WASHINGTON, D.C., June 28, 2013 ( – On Friday morning, the Obama administration released the final version of the HHS mandate, which requires most employers to pay for contraceptives, abortifacient drugs, and sterilizations for their female employees. While the administration said that the new version addresses religious freedom concerns, this claim was promptly dismissed by pro-life legal analysts, who said the mandate is simply the “same old, same old.”

“When it comes to religious liberty, the Department of Health and Human Services is acting like a kid who doesn’t want to eat his lima beans,” said Eric Rassbach, deputy general counsel for the Becket Fund for Religious Liberty. “Our Constitution and laws require them to protect religious exercise, but they really don’t want to, so they are trying every trick in the book to avoid doing so. But we will keep suing until the courts make HHS comply with its obligations.” 

Anna Higgins, J.D., a spokesperson for the Family Resarch Council, said that the newest version of the mandate proves that the Obama administration is “tone deaf” to religious freedom concerns.


“Since HHS and the Obama administration appear to be unwilling to protect religious liberty despite numerous court decisions against their violations, and regardless of any extended deadline for non-profits, Congress must act again to preserve the constitutional right of religious freedom,” she said. “Until Congress or the courts solve this problem, institutions must decide between civil disobedience coupled with large fines or violating their faith.” 

Health and Human Services (HHS) Secretary Kathleen Sebelius said on Friday that the announcement “reinforces our commitment to respect the concerns of houses of worship and other non-profit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”

The administration said that the new rule finalizes a proposed simpler definition of “religious employer” for exemption purposes in response to concerns raised by some religious organizations.

However, this simpler definition has already been dismissed by critics, who said it will do little to nothing to alleviate religious freedom concerns. The administration confirmed this in its announcement, making clear that the religious exemption from the mandate applies “primarily” to “houses of worship.”

This leaves numerous explicitly religious organizations, such as many hospitals and universities, out in the cold, forcing them to pay for services with which they have moral disagreements. As well, the exemption does nothing to protect everyday American business owners who may have moral objections to abortion or contraception.

In its announcement, the administration also touted a previously proferred “accomodation,” in which some religious organizations will not be required to pay directly for the objectionable coverage. Instead, their insurance companies will provide such coverage separately, “at no cost.”

However, FRC's Higgins discounted this arrangement as an “accounting gimmick.”

Numerous critics had said that under the accomidation the cost of the “free” services will simply be returned to the organizations in the form of higher premiums.

“As we said when the proposed rule was issued, this doesn’t solve the religious conscience problem because it still makes our non-profit clients the gatekeepers to abortion and provides no protection to religious businesses,” said Rassbach.  “The easy way to resolve this would have been to exempt sincere religious employers completely, as the Constitution requires. Instead this issue will have to be decided in court.”

The Becket Fund has led the charge against the mandate, filing many of the dozens of lawsuits pending against it. In many of those cases the plaintiffs have already won signifiant victories, with numerous courts granting temporary injunctions against the mandate and speculating that legal challenges against it are likely to succeed in the long run.

Higgins also said that the “safe harbor” that pushes the deadline for compliance with the mandate back to later this year for some religious organizations does nothing more than grant non-profits “more time to decide whether to violate their fundamental religious beliefs and shows HHS is trying to buy more time as the courts begin to rule against this violation of religious freedom.”

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When the HHS mandate was first released, Cardinal Daniel DiNardo complained that the “religious employer exemption” is “so extremely narrow that it protects almost no one.”

“Jesus Himself, or the Good Samaritan of his famous parable, would not qualify as ‘religious enough’ for the exemption,” he said.