[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE OVERREACH: THE HHS MANDATE VERSUS RELIGIOUS LIBERTY
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
FEBRUARY 28, 2012
__________
Serial No. 112-101
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
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FEBRUARY 28, 2012
Page
OPENING STATEMENTS
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Committee on the Judiciary....... 6
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 7
WITNESSES
The Most Reverend William Lori, Chairman, Ad Hoc Committee on
Religious Liberty, United States Conference of Catholic Bishops
Oral Testimony................................................. 11
Prepared Statement............................................. 13
Asma T. Uddin, Attorney, The Becket Fund for Religious Liberty
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Linda Rosenstock, M.D., M.P.H., Dean, School of Public Health,
University of California, Los Angeles
Oral Testimony................................................. 25
Prepared Statement............................................. 27
Jeanne Monahan, Director, Center for Human Dignity, Family
Research Council
Oral Testimony................................................. 29
Prepared Statement............................................. 31
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member, Committee
on the Judiciary............................................... 42
Material submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Committee on the Judiciary......................... 50
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary..................................... 60
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Member, Committee on the Judiciary............................. 79
Material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 81
APPENDIX
Material Submitted for the Hearing Record
Post-Hearing Questions and Responses of Asma T. Uddin, Attorney,
The Becket Fund for Religious Liberty.......................... 106
Material submitted by the Honorable Lamar Smith, a Representative
in Congress from the State of Texas, and Chairman, Committee on
the Judiciary.................................................. 113
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 193
Material submitted by the Honorable Jerrold Nadler, a
Representative in Congress from the State of New York, and
Member, Committee on the Judiciary............................. 222
Material submitted by the Honorable Mike Quigley, a
Representative in Congress from the State of Illinois, and
Member, Committee on the Judiciary............................. 228
Prepared Statement of the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 235
EXECUTIVE OVERREACH: THE HHS MANDATE VERSUS RELIGIOUS LIBERTY
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TUESDAY, FEBRUARY 28, 2012
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 2:35 p.m., in room
2141, Rayburn House Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbrenner, Coble,
Goodlatte, Lungren, Chabot, Issa, Forbes, King, Franks, Jordan,
Poe, Gowdy, Adams, Quayle, Conyers, Nadler, Scott, Watt,
Lofgren, Jackson Lee, Waters, Cohen, Johnson, Quigley, Chu,
Deutch, and Sanchez.
Staff Present: (Majority) Zach Somers, Counsel; Travis
Norton, Counsel; (Minority) Heather Sawyer, Counsel; and
Danielle Brown, Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time. We welcome everyone who is with
us today, both our witnesses and those in the audience, and of
course Members. I am going to recognize myself and the Ranking
Member for an opening statement, and then I will introduce the
witnesses, and we will look forward to your testimony.
This is a hearing on Executive Overreach: The HHS Mandate
Versus Religious Liberty. Religious liberty and freedom of
conscience occupy an essential place among our unalienable
rights. As James Madison observed, ``The religion of every man
must be left to the conviction and conscience of every man; and
it is the right of every man to exercise it as these may
dictate. This right is in its nature an unalienable right.''
However, recent Obama administration policy decisions have
shown a pattern of open hostility to religious organizations
and religious liberty. The Administration has denied Federal
grants to religious groups engaged in serving the poor and
vulnerable. It has deleted religious organizations from the
list of nonprofit employers that qualify for Federal student
loan forgiveness programs. And the Administration even argued
before the Supreme Court that the Federal Government should
determine when a church can fire one of its religious
ministers. All nine justices rejected their argument.
The Administration is treating the First Amendment right to
the free exercise of religion as nothing more than a privilege
arbitrarily granted by the government. Nowhere has this been
more true than with the Administration's decision to mandate
that religious organizations pay for abortion inducing drugs,
sterilizations, and contraception that they find morally
objectionable. Such a mandate cannot exist within a free
society.
