United
States Senate
|
FOR IMMEDIATE RELEASE:
January 20, 2012
|
|
HATCH, JOHANNS PUSH BACK ON ADMINISTRATION DECISION ON
BIRTH CONTROL INSURANCE RULE
Obama Administration Decision to
Extend Window to Comply Ignores Constitutional Concerns
WASHINGTON – U.S. Sens. Orrin
Hatch (R-Utah) and Mike Johanns (R-Neb.) today pushed back on a decision made
by the Obama Administration to mandate preventive services, including birth
control and emergency contraception, for health insurance plans. In July 2011,
the Institute of Medicine recommended several mandatory health services, as
called for by the new health care law. This included a recommendation requiring
all health care plans to provide controversial services, including
contraceptives. Subsequently, Johanns and Hatch authored a letter, signed by 26
of their colleagues, to HHS Secretary Kathleen Sebelius outlining
constitutional concerns regarding conscience protections.
“Today’s decision by the Obama
Administration shows once again that in their mind, politics will always trump
the Constitution,” Hatch said. “The problem is not that religious institutions
do not have enough time to comply, it’s that they’re forced to comply at all.
Unfortunately, this Administration has shown a complete lack of regard for our
central constitutional commitment to religious liberty.”
“Forcing religious institutions
to violate a cornerstone of their faith by providing contraceptives in their
health care plans completely defies the Constitution,” said Johanns. “The
President promised to uphold life and conscience protections in the health care
law, but rather than live up to his word, he has regrettably chosen to punt on
implementation of the controversial mandate until after the elections. I will
do everything I can in the next year to ensure that the conscience rights of
these churches, charities, hospitals and other religious organizations are
protected.”
The full text of the letter
sent to Secretary Sebelius in October is below:
October 5, 2011
The Honorable Kathleen Sebelius
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
Dear Secretary Sebelius:
In July you received a letter urging you to
consider carefully the economic and constitutional concerns associated with the
Department of Health and Human Service’s (“Department”) implementation of the
Institute of Medicine’s (“IOM”) recommendations for federally mandated
preventive health service. Specifically, that letter urged you to take
deliberate account of the threat that adoption of mandates regarding coverage
of contraceptives, sterilization, and abortifacient drugs, poses for religious
persons and institutions given our Constitution’s strong commitment to
religious liberty and free exercise. Your response to that letter, justifying
your hasty adoption of IOM’s recommendations, was deeply divisive and suggests
a remarkable failure on the part of the Obama Administration to provide
adequate protections for religious citizens and organizations.
The fact is — one confirmed in the comments
that you have received both to the Interim Final Rules (IFRs) published on July
19, 2010 and the amendment to those IFRs published on August 1, 2011 — your
adoption of IOM’s recommendations without amendment threatens the ability of
many religious employers to continue to offer health coverage to their
employees consistent with their beliefs. Moreover, it jeopardizes essential
constitutional rights to religious liberty and personal conscience by forcing
employees to subsidize coverage that violates their faith. Given the
significance of your action and the inadequacy of your earlier response to
these concerns, we write again to seek greater clarity on a number of matters
regarding your Department’s analysis of this matter and its impact on core
constitutional values.
First, in your response to the earlier Senate
inquiry, you go to great lengths to place responsibility for your action on the
determination of IOM. You note that HHS sought an “independent analysis” from
IOM, and that IOM “has a long history of providing objective expert guidance to
federal agencies.” IOM, in turn, relied on “independent physicians, nurses, scientists,
and other experts” in making their recommendations regarding preventive
services for women. Whatever the merits of your description of IOM’s
objectivity, relying on IOM does not absolve you of your own obligation as a
public servant, and a Senate-confirmed executive branch officer, to consider
the ramifications that IOM’s recommendations would have on religious persons
and institutions.
Second, your defense of the process that led
to your adoption of IOM’s recommendations requires further explanation. Again,
given the issues at stake, you had been asked to proceed cautiously and
deliberately before adopting IOM’s recommendations regarding women’s preventive
services. Instead, your Department chose to adopt those recommendations just
weeks after their initial publication. The fact that you received feedback
regarding preventive services for women following the publication of the IFR’s
in July 2010 did not preclude you from having a more robust consideration of
views on that matter following the amendment to the IFR’s on that subject in
July 2011. The Administrative Procedures Act’s requirement that federal
agencies use a transparent process of public notice and comment — is
particularly important when it comes to issues that fundamentally affect individual
liberties and human life. While we understand that the August 1, 2011 IFR was
an amendment to the July 19, 2010 IFR, the IOM recommendations that formed the
foundation of the August 2011 amendment were not even available for the public
to comment on until days before HHS issued the amendment. In a democracy it is
critical that citizens have an opportunity for full public comment before
government agencies issue legally binding regulations, and we are extremely
disappointed that you chose to deny the American people the opportunity to
comment on the critical issues in this IFR. For an Administration that purports
to support honest and open government, this is simply the latest broken promise
in a dismal track record.
