Toomey: Protect Conscience Rights

Sen. Patrick J. Toomey (R.-Pa.)

The freshman senator from Pennsylvania announced Oct. 20 he will co-sponsor the Respect for Rights of Conscience Act to thwart a regulation he said forces Catholic organizations to cover contraceptives against their faith.

“I hope President Obama will work with Congress to grant a meaningful exemption to protect the rights of religious entities,” said Sen. Patrick “Pat” J. Toomey (R.-Pa.)

Sen. Roy D. Blunt (R.-Mo.) introduced the RRC Act (S. 1467) to address a Health and Human Services regulation that orders health care providers to cover, with no cost sharing, all contraceptives and sterilization techniques approved by the Food and Drug Administration, according to Blunt’s Aug. 30 letter to his colleagues.

The mandate to cover contraceptives appeared in the “Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act” regulation put out by HHS’ Health Resources and Services Administration on Aug. 3.

“The conscience protections of health insurance companies, their employees, and their policyholders are being placed in jeopardy,” said Blunt.
The RRC Act introduced Aug. 2 would allow health insurance providers to avoid covering any service that opposes a provider’s moral convictions, according to the bill.

The RRC Act would further ban discrimination against any person unwilling to participate in any procedure that violates his or her conscience, according to the bill.

Toomey said he will co-sponsor the RRC Act because many Pennsylvania hospitals, charities and schools are concerned about the effect the new HHS regulation would have on their ability to operate.

 “The Respect for Rights of Conscience Act alleviates this problem by protecting the religious and moral rights of employers, individuals and health care providers,” said Toomey.

Dr. J. Patrick Whelan, pediatric rheumatologist who leads the Catholic Democrats, said that the HHS ruling actually protects the right of individuals to follow their consciences and otherwise has nothing to do with conscience rights.

“They have nothing to do with whether a health care provider would be compelled to perform these procedures,” he said.

With the exception of groups that employ nuns and other ministerial workers, Whelan said, Catholic hospitals and employers should provide the same coverage, including contraceptive coverage, as other organizations do.

“Insurance plans have to provide a certain basic set of guidelines, and so some of the church groups are complaining that they shouldn’t have to provide plans that cover these services—that’s somehow a violation of conscience,” he said.

“But the matter of conscience in the end there is should their employees be trusted with the right to determine, based on their own conscience, whether or not to use these services,” he said.

The exemptions provided by the HHS ruling ensure sufficient protection for religious employers, and the Affordable Care Act in general furthers Catholic social justice aims, Whelan said.

The mandate makes exception for religious organizations, but the guidelines define a religious provider or employer as primarily serving and employing persons who share its religious tenets, according to the HHS guidelines.

This exemption is too narrow, said Toomey in a separate Sept. 23 letter to HHS Secretary Kathleen Sebelius.

“Some criteria – for instance, requiring that religious employers both primarily serve and employ individuals who share their religious tenets – would prove impossible for Catholic hospitals, universities, colleges, nursing homes and charities given the diverse populations that they serve and employ,” he said.

Anna Franzenello, staff counsel of Americans United for Life, said the HRSA interpretative guidelines violate the specific conscience protections of the Patient Protection and Affordable Care Act.

“HRSA exceeded or abused the discretion it was granted under the Affordable Care Act,” she said in a 14 page legal research letter to HHS. “The HRSA guidelines violate the intent of Section 2713(a)(4) of the Affordable Care Act by including mandated coverage for drugs and devices with life-ending mechanisms of action, such as the abortion-inducing drug ella.”

Senators Orrin G. Hatch (R-Utah), Michael O. “Mike” Johanns (R-Neb.), and 26 of their Senate colleagues released a letter on Oct. 6 to HHS Secretary Kathleen Sebelius to press her on the constitutional concerns associated with the guidelines’ contraceptive mandate.

“It jeopardizes essential constitutional rights to religious liberty and personal conscience by forcing employees to subsidize coverage that violates their faith,” said the senators in the letter.

Secretary of Health and Human Services Kathleen Sebelius

Karen W. Bryce, who is deputy director of Program and Policy for HHS’s Office of Civil Rights, said regardless of specific HHS rulings interpreting the Affordable Care Act, the Church Amendments to the Public Health and Welfare Code, 42 U.S.C. § 300a-7, the Weldon Amendment, and the Public Health Service Act continue to uphold conscience rights.

The HHS Centers for Medicare & Medicaid Services reported Oct. 6 that nearly 20.5 million people with Medicare reviewed their health status at a free annual wellness visit or received other preventive services with no deductible or cost sharing this year.

“The Affordable Care Act helps stop health problems before they start,” said Sebelius in a statement Aug. 1.  “These historic guidelines are based on science and existing literature and will help ensure women get the preventive health benefits they need.”

The comment period on the HHS ruling closed Sept. 30.