The Administration and its supporters have tried to cast
this as a women's health issue to deflect attention away from
the mandate's effect on religious freedom. They assert that
religious groups are attempting to deny access to drugs and
services to which most people have no objection This assertion
is false. Religious institutions do not seek to dictate what
their employees can purchase or use. They seek to avoid a
mandate that would force them to violate their religious
convictions.
Others have pointed to the Administration's so-called
accommodation to argue that the mandate no longer infringes on
religion. The accommodation is nothing more than an accounting
gimmick. Insurance companies aren't going to give the mandated
drugs and services away for free. Religious employers will
still end up paying for them through higher premiums. Moreover,
religious employers continue to be obligated to provide their
employees with insurance plans that facilitate actions that
violate their tenets, and religious organizations that self-
insure, such as the Archdiocese of Washington, are required to
pay for the mandated drugs and services directly.
The objection to the mandate is not about political party
ideology or eliminating women's access to abortion or
contraception. It is about the respect for the religious
liberty guaranteed to all Americans by the Constitution.
Thomas Jefferson's bill for establishing religious freedom
proclaimed, ``that to compel a man to furnish contributions of
money for the propagation of opinions which he disbelieves is
sinful and tyrannical.'' This is exactly what the HHS mandate
has done. Religious employers who object to the mandate are
compelled to either violate their sincerely held beliefs or be
penalized.
The Federal Government does not have the power to dictate
what health services religious groups must provide. The HHS
mandate is a clear violation of religious freedom and a direct
attack on the personally held views of many Americans. It is an
erosion of religious freedoms. If allowed to stand, the HHS
mandate will set a dangerous precedent for future
Administrations that seek to impose their political views on
churches and religious institutions.
That concludes my opening statement, and the gentleman from
Michigan, the Ranking Member of the full Committee, is
recognized, Mr. Conyers.
Mr. Conyers. Thank you very much, Mr. Chairman. I am
pleased to join this discussion today, but I must observe that
it is a little bit unusual, maybe unfortunate, that in the year
2012 we are still debating how and when women can have access
to birth control. Today we will engage in a discussion at how a
Nation committed to protecting individual liberties, the
greatest Constitution ever created, can achieve a principled
and meaningfully balance those rights that are in conflict.
Now, the Court hasn't wavered in recognizing a woman's
right to family planning services, citing the right to privacy
in several rulings, starting with Griswold v. Connecticut and
Roe v. Wade. Most of this Committee is made up of lawyers who
studied this before they were admitted to the bar, and these
cases rule that a woman's right to access birth control cannot
be limited by the government and that the choice to have an
abortion is protected under the due process clause of the Fifth
and 14th Amendments. So the President's decision and the
Administration's action is fully supported by legal precedent.
Now, in 1990 the Supreme Court decision in Employment
Division v. Smith established that religious exemptions are not
constitutionally required for religiously motivated conduct
that violates a generally applicable law, and so it seems to me
that the President and the Health and Human Services Secretary,
Kathleen Sebelius, have diligently crafted a reasonable and
balanced approach that respects the rights of conscience and
the right to equality under the law. The Administration's rule,
published on February 15, 2012, ensures that all women have
access to contraceptive services as part of their no-cost
preventive care and also ensures that nonprofit employers who
object to these services on religious grounds do not have to
provide or pay for contraceptive coverage. Instead, insurers
will contact employees directly and offer them this coverage.
The Department's rule touches the lives of millions of
women and their families who need the full package of
preventive health care services. And while there have been many
who will choose to ignore this aspect of the debate, the fact
remains that the science and the scientific recommendations
required by legislation enacted into law demonstrates the need
for women to have access to these services.
Now, secondly, the science presented backs up the policy of
the Administration. So what they are doing isn't just good or
acceptable law, but it is also good science. The Independent
Institute of Medicine, which is part of the National Institutes
of Health, after a lot of study determined that contraception
is a key preventative health service for women. Ladies and
gentlemen, Members of the Committee, this is established
science.
