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Birth control mandate lawsuits make case for systematic disrepect toward religion

Published: Friday, Feb. 8 2013 9:25 p.m. MST

In this March 23 file photo, flags and signs are held during a rally for religious freedom organized in part by the Catholic Archdiocese of Philadelphia in front of Independence Hall. The rally was in objection to the Health and Human Service mandate that private health care cover women's contraception.

Alex Brandon, File, Associated Press

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A year ago Sunday, President Obama announced he would come up with a solution to concerns religious employers had with being forced against their beliefs to provide birth control converage to their employees.

But Obama's proposed solution announced earlier this month did little to disuade religious liberty advocates from their view that the administration has engaged in a systematic disregard toward religion in pushing the mandate.

Roman Catholic bishops this past week were the latest group to blast the proposal as inadequate, saying it continues to relegate Catholic health care, schools and charities to "second-class status" and ignores the conscience rights of business owners.

But Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said he holds out hope a public comment period on the latest proposal will result in "an acceptable solution can be found that respects the consciences of all."

Those who have sued the government over the mandate aren't as optimistic. Their lawsuits claim only those that supported government-mandated contraception were heard in the rule making process that took place before the administration issued the original mandate more than a year ago. The mandate incorporated recommendations from the Institute of Medicine.

"When the government issues rules, it is supposed to use an open process. Instead, it punted the key question to the IOM, which only heard from speakers favorable to one side," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which is representing some of the groups suing the government.

Public process

When the government wanted to know exactly what women's health services should be mandated in the Affordable Care Act, it turned to the IOM — one of the most respected institutions of the healing arts — for advice.

That's not unusual. Government agencies often contract with the institute for guidance on how to implement laws with medical ramifications. Then, it's up to the politicians and policymakers to decide whether to follow that counsel.

"History shows politicians often ignore IOM recommendations," said Dr. Brent James, who received his lifetime election to the institute in 2004 and serves on four IOM committees.

But, when it came to the ACA's preventative health care mandate, the Department of Health and Human Services adopted all of the IOM's guidance, including one that recommended employer insurance plans cover "the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity."

That recommendation would become a flashpoint in igniting 45 lawsuits against the government by religious organizations and business owners claiming the contraception mandate violates their legal rights to practice their faith.

The complaints state that the IOM invited a select group of organizations and health care experts, including Planned Parenthood and the National Women's Law Center, that largely support government mandated contraceptives to make presentations. The plaintiffs contend the IOM panel didn't hear from religious groups or health care professionals that would oppose government-mandated coverage for contraceptives and abortion.

While the government adopted the IOM recommendations, it granted an exemption from the mandate for churches and religious orders. But church-affiliated schools, hospitals and other nonprofits that don't fit the exemption would have to comply or pay a fine.

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