JOINT RESOLUTION CALLING FOR RESCISSION OF THE COERCIVE HHS MANDATE & AFFIRMING FREEDOM OF CONSCIENCE Model Legislation & Policy Guide For the 2013 Legislative Year 1
INTRODUCTION The Affordable Care Act (ACA), the federal healthcare law enacted in March 2010, presents an unprecedented threat to the conscience rights of health insurers and purchasers of healthcare insurance. Though the ACA makes a limited exception for certain religious groups who object to participating in government health programs generally, the law does not allow insurance purchasers, plan sponsors, and others with conscientious objections to decline providing or obtaining coverage for specific items or services. Instead, the ACA marks the first time that the federal government has sought to impose specific coverage or care requirements that infringe on the rights of conscience of healthcare insurers and purchasers of health insurance. In August 2011, the Department of Health and Human Services (HHS), adopted an ideologically-driven recommendation from an Institute of Medicine (IOM) panel, with several connections to abortion-advocacy groups, to interpret the preventive services for women provision of the ACA to require nearly all private health insurance plans to provide full coverage for certain abortion-inducing drugs and devices. The guidelines issued by the Health Resource Service Administration (HRSA), a sub-agency of the HHS, mandate that insurance plans cover, without a co-pay, all FDA-approved contraceptives. These guidelines explicitly include sterilization and so-called emergency contraception such as the abortion-inducing drug Ulipristal Acetate (ella), which can kill a human embryo even after implantation. Mandated coverage for ella opens the door to off-label, intended-abortion usage of the drug being funded by all health insurance plans The limited conscience protection approved by HHS for what it has defined as religious employers is exceedingly narrow and leaves vulnerable many insurers and purchasers of insurance who object to such funding. Most religiously-affiliated schools, hospitals, and charitable organizations would not be included in the exceptions protection. Moreover, nonreligiously affiliated institutions, employers, and individuals whose pro-life consciences are nonetheless violated by the mandate are unquestionably left unprotected by the limited conscience protection. The so-called safe harbor for certain religiously affiliated non-profits is likewise insufficient. As proposed, it merely provides a one-year extension on the expiration date for the conscience rights of those it purports to protect. Suggestions by HHS of a future accommodation also fail to adequately protect conscience. Rather, HHS made clear in its March 2012 Advance Notice of Proposed Rulemaking (ANPRM) that it will force those with religious, moral, or ethical objections to comply with the mandate by facilitating insurance plans with the objectionable coverage. 2
The damage done by the mandate will be hard to counteract once the insurance market stops respecting the freedom of conscience. The mandate began affecting plans in August 2012, and many pro-life Americans are already forced to pay for insurance coverage of life-ending drugs and devices despite their conscientious objection. By design, the mandate has a rolling start, and each month more plans will be forced to align with the HHS agenda. Polls consistently show that more Americans oppose the mandate than support it and that the majority approve of conscience exemptions. This belief that freedom of conscience is of paramount importance has been at the heart of the American experience since our nation s founding. Thomas Jefferson wrote, No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority. In response and to assist legislators and others wishing to voice opposition to the mandate, AUL has developed a Joint Resolution Calling for the Rescission of the Coercive HHS Mandate & Affirming Freedom of Conscience. For more information or assistance, please contact AUL s Legislative Coordinator at (202) 741-4907 or Legislation@AUL.org. AUL legal and policy experts are available for advice and to assist with drafting a state-specific version of this resolution. DENISE M. BURKE, ESQ. Vice President of Legal Affairs Americans United for Life 3