In addition to promoting planned pregnancies, including
healthy spacing of pregnancies, certain contraceptives have
other benefits as well. Here are a few observations. Over
200,000 cases of ovarian cancer and 100,000 deaths were
prevented because of the health benefits of contraception. Over
10 percent of infant deaths could be prevented if pregnancies
were planned and if women had better access to family planning.
Women without access to contraception usually are at an
increased risk of unhealthy infants due to lack of initial
prenatal care, or bear significant financial strains on their
family if the pregnancy was unplanned or unintended. So
research demonstrates that many women have significant
financial barriers to accessing contraceptive coverage.
Oral contraceptives can cost from $180 to $600 a year. In
order to obtain a prescription, a woman needs to arrange a
visit with an ob/gyn. Nearly one in four women with household
incomes of less than $75,000 a year have put off gynecological
care or birth control for financial reasons. The Center for
Disease Control and Prevention named family planning as one of
the 10 most important public health achievements of the 20th
century because of its contribution to the better health of
infants, children, and women. And so these studies confirm that
failure to cover contraceptives exposes women to additional
health care costs as well as physical consequences of
unintended pregnancies.
Mr. Chairman, I close with this observation. There are many
religious leaders that are completely satisfied with this
approach. The Catholic Health Association has acknowledged that
it is satisfied with the accommodation because it strikes the
right balance between the burdens women and religious
organizations would share in implementing the HHS ruling.
In addition, close to 30 Catholic or religious affiliated
universities and colleges provide plans and benefits that
include contraceptives and family planning. Melissa Rogers, the
director of the Center for Religion and Public Affairs at Wake
Forest University Divinity School, chair of President Obama's
inaugural advisory council on faith-based neighborhood
partnerships, who had previously criticized the rule, commended
the revised rule saying, ``it both resolves religious liberty
concerns and respects the interests of Americans who would like
to have these important health benefits.''
And so I thank you for the additional time, and I put the
rest of my statement in the record. Thank you.
Mr. Smith. Without objection, thank you, Mr. Conyers.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
It is unfortunate that in 2012 we are still debating how and when
women can have access to birth control. Today we will engage in a
discussion at how a nation committed to protecting individual liberty
can achieve a principled and meaningful balance with those rights are
in conflict.
First, the President's decision and the Administration's action is
supported by legal precedent.
The Supreme Court's 1990 decision in Employment Division v. Smith
established that religious exemptions are not constitutionally required
for religiously motivated conduct that violates a generally applicable
law.
The Court has not wavered in recognizing a woman's right to family
planning services, citing the right to privacy in several rulings--
including Griswold v. Connecticut and Roe v. Wade--which ruled that a
woman's choice to have an abortion was protected as a private decision
between her and her doctor.
I believe that the President, and Department of Health and Human
Services Secretary Kathleen Sebelius have crafted an reasonable and
balanced approach that respects the rights of conscience and the right
to equality under the law.
The Department's rule touches the lives of millions of women and
their families who need the full package of preventive health care
services, including contraception. While there have been many who would
choose to ignore this aspect of the debate, the fact remains that the
science--and the scientific recommendations required by legislation we
enacted into law--demonstrates the need for women to have access to
these services.
Secondly, the science presented backs up the policy of the
Administration--it is not just good law but good science.
The Independent Institute of Medicine, which is part of the
National Institutes of Health, after much study, determined that
contraception is a key preventative health service for women.
In addition to promoting planned pregnancies, including the healthy
spacing of pregnancies, certain contraceptives have other benefits as
well. Here are the facts:
Over 200,000 cases of ovarian cancer and 100,000
deaths were prevented because of the health benefits of
contraception;
Over 10% of infant deaths could be prevented if pregnancies
were planned and if women had better access to family planning;
Women without access to contraception usually at an increased
risk of unhealthy infants due to lack of initial prenatal care,
or bear significant financial strains on their families if the
pregnancy was unplanned or unintended.
