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Lunch discussion examines lawsuit

Christian Myers | Monday, September 10, 2012

The second installment of the Professors for Lunch series featured a presentation on the Department of Health and Human Services (HHS) healthcare mandate and the issue of religious liberty.

Director of the Center for Ethics and Culture and law professor O. Carter Snead delivered a talk titled “The HHS Mandate and Religious Freedom” at Friday’s event.

Snead said the Patient Protection and Affordable Care Act requires group health care plans to cover certain preventative services without cost sharing, which means the services are free to the individual.

The details were delegated to various administrative agencies, including the HHS, Snead said. The HHS then further delegated the task to the Health Resources and Services Administration (HRSA), an agency within the HHS. The HRSA consulted the Institute of Medicine (IOM) and adopted its recommendations.

Snead said he considered the process employed by the HHS imperfect.

“The governance in this case is gravely flawed because of the lack of transparency and the delegation of the decision,” Snead said.

In accepting the IOM recommendations, the HRSA included all FDA-approved contraceptives under the provision for free preventative services.

Snead said this decision led to objections from religious groups based on pro-life concerns or religious freedom.

He said there is also a religious accommodation in the form of ministerial exception and a religious employer exemption. However, the ministerial exception is very limited because it only covers employees in a ministerial role, and the religious employer exemption has five requirements that must all be met for an institution to be exempt.

Snead said the University cannot take advantage of this exemption because one of the requirements is an institution be deemed a non-profit organization under U.S. code and be recognized as a church.

The University has brought its suit on two grounds: the First Amendment and the Religious Freedom Restoration Act. Snead said the argument under the First Amendment is that the law is not a “neutral law of general applicability” and thus can’t violate the freedom of religion clause.

The argument advanced under the Religious Freedom Restoration Act is that the government must have compelling justification and use the narrowest means available when restricting the religious liberty of an individual or institution.

Snead said there are many means of accomplishing the government’s goal of free contraceptives that do not infringe on religious liberty.

“There are many less-restrictive means,” he said. “The government could give a tax credit to individuals for every penny they pay for these contraceptives.”

In response to opposition from Catholic and other religious groups, the HHS announced a one-year period for organizations to reorganize their health plans in order to comply with the new law, Snead said.

The deadline for compliance has been set for Aug. 1, 2013, and Snead said the far-off date might have been reached with the upcoming election in mind.

“There is a concern that the Aug. 1, 2013 timeline is an attempt to eliminate this issue as a topic of discussion during the presidential election,” he said.

The government announced its intention to find a means for insurers to cover the cost of contraceptives for employees without the employer paying. Snead said he is uncertain how this goal will be achieved.

“It isn’t clear how you prevent the insurer from building the cost of free contraceptives into what they charge the institution for the plan,” he said.

Snead said even if such a plan were settled upon, the University might not be able to take advantage because it is self-insured.

The judge hearing the University’s case is likely to make an effort to delay the decision until after the presidential election, Snead said.

“If I’m the judge, I’m not going to bring all my judicial resources to a question that could be decided by the upcoming election. I’m going to try and delay until after the election,” he said.

Snead said the University would face nine million dollars in fines per year for noncompliance, and will have to find some way to comply should their suit fail. He said the possibility of complying does not mean the University should not oppose the new law.

“The question of what we can live with is not the same as what the government can impose on us,” he said.

In response to the question of what a Mitt Romney administration might mean for the provision requiring health care plans to provide free contraceptives, Snead said it is likely a Romney administration would eliminate the provision.

“It was done by administrative action, so it can be undone by administrative regulations,” Snead said. “It’s a typical practice for a new administration to repeal the administrative regulations of its predecessor.”

The Professors for Lunch series will continue on Sept. 21 at 12 p.m. in North Dining Hall with a panel discussion of the University’s lawsuit against the HHS.