U.S. bishops’ religious liberty chairman: Proposed new rules on contraceptive mandate ‘disheartening’

WASHINGTON (OSV News) – The U.S. bishops’ religious liberty chairman called it “disheartening” that proposed new rules on the Affordable Care Act’s contraceptive mandate eliminate “protections for moral convictions” of employers who object to being forced to cover contraceptives in their employee health plans.

The proposal was issued by the U.S. Department of Health and Human Services, the Department of Labor and the Department of the Treasury, and aims to end Trump-era rules giving employers more ability to opt out of providing contraceptive coverage in their health plans.

New York Cardinal Timothy M. Dolan, who heads the U.S. Conference of Catholic Bishops’ Committee for Religious Liberty, said the proposal appears “to retain the bulk of the existing religious exemption” but noted that if the proposed rules become permanent, allowing an exemption on moral grounds will end.

“It has been over a decade since the federal government first announced the HHS contraceptive mandate,” Cardinal Dolan said in a recent statement. “The version of regulations that was issued in 2018 provided appropriately clear and robust protections for the exercise of religious beliefs and moral convictions, free from government punishment, and has been upheld by the Supreme Court.”

But now HHS is “proposing to amend them yet again. It is past time for HHS to leave well enough alone in this regard,” the cardinal said in a statement released by the USCCB Jan. 30. On Feb. 2, HHS and the Labor and Treasury departments published their proposed rule in the Federal Register, https://www.federalregister.gov.

Publication of the proposal opened a 60-day comment period for the public to weigh in. (The direct link for submitting a comment is: https://bit.ly/3x4DtYE.)

“These proposed rules would amend regulations regarding coverage of certain preventive services under the Patient Protection and Affordable Care Act,” which in general requires group or individual health insurance plans “to cover certain contraceptive services without cost sharing,” HHS said in its summary on the proposed changes.

“Current regulations include exemptions and optional accommodations for entities and individuals with religious or moral objections to coverage of contraceptive services,” it said, adding that under the proposed rules, “the moral exemption” is rescinded.

The Biden administration said the new rules are necessary to make sure women have access to “contraceptive services” in the aftermath of the U.S. Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization. The ruling overturned the court’s 1973 Roe v. Wade decision that legalized abortion nationwide. With Dobbs, the abortion issue returns to the states.

“We regret that it is necessary to revisit this matter and will file more thorough comments with HHS at the appropriate time,” Cardinal Dolan said.

The Obama administration first implemented the contraceptive mandate as part of the Affordable Care Act in 2012 to force employers to provide their employees with contraceptive coverage through their health care plans or face fines.

One of the most celebrated court challenges to this mandate was the litigation brought against the mandate by the Little Sisters of the Poor on the grounds that it violated the religious freedom rights of any Catholic entity that upholds church teaching against birth control, abortion and sterilization.

Some contraceptives covered by the mandate, they argued, are abortifacients, or abortion-inducing drugs, and some facilitate sterilizations.

The religious order, which cares for the elderly poor in facilities all over the country, ultimately prevailed at the U.S. Supreme Court in July 2020, though the case could come back to the Supreme Court again, according to the Washington-based Becket law firm that has represented the Little Sisters in court.

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