The Department of Health and Human Services (HHS) has issued a new healthcare mandate, “Guidelines for Women’s Preventative Services,” that will require employers to include contraceptive services in their employee benefits. Authored by the Institute of Medicine (IOM), the mandate will go into effect in August 2012. Because it is part of the Affordable Care Act, the mandate will become law without appearing before the legislature.
Notre Dame Professor of Law Gerard Bradley expressed concern with the classification of contraceptives “as a form of preventive health care.”
“The reason why this is mistaken is that, unlike the other procedures grouped under that heading, contraceptives do not prevent any disease or other pathological health condition,” he said.
The inclusion of abortifacient drugs as contraceptives in the healthcare mandate indicates a re-defining of ‘abortion’ and of ‘contraception.’
“It is the decision by administration officials to include within its definition of ‘contraception’ some drugs which either sometimes (so-called ‘emergency contraception’) or always (“Ella”) act as abortifacients. This part of the new regulations is part of the wider effort by the administration and other supporters of abortion to re-define the beginning of life by re-defining abortion,” Bradley stated.
“Their aim is to define ‘abortion’ as the ‘termination of pregnancy’ and then stipulate that ‘pregnancy’ commences only when the embryo has implanted itself on the uterine wall,” Bradley pointed out. “Thus they hope to establish that killing an embryo between the time when it comes to be at fertilization, and when it implants (perhaps a few days later), is ‘contraception,’ not ‘abortion.’ This word-play is conscious, and it is despicable.”
The mandate includes a conscience exemption, which excuses Catholic and other religious employers from providing contraceptive services. The mandate defines a religious employer as one who meets on of four criteria: those with “the inculcation of religious values as its purpose,” groups primarily employing “persons who share its religious tenets,” groups primarily serving “persons who share its religious tenets,” and certain types of non-profit organizations.
Critics hone in on the exemption’s third clause, which exempts only those religious institutions that serve people who share their beliefs. This would exclude Catholic charities, hospitals, and schools, whose mission is to serve not only Catholics, but all people.
One such critic is Charles Rice, professor emeritus of law at Notre Dame.
“The problem with the exemption is that a religious employer is one that has the inculcation of religious values as its purpose,” he said. “Simple religious exemption is completely illusory because Catholic hospitals do not serve primarily Catholics. And that is true of Catholic schools. This is a really a closing down of Catholic institutions, and we’re dealing with an administration that poses an obstacle to religious institutions through this executive mandate rather than through congressional action.”
Richard Garnett, associate dean for faculty research and Professor of Law, likewise described the mandate’s exemptions as “too narrow.”
“In its current form, the exemption reflects a crabbed understanding of the mission of religious institutions, and overlooks the fact that such institutions are active in the world, not just in the sanctuary, helping a wide range of people in a wide range of ways,” he stated.
Garnett sees the exemptions as limiting religious freedom.
“Such institutions should not have to give up their religious freedom as the price of living out their faith through service and civic activity. The fact a religious institution provides services or care to people who are not co-religionists should not mean that it loses the right to act with integrity, and to define its mission in accord with religious commitments.”
Bradley echoed Garnett and Rice’s objections to the exemptions.
“In practical terms, everyone and every institution except churches themselves will have to pay for health insurance which covers the cost, not only of contraception, but of early abortion as well,” he stated. “The intolerance of these new regulations for those who cherish life from its beginning and who are morally obliged to avoid complicity in abortion is breathtaking.”
Stephanie House is a senior PLS major. Contact her at shouse1@nd.edu.