JOINT RESOLUTION CALLING FOR RESCISSION OF THE COERCIVE HHS MANDATE & AFFIRMING FREEDOM OF CONSCIENCE JOINT RESOLUTION No. BY REPRESENTATIVES/SENATORS WHEREAS, contrary to the stated intent of the Affordable Care Act s preventive services provision to prevent diseases, the United States Department of Health and Human Services (HHS) mandate includes drugs and devices with known life-ending mechanisms of action, including the abortion-inducing drug ella; WHEREAS, mandated coverage for ella opens the door to off-label, intended-abortion usage of the drug being funded by all health insurance plans; [WHEREAS, the established policy of [Insert name of State] provides [Insert appropriate description of and reference(s) to any state policies against public funding for abortion and/or abortion-inducing drugs]]; WHEREAS, the Institute of Medicine (IOM), which advised HHS on what should be included in the preventive services mandate, had an abortion-advocacy bias in its panel membership, as well as its invited presenters; WHEREAS, several members of the IOM panel have direct ties to Planned Parenthood as well as other openly pro-abortion organizations. In addition, at the IOM s first meeting, groups invited to speak on women s issues included Planned Parenthood, the nation s largest abortion provider, which as a distributor of contraceptives, stands to gain tremendously if health insurance plans are required to cover contraceptives without co-pay. Planned Parenthood s financial stake was never disclosed as a conflict of interest; WHEREAS, dissenting from the IOM recommendation, committee member Dr. Anthony Lo Sasso criticized the committee s lack of transparency and creation of an advocacy-based recommendation, The committee process for evaluation of the evidence lacked transparency and was largely subject to the preferences of the committee s composition. Troublingly, the process tended to result in a mix of objective and subjective determinations filtered through a lens of advocacy. ; 4
WHEREAS, the Founders of the United States believed protecting the freedom of conscience was of utmost importance. Thomas Jefferson wrote, No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of civil authority. ; WHEREAS, the Affordable Care Act, states explicitly that Nothing in this Act shall be construed to have any effect on Federal laws regarding (i) conscience protection ; WHEREAS, in contrast to the principles of long-standing federal laws which recognize a right not to be coerced into participating in abortion, sterilization, and other services contrary to his [or her] religious or moral convictions, the HHS mandate leaves most Americans no option but to purchase and maintain insurance plans that cover the abortion-inducing drug ella, sterilization, and other contraceptive items, devices, and services to which they may have a sincerely held ethical, moral, or religious objection; WHEREAS, the HHS mandate disrupts the conscience protections provided for in the laws of several states, supplanting the reasoned judgment of the states with an ideologically-driven, coercive measure; [WHEREAS, the constitution of [Insert name of State] provides [Insert appropriate description of and reference(s) to provisions protecting freedom of conscience/freedom of religion or religious expression]]; [WHEREAS, the law of [Insert name of State] provides [Insert appropriate description of and reference(s) to statute(s) and other law(s) protecting freedom of conscience/freedom of religion or religious expression]]; and [WHEREAS, the established policy of [Insert name of State] provides [Insert appropriate description of and reference(s) to any state policies protecting the freedom of conscience/freedom of religion or religious expression]]. NOW, THEREFORE, BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF [INSERT NAME OF STATE]: Section 1. That the [Legislature] calls on Congress to enact legislation ensuring that no provision of the Affordable Care Act may be used to mandate coverage for drugs, devices, procedures, or services with life-ending mechanisms of action. 5
Section 2. That the [Legislature] calls on the United States Department of Health and Human Services (HHS) to rescind its mandated coverage for all FDA approved contraceptives and sterilization. Section 3. That the [Legislature] strongly supports the federal Respect for Rights of Conscience Act [and/or other similar and already introduced federal legislation protecting the freedom of conscience] to ensure consistency with longstanding federal law and policy [and the laws and policies of this State] protecting the freedom of conscience. Section 4. That the Secretary of State of [Insert name of State] transmit a copy of this resolution to the Governor; to the President of the United States; to the President of the Senate and the Speaker of the House of Representatives of the United States Congress; and to each individual member of [Insert name of State] s Congressional delegation. 6
More detailed information about abortion-inducing drugs and the need to protection the freedom of conscience can be found in AUL s annual publication Defending Life 2012: Building a Culture of Life, Deconstructing the Abortion Industry and on our website: www.aul.org. Defending Life 2012 is available online at AUL.org or for purchase at Amazon.com. For further information regarding this or other AUL policy guides, please contact: AMERICANS UNITED FOR LIFE 655 15th Street NW, Suite 410 Washington DC 20005 202.289.1478 Fax 202.289.1473 Legislation@AUL.org www.aul.org 2012 Americans United for Life This policy guide may be copied and distributed freely as long as the content remains unchanged and Americans United for Life is referenced as the creator and owner of this content. 7