The Christian Medical Association's comment submitted to the U.S. Department of Health and Human Services on the Obama administration's contraceptives and sterilization mandate is presented below.
Submitted
Electronically
Centers for Medicare & Medicaid Services Department
of Health and Human Services Attn: CMS–9968–ANPRM
P.O. Box 8016
Baltimore, MD
21244-1850
Re: Advance notice of proposed rulemaking (ANPRM), File Code CMS-9992-IFC2:
The Legal
Necessity for Comprehensive Exemptions for All Religious Objections from the
PPACA Mandate to Provide, Participate in or Pay for Health Insurance Coverage
of Abortion, Abortifacients, Contraception, Sterilization and
Counseling and
Information Regarding the Same
Dear Sir or Madam,
The 16,000-member Christian Medical
Association (CMA, www.cmda.org), the nation's largest association of
faith-based health professionals, strongly opposes the U.S. Dept. of Health and
Human Services (HHS) contraceptives and sterilization rule as unlawful,
unprecedented, unwise and un-American.
CMA views the mandate as violating
constitutional and statutory protections of religious freedom and conscience.
The mandate also undermines the American values of free enterprise and, more
importantly, respect for human life.
Given the expressed unyielding
determination of the administration to force the provision of controversial
products and services virtually regardless of religious objections, our
organization deems as wholly inadequate any scheme to "accommodate" conscience
objections such as by simply reassigning the paperwork to health insurers or
third-party administrators.
Specifically, CMA objects to the rule
because:
1.
The mandate is unlawful
and unprecedented in that it:
a.
violates the Religious
Freedom Restoration Act (“RFRA”), by imposing a substantial burden on religious
beliefs without employing the required least restrictive means, and by failing
to demonstrate a compelling governmental interest (since as even the President
has attested, contraceptives are readily available to virtually all women);
b.
violates the Weldon
Amendment, which bans federal
programs from requiring abortion coverage, by including drugs such as Ella that
the Food and Drug Administration notes have the potential to end the life of a
living human embryo;
c.
violates abortion-related provisions of the Patient Protection and Affordable Care Act
(PPACA);
d.
violates the President's assurances expressed in his Executive
Order 13535 that PPACA would
in no way be used to require abortion coverage;
e.
violates the Free Exercise Clause of the First Amendment,
by promulgating requirements that are not “generally applicable” to all, as
demonstrated by many exemptions for secular, but not religious, reasons;
f.
violates the First Amendment rights of free
speech, religion and association by compelling education, counseling and
information supportive of the very products and services included in the
mandate that are objected to by groups coerced into participating;
g.
violates the equal protection clause of
the Fourteenth Amendment, by
granting government bureaucrats virtually unlimited discretion in parceling out
exemptions;
h.
narrowly defines “religious employers” with
stipulations unprecedented in federal law--and this despite the 9-0 rebuke of
the administration by the Supreme Court over a similar issue in the recent Hosanna-Tabor case;
i.
disregards the unambiguous, bipartisan will of Congress
expressed in 16 laws, enacted over
four decades, that specifically protect “religious beliefs and moral convictions” [emphasis added].
2.
The mandate is pragmatically unwise, in that it leaves
conscientious objectors with no positive
options whatsoever. We must either violate deeply held moral convictions,
discontinue health care coverage for employees, or pay huge fines that will
drain funds otherwise used to help the poor, the sick and other ministry beneficiaries.
3.
The administration offers no accommodation options
whatsoever to protect secular
conscientious objectors. Such discrimination against non-religious
objectors--including employers, employees and insurers--disregards historical
conscience protections and standards of medical ethics. Millions of individuals
and organizations through the ages have based their moral convictions on secular
ethical standards such as the millennia-old Hippocratic oath or the more recent
Nuremburg code.
4.
The administration is instituting a decidedly un-American
policy that (a) classifies pregnancy as
a disease requiring mandated treatment and (b) advocates the prevention of
child-bearing as a health care cost savings. Unlike communist leaders in
countries like China, Americans historically have not viewed pregnancy as a
disease or children as an unwelcome product posing a cost burden.
5.
No payment scheme
developed to comply with the mandate can avoid moral compromise for faith-based
objectors. If the insurer increases the premiums of objecting employers to
recoup the costs of the mandate, faith-based employers clearly are forced to
subsidize, through increased premiums, the items considered morally
reprehensible. Increasing the premiums only of the non-objecting employers would
unfairly force them to pay for the religious objections of objectors, and the
government would essentially be compelling the subsidy of a religious group.
Either option violates the First Amendment: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof...."
6.
The mandate tramples Fifth Amendment protections
("nor shall private property be taken for public use, without just
compensation") by imposing costs on
businesses while depriving them of the liberty to profit. The alternative to
raising premiums that the administration advocates in the ANPRM--forcing
insurers to cover the cost without raising premiums--is indefensible and an
assault on the free enterprise system. The administration's assertion that
providing contraceptives without cost-sharing is a break-even or profitable
proposition for insurers is a highly dubious claim. A contraceptive implant
offered through the billion-dollar "nonprofit" Planned Parenthood,
for example, costs $800 every three years, and a sterilization surgery costs up
to $6,000. Insurers apparently do not subscribe to the HHS calculus, as
demonstrated by a recent Reimbursement Intelligence survey showing that no
major insurers believed they would save money through the mandate, and by the
obvious fact that insurers, who are quite competent at assessing risk and benefit,
have not already implemented the practice.
7.
While administration officials have talked at length
about compromise and promising accommodation of religious liberty, nothing has actually changed in the final rule.
The administration retains only two realistic
options regarding this unlawful, unprecedented, unwise and un-American policy: rescind
the policy or face defeat in the courts. The CMA encourages rescission of this
policy in its entirety.
Sincerely,
Jonathan Imbody
Vice President for Government Relations
Christian Medical Association - Washington Office
P.O. Box 16351
Washington, DC 20041
_______________
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