Policy: Health Care

Kathleen Sebelius finalizes HHS mandate one day after court says it is probably unconstitutional

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Beltway Confidential,Joel Gehrke,Health and Human Services,Health Care,Analysis,Constitutionality,Kathleen Sebelius

Health and Human Services (HHS) Secretary Kathleen Sebelius finalized the contraception mandate in Obamacare today, one day after a federal circuit court ruled that the regulation is probably an unconstitutional violation of religious liberties.

“The health care law guarantees millions of women access to recommended preventive services at no cost,” Sebelius said in a statement today.  “Today’s announcement reinforces our commitment to respect the concerns of houses of worship and other non-profit religious organizations that object to contraceptive coverage, while helping to ensure that women get the care they need, regardless of where they work.”

HHS said that the final rule includes an “accommodation” for non-profit religious institutions that oppose the use of contraception. “Under the accommodation these organizations will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage is separately provided to women enrolled in their health plans at no cost,” HHS said.

Yesterday, though, the 10th Circuit Court of Appeals allowed a lawsuit challenging the mandate, filed by the Christian owners of a for-profit business, to proceed because the owners had “established a likelihood of success” in their effort to have the regulation struck down.

“We hold that Hobby Lobby and Mardel are entitled to bring claims under [Religious Freedom Restoration Act], have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm,” the court ruled, adding “that a majority of the court” believed the company had met the “likelihood-of-success prong under the traditional standard.”

“This is a tremendous victory not only for the Green family and for their business, but also for many other religious business owners who should not have to forfeit their faith to make a living,” Kyle Duncan of the Becket Fund for Religious Liberty, which argued the case, said in a statement on the ruling.

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