Research demonstrates that many women also have significant
financial barriers to accessing contraceptive coverage.
Oral contraceptives can cost from $180--$600 per
year.
In order to obtain a prescription, a woman needs to
arrange a visit with an OB-GYN. Nearly one in four women with
household incomes of less than $75,000 have put off
gynecological care or birth control for financial reasons.
The Centers for Disease Control and Prevention named family
planning one of the ten most important public health achievements of
the 20th Century because of its contribution to ``the better health of
infants, children, and women.''
These studies confirm that failure to cover contraceptives exposes
women to additional health care costs as well as physical consequences
of unintended pregnancies.
While this basic preventive care can be prohibitively expensive for
many women, it imposes no financial burden on employers.
The National Women's law center has cited policies
that fail to provide contraceptive coverage can cost an
employer 15-16% more than policies providing it.
The Congressional Budget Office reports that family
planning coverage in public programs either saves money or
results in no additional costs even in the short run.
Most importantly, millions of American women are impacted by
policies that single them out from receiving necessary health
care.
American women also look at birth control as a basic
element of their health care. Between 2006 and 2008
approximately 62% of women of childbearing age used
contraception.
An estimated 11.2 million women of childbearing age
are currently using the pill.
A report in the Washington Post cited that nearly 99%
of women and 98% of Catholic women have used contraception.
So we should keep the health care needs and the rights of the vast
majority of American women who need and choose to use this vital health
care service.
The modified rule put forward by the administration recognizes the
importance of these health care services, but it also respect the
rights of conscience protected by the First Amendment, and by the
Religious Freedom Restoration Act.
It does so by ensuring that houses of worship and allied
institutions will be exempt from the rule, and that non-profit
organizations with religious exemptions will not have to purchase or in
any way pay for contraceptive coverage. Women will still receive the
services if they want them, but objecting religious institutions of all
types will not have to participate in any way.
It is, a solomonic solution to a difficult problem. It balances
competing rights in a respectful manner.
Lastly, While some religious objectors are not satisfied with this
approach, many are.
The Catholic Health Association has acknowledge that
it is satisfied with the accommodation, because it strikes the
right balance between the burdens women and religious
organizations would share in implementing the HHS rule.
In addition, close to 30 Catholic or religious
affiliated university and colleges provide plans and benefits
that include contraceptives and family planning.
Melissa Rogers the Director of the Center for
Religion and Public Affairs at Wake Forest University Divinity
School and the chair of President Obama's inaugural Advisory
Council on Faith-Based and Neighborhood Partnerships, who had
previously criticized the rule, commended the revised rule
saying ``it both resolves the religious liberty concerns and
respects the interests of Americans who would like to have
these important health benefits. President Obama and his
administration deserve great credit for implementing a solution
that honors free exercise rights and fairness. I deeply
appreciate the fact that the White House has taken the
religious community's concerns so seriously.''
I look forward to the testimony of our witnesses, and I look
forward to a vigorous discussion of our efforts to ensure that our
values of protecting women's health and promoting and protecting the
free exercise of religion are advanced.
Thank you Mr. Chairman.
__________
Mr. Smith. The gentleman from Arizona, the Chairman of the
Constitution Subcommittee, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman. Mr. Chairman,
Thomas Jefferson proclaimed that ``no provision in our
Constitution ought to be dearer to a man than that which
protects the rights of conscience against the enterprises of
civil authority.'' James Madison put it even more succinctly,
declaring that, ``conscience is the most sacred of all
property.''
This is why America has had a long history of providing
consciousness objections to religious believers. From exempting
those who have religious objections to war from combat, to
providing exemptions to religious believers who could not work
on certain days of the week, to giving religious exemptions to
corrections workers who could not be involved in capital
punishment, Americans traditionally have not been forced by
their government to violate their sacred religious beliefs.
