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Experts discuss HHS contraceptive mandate at panel

Marisa Iati | Wednesday, March 28, 2012

Four experts contended the recent Department of Health and Human Services (HHS) contraceptive mandate is an attack on religious freedom in a panel discussion Tuesday titled “Notre Dame and the HHS Contraceptive Mandate.”

Daniel Philpott, a professor of international relations, moderated the Notre Dame Right to Life-sponsored event in the Eck Hall of Law and said the United States was meant to be an example of religious freedom.

“Many people feel, however, that in recent years … there’s been a move toward closure and increasing [governmental] control and management over the Church,” he said. “And perhaps nothing signifies that so much and exemplifies that so much as the recent contraceptive mandate.”

Carter Snead, a professor of law and expert on public bioethics, said in March 2010, Congress passed the Patient Protection and Affordable Care Act, which required health care plans to cover certain preventive services to women without charging them out-of-pocket costs.

HHS asked the independent Institute of Medicine (IOM) to recommend which preventive measures should be covered, Snead said. In August 2011, the IOM determined all contraceptives, sterilization methods and forms of contraceptive education qualified.

“Some of the drugs that are approved by the FDA [Food and Drug Administration] … can function in certain contexts to cause the death of the newly developing human embryo, not only before implantation, but also after implantation,” Snead said. “There is not just a religious liberty objection to the mandate. There is also what I will call a pro-life objection because it includes these kinds of drugs that have embryo side effects.”

Snead said HHS authorized an exemption n Aug. 3, 2011 for religious employers whose purpose was to inculcate religious values, employed and served primarily people that shared its tenants and was a non-profit organization as defined by the Internal Revenue Service.

On Jan. 20, HHS announced a one-year temporary safe harbor to allow non-exempt organizations that object to the mandate to find a way to comply, Snead said. He said HHS later announced it would develop rules that would try to satisfy non-exempt organizations by August 2013.

Richard Garnett, associate dean for faculty research at the Law School, said the HHS mandate is a threat to the religious freedom of minority groups.

“The religious freedom of … communities like Notre Dame is not just the freedom to avoid being coerced into doing evil … [but] to bear witness of the truth of the faith and to act with integrity and to act coherently in accord with their Catholic character as they understand it,” he said.

Garnett said the mandate potentially violates the free exercise clause of the First Amendment by exempting some religious believers but not others. He said the Religious Freedom Restoration Act requires the government to identify a compelling reason for imposing a burden on religious groups.

“Sometimes a democracy like ours, with ideals like ours, accommodates religious freedom even when it doesn’t have to,” Garnett said. “In this case, it seems to me, the better policy … would be to provide a broader religious freedom exemption to the preventative services mandate.”

Even if such an accommodation was made, the exemption would still be very narrow, Garnett said.

“To have that narrow exemption codified in our regulatory apparatus, it’s like leaving a loaded gun around for a kid to pick up,” he said.

Lisa Everett, co-director of the Office of Family Life of the Diocese of Fort Wayne-South Bend, said the Obama administration flouted the principle of equal protection under the law by exempting certain groups and not others.

“The conviction of those currently in power that contraception, sterilization and abortion-inducing drugs constitute essential preventive services that enhance the health of women … in the administration’s mind … trumps any right that religious employers might have to refuse to pay for such essential services,” she said.

Everett said pregnancy is not a disease and many contraceptives are actually dangerous to women’s health.

“We call on President Obama and our representatives in Congress to allow religious institutions and individuals to continue to witness to the faith and all its fullness, conscious that it is precisely this faith that protects the dignity of women,” she said.

Gabby Speach, a senior and member of Notre Dame Right to Life, said female advocates of the mandate have charged to oppose it is to wage a war on women. But contraception cannot properly be called health care, she said.

“Based on our standard conception of health, then fertility and pregnancy cannot be considered diseases that need a cure, and contraceptives are not medicines that cure fertility and pregnancy,” she said.

Speach said contraception is easily accessible through drugstores, doctors and in some states, through Medicaid. She said it is also available at religious institutions for non-contraceptive reasons.

“If you need contraception for a medically necessary reason that’s not a contraceptive reason, you can get it here [at Notre Dame],” Speach said. “To say that opposing the mandate is a war on women is to twist the rhetoric.”

Everett said HHS could develop a policy allowing religious institutions to act in accord with their moral principles.

“To me, one possibility would be to have employers offer insurance coverage for family planning methods that are in accord with their moral principles,” she said.

Contact Marisa Iati at miati@nd.edu