The Christian Medical Association's comment submitted to the U.S. Department of Health and Human Services on the Obama administration's contraceptives and sterilization mandate is presented below.
Centers for Medicare & Medicaid Services Department of Health and Human Services Attn: CMS–9968–ANPRM
P.O. Box 8016
Baltimore, MD 21244-1850
Re: Advance notice of proposed rulemaking (ANPRM), File Code CMS-9992-IFC2:
The Legal Necessity for Comprehensive Exemptions for All Religious Objections from the PPACA Mandate to Provide, Participate in or Pay for Health Insurance Coverage of Abortion, Abortifacients, Contraception, Sterilization and
Counseling and Information Regarding the Same
Dear Sir or Madam,
The 16,000-member Christian Medical Association (CMA, www.cmda.org), the nation's largest association of faith-based health professionals, strongly opposes the U.S. Dept. of Health and Human Services (HHS) contraceptives and sterilization rule as unlawful, unprecedented, unwise and un-American.
CMA views the mandate as violating constitutional and statutory protections of religious freedom and conscience. The mandate also undermines the American values of free enterprise and, more importantly, respect for human life.
Given the expressed unyielding determination of the administration to force the provision of controversial products and services virtually regardless of religious objections, our organization deems as wholly inadequate any scheme to "accommodate" conscience objections such as by simply reassigning the paperwork to health insurers or third-party administrators.
Specifically, CMA objects to the rule because:
1. The mandate is unlawful and unprecedented in that it:
a. violates the Religious Freedom Restoration Act (“RFRA”), by imposing a substantial burden on religious beliefs without employing the required least restrictive means, and by failing to demonstrate a compelling governmental interest (since as even the President has attested, contraceptives are readily available to virtually all women);
b. violates the Weldon Amendment, which bans federal programs from requiring abortion coverage, by including drugs such as Ella that the Food and Drug Administration notes have the potential to end the life of a living human embryo;
c. violates abortion-related provisions of the Patient Protection and Affordable Care Act (PPACA);
d. violates the President's assurances expressed in his Executive Order 13535 that PPACA would in no way be used to require abortion coverage;
e. violates the Free Exercise Clause of the First Amendment, by promulgating requirements that are not “generally applicable” to all, as demonstrated by many exemptions for secular, but not religious, reasons;
f. violates the First Amendment rights of free speech, religion and association by compelling education, counseling and information supportive of the very products and services included in the mandate that are objected to by groups coerced into participating;
g. violates the equal protection clause of the Fourteenth Amendment, by granting government bureaucrats virtually unlimited discretion in parceling out exemptions;
h. narrowly defines “religious employers” with stipulations unprecedented in federal law--and this despite the 9-0 rebuke of the administration by the Supreme Court over a similar issue in the recent Hosanna-Tabor case;
i. disregards the unambiguous, bipartisan will of Congress expressed in 16 laws, enacted over four decades, that specifically protect “religious beliefs and moral convictions” [emphasis added].
2. The mandate is pragmatically unwise, in that it leaves conscientious objectors with no positive options whatsoever. We must either violate deeply held moral convictions, discontinue health care coverage for employees, or pay huge fines that will drain funds otherwise used to help the poor, the sick and other ministry beneficiaries.
3. The administration offers no accommodation options whatsoever to protect secular conscientious objectors. Such discrimination against non-religious objectors--including employers, employees and insurers--disregards historical conscience protections and standards of medical ethics. Millions of individuals and organizations through the ages have based their moral convictions on secular ethical standards such as the millennia-old Hippocratic oath or the more recent Nuremburg code.
4. The administration is instituting a decidedly un-American policy that (a) classifies pregnancy as a disease requiring mandated treatment and (b) advocates the prevention of child-bearing as a health care cost savings. Unlike communist leaders in countries like China, Americans historically have not viewed pregnancy as a disease or children as an unwelcome product posing a cost burden.
5. No payment scheme developed to comply with the mandate can avoid moral compromise for faith-based objectors. If the insurer increases the premiums of objecting employers to recoup the costs of the mandate, faith-based employers clearly are forced to subsidize, through increased premiums, the items considered morally reprehensible. Increasing the premiums only of the non-objecting employers would unfairly force them to pay for the religious objections of objectors, and the government would essentially be compelling the subsidy of a religious group. Either option violates the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."
6. The mandate tramples Fifth Amendment protections ("nor shall private property be taken for public use, without just compensation") by imposing costs on businesses while depriving them of the liberty to profit. The alternative to raising premiums that the administration advocates in the ANPRM--forcing insurers to cover the cost without raising premiums--is indefensible and an assault on the free enterprise system. The administration's assertion that providing contraceptives without cost-sharing is a break-even or profitable proposition for insurers is a highly dubious claim. A contraceptive implant offered through the billion-dollar "nonprofit" Planned Parenthood, for example, costs $800 every three years, and a sterilization surgery costs up to $6,000. Insurers apparently do not subscribe to the HHS calculus, as demonstrated by a recent Reimbursement Intelligence survey showing that no major insurers believed they would save money through the mandate, and by the obvious fact that insurers, who are quite competent at assessing risk and benefit, have not already implemented the practice.
7. While administration officials have talked at length about compromise and promising accommodation of religious liberty, nothing has actually changed in the final rule.
The administration retains only two realistic options regarding this unlawful, unprecedented, unwise and un-American policy: rescind the policy or face defeat in the courts. The CMA encourages rescission of this policy in its entirety.
Vice President for Government Relations
Christian Medical Association - Washington Office
P.O. Box 16351
Washington, DC 20041