The price of conscience

US groups continue to fight the ‘abortion mandate’

There was a ‘little’ victory for US religious groups opposed to the Obama administration’s contraceptive Health and Human Services (HHS) mandate over the New Year.

Set to come into effect on January 1 as part of the Affordable Care Act, the HHS element of the Act has from the outset (it was first announced in 2012) been the source of Church ire and legal actions based on the requirement placed upon employers to provide, as part of staff insurance, provision for contraception and abortion. Since its original unveiling, the HHS has been subjected to countless legal challenges, based on arguments of religious freedom and conscientious objection. The legal firestorm prompted the White House in June to ‘reissue’ the mandate towards reassuring (unsuccessfully) Churches that they would not be bound by it – though their hospitals, universities etc. still would be.

Through it all, it was an 11th-hour challenge brought by a congregation of nuns in Denver, Colorado which provided a fresh boost to Catholics working against HHS. On December 31, the Little Sisters of the Poor, having suffered a defeat earlier at the federal court level, gained a hearing before Supreme Court Justice Sonia Sotomayor – a Catholic who was nominated for the Supreme Court by Barack Obama.

Elder care

Pointing out that as a community working in palliative and elder care, the Little Sisters of the Poor is not a Church and therefore not entitled to claim exemption from the HHS, the community stated it is placed in the invidious position of caring for life at one end of the natural cycle while required under law to fund the termination of life at the other.

Heeding the contradiction and the issue of religious conscience, Justice Sotomayor ordered a temporary stay on the mandate’s enactment relating to the sisters, requiring the White House to respond by January 3 to the matters raised.

The White House moved more quickly, issuing a statement on January 1 that the administration remains “confident that our final rules strike the balance of providing women with free contraceptive coverage while preventing non-profit religious employers with religious objections to contraceptive coverage from having to contract, arrange, pay, or refer for such coverage.”


Cutting through the political-speak, what the White House statement refers to is the provision under HHS for religious employers to ‘dodge the decision’ on insurance by self-certifying as objecting, in writing, thereby passing the onus for administrating insurance supply onto the insurance provider itself. Religious organisations have, naturally, insisted that the arrangement is ridiculous, making them complicit in abortion by an alternative route.

The scenario is reminiscent of Ireland’s own CURA Four issue of 2005, where volunteers criticised arrangements under which they did not have to supply addresses of abortion clinics, but would instead supply details of organisations which would.

Significantly, as a consequence of granting the temporary injunction on behalf of the Little Sisters, Justice Sotomayor’s order also served to offer the same legal protection for some 200 other religious organisations who, like the sisters, gain their insurance via the Christian Brothers Employee Benefit Trust, which was drawn into the Supreme Court action. (Separately, the Priests for Life organisation gained its own temporary stay in a judgement handed down by a court in the District of Columbia). All the said organisations had faced the January 1 deadline decision of adhering to the mandate or paying punitive government fines for making a stand against it, fines which should have come into force that same day.

Health plan

For observers of the HHS issue, this latter element is especially notable amid the political lauding of the Affordable Care Act stateside. It is best elucidated by the New Year letter dispatched on the issue to President Obama by US bishops’ conference president, Archbishop Joseph Kurtz of Louisville, who, in appealing for more consideration for the religious beliefs of those he represents, pointed out: “In the coming year, no employer, large or small, will be required to offer a health plan at all. Employers face no penalty in the coming year (and only $2,000 per employee afterwards) for cancelling coverage against their employees’ wishes, compelling them to seek individual coverage on the open market. But an employer who chooses, out of charity and good will, to provide and fully subsidise an excellent health plan for employees – but excludes sterilisation or any contraceptive drug or device – faces crippling fines of up to $100 a day or $36,500 a year per employee. In effect, the government seems to be telling employees that they are better off with no employer health plan at all than with a plan that does not cover contraceptives. This is hard to reconcile with an Act whose purpose is to bring us closer to universal coverage.”

Having a conscience has suddenly become very expensive.