Yet despite this Nation's strong heritage of protecting
Americans' rights of conscience and religious freedom, the
Obama administration has decided to coerce religious
institutions into paying for services that directly violate the
teachings of their faith. Under the cloak of promoting women's
health, the Obama administration has pronounced that while a
religious group may teach on Sunday that contraception and
abortion are wrong, on Monday they must pay for their employees
to be educated, counseled, and provided with contraceptive
drugs, devices, and abortion procedures in direct violation of
those teachings.
Mr. Chairman, this coercion of religious groups circumvents
a bedrock principle of our Constitution, our history, and our
basic liberty, and it is an attack on the religious freedom of
all Americans, no matter what their religious beliefs are on
abortion or contraceptives.
If you hold anything sacred, you should be frightened by
the complete lack of respect for religious freedom and rights
of conscience the Obama administration has shown in
promulgating this mandate. As the editorial board of USA Today
commented, ``In drawing up the rules that will govern
healthcare reform, the Obama administration didn't just cross
that line, it galloped over it, requiring employers affiliated
with the Catholic Church to include free birth control in their
health insurance plans. That is contrary to both Catholic
doctrine and constitutional guarantees of religious freedom.''
Now, some have argued that the Obama administration has
accommodated religion by providing an exemption for certain
religious groups. That exemption, however, is so narrow that
the ministries of neither Jesus Christ nor Mother Teresa would
have qualified for it.
Others have argued that the mandate does not infringe on
religious beliefs because it will be the insurance companies
and not the religious organizations that pay for the mandated
services. But unless the Obama administration has discovered a
way to suspend the laws of economics and mathematics, this so-
called accommodation is nothing more than an accounting
gimmick.
The Obama administration's failure to provide a meaningful
religious accommodation with this mandate is not only a slap in
the face to millions of Americans of faith, it is patently
unconstitutional. It violates both the Religious Freedom
Restoration Act and the First Amendment.
First, the mandate is not neutral, is not a neutral law of
general applicability because some groups, both secular and
religious, are given exemptions while certain religious groups
are not. Second, given the widespread availability of
contraceptive services and the far less restrictive ways to
increase their availability, the mandate fails both the
compelling government interest and the least restrictive means
tests that apply to government actions that substantially
burden religion.
Mr. Chairman, the arrogance of this Administration is
breathtaking, and I am hopeful that the courts will see this
mandate for what it is, a blatant, unconstitutional abuse of
the first magnitude. But Americans shouldn't have to resort to
the courts to preserve such clearly held religious freedoms. It
is the obligation of the Executive and the Congress, who swear
an oath to uphold the Constitution, to protect these freedoms.
Unfortunately the Obama administration has callously and
flagrantly trampled under foot this sacred obligation, and I
would just remind the people under my voice, if this
Administration will do something this dramatic in an election
year, if they get reelected, you ain't seen nothing yet. And
with that, I yield back.
Mr. Smith. Thank you, Mr. Franks.
The gentleman from New York, Mr. Nadler, is recognized.
Mr. Nadler. Thank you, Mr. Chairman. The title of this
hearing, Executive Overreach: The HHS Mandate Versus Religious
Liberty, suggests that we need only consider the religious
liberty of those who object to coverage for contraception. It
does not even hint at the significant interests of the
government or the millions of women and families who seek
access to safe and affordable contraceptive services. Neither
Congress nor the executive branch is free to ignore these
interests, and far from waging war on the Constitution or/and
religion, President Obama and his Administration have sought a
sensible balance that ensures that all women have access to
free contraceptive services and honors the religious beliefs of
those who object to providing or paying for these services. A
sensible balance is exactly what is required by our laws and
Constitution.
