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.
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.
Some news accounts of why the Obama administration didn't accommodate all faith-based organizations chalked it up to a politically calculated decision pushed by top advisers to the 2012 presidential campaign. Still, lobbying by Roman Catholic bishops, evangelicals and other religious leaders for a broader exemption prompted the Obama administration to put off enforcement for nonprofits until August 2013.
Meanwhile, fines have been mounting since the first of 2013 for many for-profit business owners who won't comply with a mandate that forces them to violate the tenets of their religious beliefs.
Legal scholars say preliminary rulings on the lawsuits brought by devout business owners have been divided over whether legally protected religious liberties extend to for-profit companies, prompting speculation that the U.S. Supreme Court will have the weigh in.
But the high court will focus on the high-profile claims brought under the First Amendment and the Religious Freedom Restoration Act, a 1993 law that bars government from restricting the exercise of religion without a compelling government interest, and not whether religious advocates should have been heard by the IOM.
The IOM story is in the lawsuits that claim the government also violated the federal Administrative Procedures Act by, among other things, ignoring the complaints about the mandate by religious parties.
"They’ve got constitutional, statutory and regulatory claims at all levels, trying to give a full picture of the way they believe their clients were denied the respect that’s due them," said Robert Tuttle, a law and religion professor at George Washington University. "This is a claim of systematic disrespect that operates at every level, even the right to effectively participate at the administrative rule making process."
The lawsuits filed by the Becket Fund, which represents seven religious schools, a broadcast network and the Hobby Lobby craft store chain, round out a narrative of bias against religious concerns with HHS Secretary Kathleen Sebelius telling a crowd at a NARAL Pro-Choice America fundraiser that "we are in a war." The speech happened six days after HHS reportedly received more than 100,000 public comments against the mandate, the complaints state.
Evidence not policy
HHS isn't commenting on the pending lawsuits.
IOM officials say those who know the history and purpose of the organization understand it's not part of the problem alleged in the lawsuits.
The institute, established in 1970, is the health arm of the National Academy of Sciences, which has existed since the Civil War. Over the decades the IOM has established a strict process that separates the social ramifications of an issue so that experts can focus on the science involved and make recommendations based on scientific evidence.
Clyde Behney, IOM's deputy director, said the IOM committee was charged with finding out what preventive services are important to women’s health and well-being and then recommending which services should be considered by the HHS.
But pro-life advocates and opponents to the mandate say it's hard to believe the IOM stuck to its mission when the testimony it heard was limited to groups that support contraception and it recommended emergency contraception drugs, like the morning after pill, as preventative health care.
"Such drugs, which end the life of an unborn child and can wound his or her mother, are not preventative women’s health care," said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List. "For many Americans, including the non-religious and the secular, these drugs are the antithesis of health care."
Behney said the committee heard from organizations that could provide data and outcomes on women's health needs, while anyone was allowed to submit written comments. The U.S. Conference of Catholic Bishops submitted a statement, but the majority of documentation was submitted by the American College of Obstetricians and Gynecologists.
In addition to contraception services, the IOM also recommended the mandate include cervical cancer screenings, counseling on sexually transmitted diseases, expanded pregnancy care and counseling on domestic violence.
"Whether it’s appropriate for religious institutions to have a mandate was clearly not part of our charge, and it shouldn’t be part of what the scientific evidence says," Beheny said. "It's the government's job, particularly Congress, to decide how the values of the American people get translated into policy."
But Rienzi said the IOM can't completely absolve itself from contributing to the legal standoff over the mandate.
"The IOM only made the unsurprising conclusion that contraceptives reduce pregnancy, they did not go further and take any position on whether forced employer-funded insurance would increase use of the drugs," he said. "So the government has no basis for its claim that the mandate is needed to serve a compelling interest, which is why 11 federal courts have already issued injunctions protecting employers with religious objections."
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