Is HHS Mandate Forcing Religious to Leave the U.S.?

by Donna Miller, Associate Director for Civil Law

I have been asked about a news item  that has been the subject of a number of national media stories and blogosphere writings this week. It is about the Little Sisters of the Poor and their recent announcement that they may have to leave the United States all together as a result of the Affordable Care Act. Specifically, these women religious are concerned over the HHS Mandate that dictates what coverage has to be included in the healthcare policies that employers purchase for employees. Here are two links to various versions of the Little Sisters' story.

http://dailycaller.com/2012/12/19/obamacare-could-drive-little-sisters-of-the-poor-out-of-the-us/

http://www.nationalreview.com/corner/336114/obamacare-may-force-out-order-nuns-andrew-johnson#

The recent announcement is not the first time the Little Sisters of the Poor have spoken out against the HHS Mandate. In March of this year they voiced their concern that the mandate would have detrimental effects on their U.S. operations. In addition,  the Little Sisters of the Poor are, like many other women's religious institutes, feeling the effects of declining entrants into formation and an aging membership. Indeed, the Little Sisters announced in March of this year that they are closing their facility in Evansville, Indiana, which is where my own grandmother lived and was cared for until her death in 2003. (See video at http://tristatehomepage.com/fulltext-news?nxd_id=501192.)

So the question that has been asked is whether this HHS Mandate situation is unique to the Little Sisters of the Poor or could it affect others in a similar way? The answer to that question, as so often is the case, is that it depends. If your religious institute's members object to the same provisions that are causing the Little Sisters of the Poor to reflect on their U.S. mission, then yes, you also may have to make some tough choices.

By now you know that the HHS Mandate requires insurance policies to cover specified women's preventive services, including contraception, sterilization, and drugs known to cause fertilized eggs to abort. The Mandate dictates that, if an employer pays for health insurance coverage for its employees, the coverage must contain these provisions. It is these mandatory service provisions that have raised conscience objections in many Christian employers, both as corporation leadership and as individuals (sole proprietors) with employees. Whether the employer can stop providing coverage is a matter of how many employees there are. If you have under 50, then you are not required to provide coverage. If you have 50 or more employees, then you must either pay for their coverage or pay a fine per employee. There is a narrow "religious exemption," but it does not cover most religious institutes unless they are cloistered. And few of them would have 50 employees.

There are cases making their way through the courts all over the country. We wrote on this blog about a NY hearing a few weeks ago. And just yesterday it was reported that  D.C. federal court overruled the dismissal by a lower court of a case challenging the HHS Mandate and ordered HHS to report back every 30 days until it has finalized the provisions that it says will solve the dilemma that religious organizations claim are in violation of their Constitutionally protected religious freedom. To date the mandate stands, but the issue will certainly end up before the Supreme Court in the near future, possibly 2013.