As one of the architects of the Religious Freedom
Restoration Act of 1993, or RFRA, I worked hard to overturn the
Supreme Court's decision in Employment Division v. Smith. As we
explained in our findings to RFRA, the core principle to be
codified by restoring the compelling interest test for laws
that substantially burden religion was the need for sensible
balances between religious liberty and competing prior
government interests. RFRA was supported by a broad coalition,
ranging from the ACLU to the National Association of
Evangelicals, and both Chambers of Congress passed it with
overwhelming bipartisan majorities.
The Constitution also demands a sensible balance. Where, as
is the case here, the government chooses to accommodate
religious beliefs even if doing so is not constitutionally
required, the government must also take into account the
interests of those who do not benefit from the accommodation.
In striking down Connecticut's law allowing Sabbath
observers to take their Saturday, their Sabbath day off work,
in the state of Thornton v. Caldor, for example, the Supreme
Court found that because, ``the statute takes no account of the
convenience or interests of the employer or those of other
employees who do not observe a Sabbath,'' it constitutes,
``unyielding weighting, unquote, in favor of religion that
violates the First Amendment. In the 2005 case of Cutter v.
Wilkinson, the Court made clear that an accommodation for
religion must be measured so that it does not override other
significant interests.''
In addressing the exact question at issue here, the
California Supreme Court upheld application of a contraceptive
coverage requirement, finding that exempting religiously
affiliated charities would, ``increase the number of women
affected by discrimination in the provision of healthcare
benefits,'' whose interests could not be overlooked. As the
California Supreme Court explained, ``strongly enhancing the
State's interest is the circumstance that any exemption from
the State contraceptive coverage requirement sacrifices the
affected women's interests in receiving equitable treatment
with regard to health benefits.''
The Administration's policy is an attempt to balance
competing rights, and in seeking a sensible balance at the
Federal level, the Administration understandably looked to
California's experience and modeled its initial 2011 exemption
for religious employers on laws like California's and New
York's, both of which have been upheld as constitutional by
their States' highest courts.
This original exemption for religious employers was
criticized as too narrow because it would not include
religiously affiliated hospitals, universities, and charities
that serve and employ persons from a variety of faiths, many of
whom may not share the religious beliefs of their employers.
Responding to these concerns, President Obama and Secretary
of HHS Kathleen Sebelius crafted an additional accommodation
that establishes a safe harbor for a year until August 2013.
During this time a final rule will be promulgated that still
ensures that all women have access to contraceptive services.
But objecting religious organizations will not have to provide
for or pay for these benefits. Instead, insurance companies
will contact employees and offer these benefits to them
directly and free of charge. The Administration said that this
is workable because covering contraception saves money and that
insurance companies will not be permitted to increase premiums
of objecting employers to cover the cost of contraceptive
services.
Many who objected to the original rule as too narrow
support this approach. For example, the Catholic Health
Association said it was very pleased with the White House
announcement and it looked forward to reviewing the specifics.
The Association of Jesuit Colleges and Universities,
``commended the Obama administration for its willingness to
work with us on moving toward a solution and look forward to
working out the details of these new regulations with the White
House.''
Others are not satisfied. The United States Conference of
Catholic Bishops, for example, initially called the plan a step
in the right direction, but later condemned it, taking the
position that the only complete solution to this religious
liberty problem is for HHS to rescind the mandate of these
objectionable services.
Some Members of Congress have also called for rescission of
the requirement or, in the alternative, for legislation that
would exempt any employer or insurer from providing any
services to which they object on religious and moral grounds.
These proposals, like H.R. 1179, the ``Respect for Rights
of Conscience'' Act, cause grave constitutional concerns by
granting an unyielding weight to the interest of religious
objectors at the expense of all others. Where in these demands
for complete removal of or exemption from the requirement for
preventive contraceptive services is there any acknowledgment
of protection of the religious health and economic rights of
women or the significant public health interest that the
government shares in improving the well-being and health of
women and their families?
Ninety-nine percent of all women who are sexually active in
their lifetimes use contraceptives and 38\1/2\ million women
are currently using some method of contraception. The interest
of these women and their families cannot be ignored or set
aside.
