Today’s Supreme Court decision on the Affordable Care Act upheld the “individual mandate”–the requirement that virtually everyone must get health insurance or otherwise pay a penalty. But what about that other mandate–the contraceptives mandate that requires organizations’ health insurance plans for their employees to cover all FDA-approved contraceptive services, including sterilization and contraceptive drugs that some believe act as abortifacients?
The contraceptives mandate was not specifically before the Supreme Court but if the Court had struck down the law as unconstitutional, then this part of it, too, would have been voided.
Instead, the Court has upheld the law. Is the contraceptives mandate itself constitutional, or does it violate the Religion Clauses of the First Amendment? Does it violate the Religious Freedom Restoration Act? The Supreme Court did not consider these questions.
However, now that the law has been upheld, other courts will be considering the legality and constitutionality of the contraceptives mandate–recall the many lawsuits challenging the contraceptives mandate that have been filed by Catholic and Protestant organizations, by religious businesses, by religious persons, and by states. The Becket Fund for Religious Liberty has a complete list of the cases.
What can religious institutions and individuals with concerns about the contraceptives mandate do?
Go here for IRFA’s memo for parachurch organizations, explaining the mandate, how it applies to different organizations, and what can be done. As action items, the memo notes a letter to the HHS Secretary, which has already been sent, and the possibility of commenting on the Advance Notice of Proposed Rulemaking about a promised “accommodation” for non-church religious organizations that are not exempt from the mandate–the deadline for commenting is past (see the story below). Other options noted: file or join a lawsuit and press your objections on Congress.
One option not noted in the memo: Consider the contraceptives mandate and its treatment of religious organizations when evaluating candidates for federal offices. This does not “politicize” the issue but just acknowledges that Congress makes the laws and the President administers–with considerable discretion–those laws.