Furthermore, your description of the comments
that you had received regarding women’s preventive services is so removed from
our experience that it demands an explanation. You stated that “[m]ost
commenters, including some religious organizations” supported inclusion of
contraceptive services, while “[o]ther commenters expressed concerns that
guidelines including coverage of contraceptive services could impinge upon the
religious freedom of certain religious employers.” You seem to suggest that
most religious persons had no concerns with any requirement that contraceptive
services would be included, but this hardly squares with the public feedback
that we are hearing from religious persons and institutions. For example, the
Bishops of the Kansas Catholic Conference made their position clear in a letter
to HHS last month concluding that the mandate is "profoundly deficient in
terms of medical, moral, and constitutional good sense." They also state
that the mandate "should be rescinded entirely and completely." This
sentiment is shared by dozens of churches and religious institutions
representing millions of citizens. Your conclusion that “many of the services
are covered by most health plans” elides over the key concern about whether and
why health plans by religious institutions and for religious persons do not in
fact cover many of these services. It seems possible that your impression of
the impact of this rule on religious freedom may be owing to a small sample
size, since the opportunity for public comment on the IOM recommendations
lasted less than two weeks.
We also have real concerns about your
assertion that “[t]hese guidelines do not include abortifacient drugs.” The
question of whether certain contraceptives act as abortifacients is a matter
that has been subject to vigorous debate. Major religious denominations have
come down squarely on the other side, arguing with significant evidence that
drugs such as Plan B and Ella are abortion-inducing. Yet as FDA drugs
designated for “emergency,” they will be included under the new “preventive services”
mandate. It seems clear to us that first IOM, and then the Department, chose to
listen to only one perspective in this debate — that of groups and individuals
supporting abortion. The IOM recommendations became the product of intense
lobbying by special interest groups, such as Planned Parenthood, that stand to
gain financially from them. Given the controversy surrounding these IOM
recommendations, and the process that led to them, your assertion that the IFRs
do not require coverage of abortifacient drugs is lacking.
Ultimately, our concern is with the lack of
due consideration given by you and your Department to the adverse impact that
IOM’s recommendations would have on our core constitutional value of religious
liberty. Though the IFRs’ “religious exemption” purports to protect religious
organizations, health care professionals, and health care plans, it is clear
that this protection falls well short of securing this constitutional right.
The Department can state that these guidelines address the concerns of
religious Americans, but the barrage of criticism leveled at the “religious
exemption” by those who would be subject to this rule suggest that they fall
far short of securing the essential constitutional guarantees of our First
Amendment.
To address these concerns, we request that
you redraft the Required Health Plan Coverage Guidelines for Women’s Preventive
Services so that it is consistent with long-standing constitutional principles
respectful of human life, individual liberties, and personal conscience.
Additionally, we respectfully request that you provide us with the following
information:
1) Any correspondence (including phone logs,
emails, written notes, or electronic documents) generated with respect to the
decision to include contraceptive services (including abortifacient drugs) as
part of preventive services and whether that decision violated President
Obama’s Executive Order 13535 where he stated that “longstanding Federal laws
to protect conscience will remain intact” and his public statements that
“federal conscience laws would remain in place under health reform.” This
includes correspondence between HHS employees (including both career employees
and political appointees and employees of the HHS Office of General Counsel),
or between or among HHS, the Department of the Treasury, the Department of
Labor, the Office of the White House Counsel, the Office of White House
Political Affairs, and the Executive Office of the President.
2) Any analysis generated, requested, or
obtained by HHS regarding the First Amendment implications of free exercise of
religion with respect to the provisions of this regulation and existing federal
conscience laws.
3) Any correspondence (including phone logs,
emails, written notes, or electronic documents) generated with respect to the
decision regarding the inclusion of abortifacient contraceptives as preventive
services, including correspondence between HHS employees (including both career
employees and political appointees and employees of the HHS Office of General
Counsel), or between or among HHS, the Department of the Treasury, the
Department of Labor, the Office of the White House Counsel, the Office of White
House Political Affairs, and the Executive Office of the President.
4) Any analysis generated, requested, or
obtained by HHS regarding the definition of religious employer.
5) The timeline anticipated for HRSA to issue
more specific guidance to the public about which religious employers are exempt
from the Guidelines regarding contraceptive services and an explanation of how
HRSA will take into account the religious beliefs of certain religious
employers.
6) Any analysis generated, requested or
obtained by HHS regarding the impact of inclusion of the full scope of the IOM
recommendations on the cost of the average person’s health insurance premiums.
We are deeply disappointed with the
Department’s decision to issue these IFRs without adequate public comment or
due consideration of the concerns of religious institutions and citizens. Your
decision to do so not only undercuts our nation’s commitment to democracy and
representative government, but the substance of your decision jeopardizes our
nation’s longstanding commitment — enshrined in the First Amendment — to
religious liberty and free exercise. As the Bishops of the Kansas Catholic
Conference recently wrote, "[i]t was precisely against this sort of
heavy-handed exercise of federal power that the First Amendment was
written." We concur with this sentiment.
Thank you for your prompt attention to this matter,
and we would appreciate a response to this letter before October 21, 2011.
# # #
I recall listening to Norma McCorvey--whose now-regretted
allegations as Jane Roe in the Supreme Court's Roe v Wade decision
provided pro-abortion attorneys with a false pretense for their case--as she
testified at a U.S. Senate hearing in 1998 about her experience working in
abortion clinics.