We are likely to hear that requiring access to cost-free
contraceptive services and making those services part of
routine preventive care is not necessary, women can easily get
contraception at a local clinic or over the Internet, that care
is inexpensive and removing the requirement of coverage will
not really harm women or their families. Most of the people
making these claims are not public health experts, they are not
doctors, they are not Sandra Fluke's friend at Georgetown Law
who cannot afford the out-of-pocket costs required to continue
prescription birth control to stop cysts from growing on her
ovaries. Without this medicine she lost an ovary.
Today we have a doctrine of public health expert with us.
Dr. Rosenstock is the dean of the public--School of Public
Health at UCLA. She also chaired the committee on preventive
services for women, convened at HHS request by the Institute of
Medicine, to study and make recommendations regarding
preventive services that should be provided for women at no
cost, as is required by Congress in the Affordable Care Act.
HHS accepted all of the IOM's eight recommendations, one of
which was to include FDA-approved contraceptive service as part
of routine preventive care for women because of the tremendous
benefits that family planning provides women and their
families. I look forward to hearing from her about this
decision.
I also urge all of my colleagues to set partisan politics
aside for a moment to consider carefully the accommodations
that the Administration has proposed. I believe the Secretary
and the President can and will achieve a workable balance. They
already have gone beyond what I believe is required as a purely
legal matter to accommodate religious belief, although I
support their laudable work to ensure that any burden on
religion will be minimal, which the proposed rule ensures by
removing objecting employers from the equation.
I fear that those who continue to object and do so despite
the fact that their right to decline to participate in the
provision of preventive contraceptive services has been
respected, really seek to block women's access to contraceptive
services altogether, but the Constitution does not grant them
that right and in fact guards against that risk. As Judge
Learned Hand once explained, the First Amendment, ``gives no
one the right to insist that in pursuit of their own interests
others must conform their conduct to his own religious
necessities.''
Sacrificing the rights and needs of women and of the public
health by removing the requirement for these critical services
or broadly exempting anyone who might object is neither wise
nor is it constitutional. It would, in fact, constitute
enabling one group to impose their religious views on others
who do not share them, and that is not permitted by our
Constitution.
With that, I yield back the balance of my time.
Mr. Smith. Thank you, Mr. Nadler.
Our first witness is Bishop William Lori, the Bishop of
Bridgeport, Connecticut, and the chair of the U.S. Conference
of Catholic Bishops Committee on Religious Liberty. Bishop Lori
was ordained to the priesthood in 1977, became Auxiliary Bishop
of Washington, D.C. in 1995, and was installed as the Bishop of
Bridgeport in 2001. Bishop Lori is chairman of the board of
trustees of Sacred Heart University and is the past chairman of
the board of trustees of the Catholic University of America.
Our second witness is Asma Uddin, an attorney with the
Becket Fund for Religious Liberty. She is the primary attorney
for the fund's Legal Training Institute, which is dedicated to
training lawyers, judges, religious leaders, journalists, and
students around the world in religious freedom law and
principles. Prior to joining the Becket Fund, Ms. Uddin was an
attorney with two prestigious national law firms. She is a
graduate of the University of Chicago Law School where she was
a member of the University of Chicago Law Review.
Our third witness is Dr. Linda Rosenstock, dean of the
School of Public Health at the University of California, Los
Angeles, and chair of the Preventive Services for Women
Committee of the Institute of Medicine. Prior to going to UCLA
in 2000, Dr. Rosenstock served for nearly 7 years as the
director of the National Institute for Occupational Safety and
Health. Dr. Rosenstock received her medical degree and a
master's degree in public health from the Johns Hopkins
University.
