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Another round in the ‘HHS mandate’ fight?

A Pillar Interview, November 26, 2021, featuring L. Martin Nussbaum

Federal court filings revealed this week that the Biden administration could be planning to remove religious freedom exemptions and protections from federal rules issued by the Department for Health and Human Services — a change that would require Catholic employer healthcare plans to cover medical procedures in violation of Catholic teaching, including abortion and gender reassignment surgery.

A proposed HHS policy change could also require healthcare workers to perform medical procedures to which they object, even against their own conscience or religious beliefs.

The “HHS mandate” has been the subject of frequent litigation since it was issued during the Obama administration — and the possibility of a rule change could renew legal battles over the mandate.

So, what’s going on?

To find out, theologian Charlie Camosy talked with L. Martin Nussbaum, general counsel of the Catholic Benefits Association.

This interview has been edited for length and clarity.

Can you tell us about the Catholic Benefits Association? What is it? What kind of institutions are part of the CBA?

The CBA was formed in the wake of the Obama administration’s 2010 regulation that required employers’ health plans to cover contraceptives, abortifacients, sterilization, and related counseling.

It is a 501(c)(3) Catholic ministry that exists to help its members provide healthcare benefits, consistent with Catholic values, for their employees. CBA accomplishes this by providing legal, ethical, and practical advice to its members; by giving them template materials for their human resources architecture; and, when there is no other alternative, filing suit on their behalf to restrain the government from enforcing mandates contrary to Catholic values.

The Catholic Benefits Association has almost 1,200 members, including 72 dioceses and archdioceses. In addition, it has almost 6,000 Catholic parishes as members. All of its members are Catholic employers. They include dioceses and religious institutes; schools and colleges; Catholic hospitals and medical practices; Catholic charities, nursing homes, housing corporations, fraternal organizations, and Catholic-owned businesses.

My understanding is your investigative team has discovered an HHS memo, hiding in plain sight, which telegraphs that rule changes might be coming to HHS policy.

What is that memo?

In 2016, President Obama’s HHS issued a regulation that not only mandated coverage in employer health plans of gender transition services and, arguably, surgical abortion, but also the performance of these procedures by competent healthcare providers. In 2020, President Trump’s HHS issued its own regulation that attempted, however unsuccessfully, to ameliorate the moral problems for Catholic employers arising from the 2016 regulation.

The Whitman-Walker Clinic filed one of five lawsuits challenging the 2020 regulation.

The federal court in the District of Columbia provided it with substantial injunctive relief. In February 2021, that Court stayed its proceedings “to allow the new administration to determine its course of action and [Whitman-Walker] to calibrate [its] strategy moving forward.”

Even so, Whitman-Walker grew impatient and asked the Court to lift the stay. In response to this motion, HHS advised the court that it was in conversation with Whitman-Walker and twenty-nine other activist organizations including Planned Parenthood; that it would issue a new regulation “no later than April 2022;” and that it was “far from theoretical” that the new rule would “moot” Whitman-Walker’s concerns. Those concerns are listed in a seventy-four page memorandum from the Leadership Conference — the LC memo — attached to HHS’s brief.

The Court denied Whitman-Walker’s motion to lift the stay based on its finding that HHS has “provide[d the Court with] every indication that it is preparing to initiate a wholesale revision of the 2020 Rule.”

The LC memo, thus, is the best predictor of the content of the forthcoming regulation. The new rule will likely be rooted in section 1557 of the Affordable Care Act that prohibits discrimination “on the basis of sex.”

The LC memo recommends that HHS define this phrase in such a way as to mandate a host of LGBTQ+ services of concern to Catholic employers. It also defines it to mean “termination of pregnancy” to ensure that it “reaches abortion care.” Because the new rule would, if it follows the LC memo, impose both health plan coverage mandates and also health service performance mandates, the abortion mandate would require competent physicians and hospitals to perform abortions.

Will the 2022 Rule include any religious exemption?

Probably not, both because the 2016 Rule included no such exemption and because the Leadership Conference memo includes extended analysis as to why religious exemption is illegal and why the Religious Freedom Restoration Act and precedent should be ignored.

Without a religious exemption, a surgical abortion mandate would be of great concern for Catholic healthcare because the recent appropriations bill dropped the long-standing Weldon Amendment that provided protection to hospitals and medical providers from being coerced into performing surgical abortions.

You’ve been involved in several related legal battles over the past decade. What history has gotten us to this point?  

The backstory here begins with the 2010 HHS contraceptive/abortifacient mandate. In 2016, the CBA obtained permanent injunctive relief against this mandate on behalf of its members (including future members) and their respective insurers and third-party administrators.

Also in 2016, HHS, in coordination with the EEOC, issued a rule requiring healthcare providers and employers to perform and cover gender-transition services. HHS tried to replace this with a new rule in 2020, but the new rule imposed essentially the same requirements. The Catholic Benefits Association, on behalf of its members, obtained permanent injunctive relief against this mandate as well. The court’s ruling included a finding that HHS had not, in its new rule, imposed a surgical abortion mandate.

What is the likelihood that the newly proposed HHS rules would be found constitutional? 

There are powerful protections for the conscience of Catholic individuals and employers under the Religious Freedom Restoration Act, the Free Exercise Clause, the Religious Autonomy Doctrine, the Speech Clause, and other laws. HHS cannot eliminate these protections through a regulation. The application of these protections will depend upon the final wording of the 2022 Rule.

How did you think bishops and other leaders in Catholic healthcare should respond to this situation?

While I cannot speak for Catholic bishops in general, I am at liberty to say that the seven archbishops and one bishop on the Catholic Benefits Association board of directors, along with religious and lay leaders on that board, will direct the CBA and its counsel to do everything in our power to protect the ability of CBA members to provide healthcare benefits and services consistently with their Catholic values.

(Read more) 

*The picture is of a religious sister speaking for religious liberty at a 2016 demonstration outside the Supreme Court in Washington, DC. Credit: ALL via flickr. CC BY SA 2.0

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