Contraceptives Mandate

In mid-2011, after Congress had adopted the Affordable Care Act to broaden access to health insurance, the federal Department of Health and Human Services (HHS) issued a regulation requiring employer health plans to cover every FDA-approved contraceptive method, including several contraceptive drugs that various religious communities regard to be abortifacients. There was a minimal religious employer exemption. Many secular employers, including many very large ones, were exempt from the new requirement for various reasons.

The requirement that health plans must cover even abortifacients and the constricted religious exemption, set off years of advocacy to HHS, the White House, and Congress, including from IRFA, and multiple lawsuits from religious organizations and from businesses with religious concerns. Several of the lawsuits ended up with U.S. Supreme Court decisions, such as the Hobby Lobby decision (2014) and cases involving Little Sisters of the Poor, an organization of Catholic nuns who resisted supporting contraceptives and abortifacients. In 2017, HHS finally promulgated a revised contraceptives regulation that resolved the pressing concerns of religious organizations and businesses with religious objections.

Initially, because the regulation concerned the coverage of contraceptives—procedures and pharmaceuticals whose use conflicts with official Catholic Church doctrine—many in and out of government believed that the main concern about the mandate would come from Catholic organizations—Catholic churches, religious orders, schools, hospitals, local Catholic Charities agencies.

However, to IRFA, from the beginning the problem was broader and even more fundamental:  the cramped religious organization exemption it provided misidentified—and thus significantly narrowed—the kinds of organizations the government would recognize as religious and therefore as covered by the exemption. If such a narrow definition became the federal government’s default definition, then many religious communities and organizations would be affected, not only Catholic organizations. And many areas of government policy might become problematic for religious communities and organizations, not only health insurance and contraceptives but also eligibility for various sources of federal funds and subjection to regulations governing education and social services.

The original HHS religious exemption counted as being religious only an organization with the purpose of inculcating religious values, that primarily employs only people of the organization’s religion, that primarily serves only people of the organization’s religion, and that matches specific IRS nonprofit categories.

The IRS status and the hiring requirement were not the serious problems. What was unacceptable to many religious organizations were the other two required characteristics. As they noted, it is typical of religious organizations that they operate in accordance with particular religious values, but many of them do not have as their purpose the “inculcation of religious values.” Their purpose, rather, is to feed the hungry, or shelter domestic abuse victims, or help an overseas community secure a reliable clean water supply, or conduct pathbreaking medical research. And many of them do not serve mainly people of their own religion—quite the contrary. As many Catholic and Protestant organizations noted, to be obedient to Jesus, their prime religious teacher, they must serve anyone in need, whatever that person’s religion or lack of religion. 

Through the regulatory process and in response to the court cases, the federal government was induced to adopt, or perhaps better, return to, a more capacious and more accurate understanding of what religious organizations are. 

Additional resource:

Carlson-Thies, Stanley W. “Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law’s Contraceptives Mandate.” Engage 13, no. 2 (2012): 58–64