The Kansas Two-Step: Secretary Sebelius' Dancing Around the Topic of Religious Liberty


Last week during a congressional hearing on the president’s 2013 budget, Health and Human Services (HHS) Secretary Kathleen Sebelius received a number of questions about the HHS mandate requiring all employers, including religious institutions, to provide contraception coverage.

U.S. Rep. Trey Gowdy (R-S.C.) began by asking the nation’s health secretary about her written testimony in which she claimed the contraception mandate struck a “balance” between respecting religious freedom and preventive services. When she gave a vague response, he further listed three tests to determine “balance” when an issue has constitutional significance, none with which Sebelius was familiar. 

The secretary responded that she relied on the expertise of HHS general counsel for such matters. Rep. Gowdy asked for more detail about the content of the advice she received. She admitted that no legal memo was ever written, and that guidance took the form of “discussion.” Rep. Gowdy then named a few of the most critical religious liberty cases heard before the Supreme Court and asked if she was familiar with them. In an awkward moment, the Secretary admitted she was unaware of any of them. 

Later, U.S. Rep. Martha Roby (R-Ala.) discussed how the mandate would impact her own district’s Eternal Word Television Network (EWTN), a Catholic television network.  Roby asked Secretary Sebelius why this religious employer was not exempt from HHS’s mandate in the first place. 

Watching Secretary Sebelius field this question was like watching the Texas (or Kansas, as this case may be) two-step. She began by blaming the Institutes of Medicine (IOM) for recommending contraception and abortifacients among their recommended services essential to women, neglecting the fact that she as head of HHS tasked the IOM to make recommendations. Moreover, the IOM’s report to HHS contains no mention of the impact of the mandate on religious liberties or constitutionality rights. Of course, HHS had the legal responsibility to amend the IOM recommendations to comply with religious liberty protections. 

Secretary Sebelius’ second point in response to Rep. Roby’s question was that the mandate applies not to employers but to insurance companies, insinuating that there really is no infringement upon religious employers’ consciences. Clearly, Secretary Sebelius knows the mandate on all insurance plans will impact religious employers.  Why else would HHS have exempted churches in their regulations in the first place? On this point her answer actually contradicts itself. 

Rep. Roby’s more fundamental question was why HHS did not exempt EWTN and other similar religious organizations at the beginning. This time, Secretary Sebelius’ response was to hide behind a “they did it too” argument, referring to the multiple states that have a contraceptive mandate and an exemption for a narrow group of religious employers. 

However, what Secretary Sebelius did not explain is the critical point that the contraceptive mandates even in states with the narrowest exemptions such as California and New York are not as encompassing as the federal mandate. No state has a law and exemption this far reaching! 

The California law applies only to health plans that have prescription drug coverage. So, a religious employer could change its plan to avoid the state contraceptive mandate by dropping its prescription drug coverage. Or, the employer could move to a self-insured health plan which in fact is exactly what some groups in California have done to avoid the state mandate. 

Similarly in New York, the law contains a narrow religious employer exemption. However, the NY law applies only to plans with prescription drug coverage. If a religious employer drops prescription drug coverage from its policy, it would not be subject to the state mandate. The employer could also choose to self-insure and thereby avoid the mandate as is the case in California. 

In contrast, the federal contraception mandate does not allow for any non-church religious groups to be exempt, since it applies to all group plans regardless of prescription drug coverage as well as whether they are fully insured or self-insured. Indeed, the fact that the mandate applies, with a one year delay, to religious employers that are self-insured has led to yet another proposed set of regulations pending comments on how to hide the cost. With self-insured employers, the employer is the insurer. Making insurers pay the cost of free contraceptives, abortifacients and sterilizations for religious employers who have contracted with them for the health plans does little to nothing on the problem of religious liberty infringement.

Rep. Gowdy and Rep. Roby were right to ask these questions. Unfortunately, this administration is clearly unwilling to give straight answers, let alone change course.