fertility in a responsible manner is the real answer to the physiological, social, and psychological problems created by a culture encouraging women to engage in unhealthy life styles. Then, forcing others to participate in and to pay for the life style choices of others, which clearly and demonstrably have been detrimental, is the utmost violation of the United States Constitution.

In the waning hours of “public comment”, Notre Dame joined the swelling chorus of voices.

President Father John Jenkins, C.S.C., wrote in a Sept. 28 letter to HHS Secretary Kathleen Sebelius that the mandate places the school in the “impossible position” of having to defy Church teaching…

The mandate “would compel Notre Dame to either pay for contraception and sterilization in violation of the church’s moral teaching, or to discontinue our employee and student health care plans in violation of the church’s social teaching,” Fr. Jenkins said.

Notre Dame joins 18 other Catholic universities and colleges, as well as the U.S. bishops and numerous other Catholic organizations that have reacted strongly against the proposition.

Like the Catholic University of America.

If we comply, as the law requires, we will be helping our students do things that we teach them, in our classes and in our sacraments, are sinful — sometimes gravely so. It seems to us that a proper respect for religious liberty would warrant an exemption for our university and other institutions like it…

It does not take a college education to see the hypocrisy in offering to pay for the very services we condemn in our theology classes and seek forgiveness for in our sacraments. It should not be the business of the federal government to force Catholic schools and other Catholic institutions into such a collective violation of our own conscientious beliefs.

The list goes on. Countless individuals wrote HHS. Like nurse Nancy Valko, a noted bioethics expert and human rights activist.

I have been an RN for 42 years and I currently work in an intensive care unit in St. Louis, Mo. I must protest the current mandate regarding women’s health and conscience rights. Conscience rights serve not only a bulwark against workplace discrimination and harassment for us health care providers but also as a protection for our patients. When we cannot refuse to participate in or even discuss practices we deem unethical, we also deprive our patients of informed choices based on comprehensive information. When health care providers become mere technicians of government mandates, we cease to be ethically grounded professionals dedicated to the welfare of our patients. Right now, the topic is abortion and contraception but the dismantling of conscience rights will inevitably extend to other areas such as assisted suicide and euthanasia. This leaves our patients vulnerable to coercion, manipulation and even death in an ever-changing health care system. I implore you to rethink this mandate.

So now what? HHS can close their window and tune out or reconsider. But the real public comment is only growing, and they cannot control that.