Lawyer finds anxiety mounting over contraception mandate

By Kevin J. Jones

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Eric Baxter, Senior Counsel at the Becket Fund.

A religious freedom attorney says the threat of massive fines is causing anxiety among religious groups and businesses who object to government-mandated insurance coverage of contraception.

Eric Baxter, senior counsel with the D.C.-based Becket Fund which aims to defend religious liberty nationwide, said many concerns focus on financial questions.

“How do you take account of the risk that you could have millions of dollars in fines imposed against you?” he told EWTN News Nov. 16.

“That anxiety is only increasing as the implementation date approaches.”

The Department of Health and Human Services has mandated that most employers of 50 employees or more provide no co-pay insurance coverage for sterilization and contraception, including some abortion-inducing drugs. Employers in violation face fines of $100 per employee per day.

Catholic organizations are among those particularly affected by the mandate because of their religious and moral objections to the drugs and procedures covered.

“The HHS mandate is a seriously troubling kind of religious discrimination,” Archbishop Samuel J. Aquila of Denver told EWTN News Nov. 16. “The mandate requires Catholic institutions to choose between providing charity to the poor and following the definitive teaching of the Church.

“In that sense, the poor, the elderly, the sick, and children are the truest victims of the mandate.”

Baxter added the mandate places a “significant burden” on religious organizations' ability to plan, budget and hire.

“Most organizations are already trying to get their insurance plans, for example, in the next year in place,” he said.

The lawyer noted that there is a “great deal of anxiety” because employers are subject to lawsuits from individuals who are not receiving required benefits under their health plans.

“That anxiety is only increasing as the implementation date approaches,” he said.

The mandate began to take effect for many employers on Aug. 1. A “safe harbor” provision from the Obama administration delays the implementation for religiously affiliated non-profits until Aug. 1 of next year. The administration has promised a broader religious accommodation, but its details are still unclear and the preliminary plans appear not to meet the needs of conscientious objectors.

Baxter said there is likely some concern among organizations who are unsure whether they are exempt from the mandate. The exemption applies only to non-profit organizations that primarily serve and employ their co-religionists and have the inculcation of religious values as their primary purpose.

“The standards of whether you hire and serve primarily people of your own faith are really very vague,” he said. “How can a church define who it serves? Is it a 51 percent standard? There’s just no clarity about what these things mean.”

Archbishop Aquila said the mandate’s exemption is “particularly troubling” because it defines religious institutions “almost exclusively as houses of worship” and ignores “the incredible charitable work that the Catholic Church does in America.”

“All of the Church’s charitable institutions, and many of its schools, face real discrimination,” he said.

Baxter said it is “unclear” what it means for the exemption to apply only to organizations that inculcate religious values.

Enforcement agencies “could take a very aggressive standard on that,” he said.

The Department of Labor, the Department of Health and Human Services, and the Department of the Treasury all have regulations requiring the controversial coverage.

However, Baxter said he is not sure if the federal departments have different enforcement standards.

“Basically, all organizations will be subject to the same requirement,” he said. “The different organizations would have the ability to construe the regulations differently.”

Archbishop Aquila sees a danger in the ability of the federal government to define mandated coverage as it desires.

“The First Amendment is a promise that no one should have to choose between a public life and their religious integrity,” he said. “Without the consent of our elected officials, the mandate can change in troubling ways. This kind of unchecked discrimination is dangerous.”

Baxter said one solution to the conflict is to expand the religious employers exemption to mirror the broader exemption currently in U.S. law.

“The other option would be to get rid of the contraceptive mandate altogether, although that seems highly unlikely with the Obama administration remaining in office for another four years,” he said.

Legal challenges against the mandate are proceeding in federal courts across the country. There are at least 40 cases with over 110 plaintiffs, including Catholic dioceses, charities, universities, and health care systems. Several Protestant colleges and businesses have also filed suit.

The suits contend that the mandate violates the U.S. Constitution and federal religious freedom protection laws.

The Becket Fund, the Alliance Defending Freedom and the American Center for Law and Justice are among the legal groups representing the various plaintiffs.

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