The Biden administration is restarting the HHS mandate wars in what one expert calls an act of political malice.
In a formal proposal to create a new regulation, the Biden administration is trying to strip away the rights of organizations to refuse to comply with the HHS mandate because they have a moral objection to abortion, contraceptives, or sterilization.
If you’re feeling a sense of déjà vu, it’s with good reason. The HHS mandate has been subject to extensive litigation and faith-based employers have won victory after victory against it. But the Biden administration is now going after non-religious employers who have a “moral” but not necessarily “religious” objection.
First, a primer:
“The HHS mandate” is the term commonly used to refer to the requirement under Obamacare for employers to pay for abortifacients, contraceptives, and sterilization in their health insurance plans.
The text of Obamacare actually says little about the issue. Instead, it gave the Department of Health & Human Services (HHS) broad authority to create regulations to accomplish the intent of the bill.
The HHS mandate was first implemented by the Obama administration in 2013. It originally contained an exemption for religious organizations, but the exemption was so narrow that even some churches couldn’t qualify.
After multiple Supreme Court cases – including the Hobby Lobby and Little Sisters of the Poor victories – faith-based organizations and businesses that object to the HHS mandate on religious grounds are exempt. And after the Trump administration implemented a rule protecting them, so are non-religious organizations and businesses which object only on moral grounds.
The Biden proposal would rescind the Trump rule and force non-religious employers with only a moral objection to comply.
According to the Biden administration, about 100 employers covering 125,000 employees – representing less than 0.1% of the workforce – which are currently exempt would be forced to comply. An example of a non-religious group with moral objections to the HHS mandate would be the national pro-life organization March for Life, which previously sued the Obama administration on the matter and won in a lower court before the case was mooted by the Trump rule.
CatholicVote spoke with a leading expert on the issue, Roger Severino, who was a top official in HHS during the Trump administration and worked on the Trump-era rule. According to Severino, the Biden proposal is vindictive and malicious.
“It’s all politics,” he says. “They have to answer to their radical pro-abortion base. They couldn’t stomach the fact that they have lost this issue at every stage at the Supreme Court, and they want to show that they are continuing to resist in the wake of the Dobbs ruling,” in which the Supreme Court overturned Roe v. Wade.
Severino contends the Biden administration’s claims to be solving a real problem are disingenuous.
“There hasn’t been a lack of availability of contraceptives for anybody who wants them,” he points out. “So this is a purely political stunt to try to send a message to institutions with moral objections to the sexual revolution.”
He says the proposed rule would be a loss not just for the employers affected but for the entire nation.
“The Catholic Church was the pre-eminent institution that pushed the moral – not just religious – exemptions … because it’s not just a religious argument. It’s natural law; it’s human rights,” he explains.
“It would be a tremendous loss for society if we severed the two and said, ‘Only your unscientific, irrational, superstitious religious beliefs get any protection because that’s the only reason you would have such a bigoted view of these questions.’ We don’t want to be in that boat,” Severino says.
CatholicVote followers can play a role in stopping – or at least slowing down – the Biden rule.
Under federal law, the administration must accept comments from the public on the proposed rule through April 3. The comments are entered into the record and the Biden administration must review and respond to them. The more comments are submitted, the longer it will take them to implement the rule change.
“The next presidential election is not far away, and the longer we can drag this out, the better chance we have at stopping it altogether,” says Tom McClusky, CatholicVote’s director of government affairs. “If we can drag the process out into the next administration, a new pro-life president could prevent it from being enforced.”
There’s one catch.
“If multiple comments are identical, the administration can treat them as one,” Severino says. “The more unique comments there are, the longer it’ll take.”
CatholicVote has created a way for individuals to submit an official comment within minutes. CatholicVote’s Quorum action center connects directly to the federal comment system and makes it easy for Catholics to do their part.
The Quorum system asks for your name and address, then allows you to write your comment. While there is a pre-written comment which supporters can submit as-is, CatholicVote encourages people to put comments in their own words so the Biden administration is forced to review them all and respond to each.
“Catholics have been at the forefront of the Obamacare battle for a decade now,” CatholicVote President Brian Burch said. “We’ll keep going until we’ve won on every front.”