Our final witness is Jeanne Monahan, the director of the
Center for Human Dignity at the Family Research Council. Prior
to joining Family Research Council, she worked for the
Department of Health and Human Services, where she focused on
subjects including global health policy and domestic and
international healthcare issues. Ms. Monahan is an alumnus of
James Madison University and has a master's degree from the
Pope John Paul II Institute for Studies on Marriage and Family.
We welcome you all and Look forward to your 5 minute
testimony. Bishop Lori, we will begin with you.
TESTIMONY OF THE MOST REVEREND WILLIAM LORI, CHAIRMAN, AD HOC
COMMITTEE ON RELIGIOUS LIBERTY, UNITED STATES CONFERENCE OF
CATHOLIC BISHOPS
Bishop Lori. Mr. Chairman and Members of the Committee,
thank you for the opportunity to testify today. I would like to
discuss the various absurd consequences that have flowed from
the HHS mandate.
First, ``without change'' suddenly means ``with change.''
On February 10, HHS finalized--as the rule itself says four
times, ``without change''--the interim final rule imposing the
mandate initially announced last August. Despite this, a
surprising number of those who objected vociferously to the
initial rule were suddenly and completely satisfied. The reason
for this confusion is that the finalized rule also announced
what it described as an ``accommodation.'' But this
``accommodation'' would not change the scope of the mandate and
its exemption, which, as noted above, have now been finalized
as is. Instead, it would take the form of additional
regulations whose precise contours are yet unknown and may not
issue until August 2013.
In sum, for present purposes, the ``accommodation'' is just
the legally unenforceable promise to alter the way the mandate
would still apply to those who are still not exempt from it.
Moreover, the promised alteration appears logically impossible,
for reasons detailed in my written testimony. Meanwhile, the
mandate itself is still finalized without change, excluding in
advance any expansion of the religious employer exemption.
Somehow this situation of no change is heralded as great
change, for which the Administration has been widely
congratulated.
Second, ``choice'' suddenly means ``force.'' Let me quote
from a letter I issued in my own diocese: ``HHS announced last
week that almost all employers, including Catholic employers,
will be forced to offer their employees health coverage that
includes sterilization, abortion-inducing drugs, and
contraception. Almost all health insurers will be forced to
include those `services' in the health policies they write. And
almost all individuals will be forced to buy that coverage as
part of their policies.''
I emphasize the word ``force'' precisely because it is one
of the key differences between a mere dispute over reproductive
health policy and a dispute over religious freedom.
This is not a matter of whether contraception may be
prohibited by the government, not a matter of whether
contraception may be supported by the government. Instead, it
is a matter of whether religious people and institutions may be
forced by the government to provide coverage for contraception
and sterilization even if that violates their religious
beliefs. And it is not a matter of repackaging or framing this
as a religious freedom dispute. It is a matter of acknowledging
the basic fact that government is forcing religious peoples and
groups to do something that violates their consciences.
Third, liberalism has suddenly become illiberal. When the
mandate was first proposed in August and then reiterated in
January, people and groups of all political stripes--left,
right, and center--came forward to join us in opposing this.
But now, the mere prospect of the accommodation described above
has caused some simply to abandon their prior objection. In so
doing they undermine the basic American values they would
otherwise espouse.
Only in the post-mandate world might it be considered
``liberal'' for the government to coerce people into violating
their religious rights, to justify that coercion based on the
minority status of those beliefs, to intrude into the internal
affairs of religious organizations, to crush religious
diversity in the private sector, and to incentivize religious
groups to serve fewer of the needy.
Fourth, and finally, sterilization and contraception and
abortifacients are essential, but ``essential health benefits''
are not. In December HHS acted to define the ``essential health
benefits'' mandate, which encompasses categories of services so
important that they must be included in health plans--things
like prescription drugs and hospitalization. But notably, HHS
handed off to each State the decision of what particular
benefits should be mandated.
Thus, although HHS will brook no dissent regarding whether
sterilization, contraception, or abortifacients must be covered
as ``preventive services,'' HHS is essentially indifferent
regarding what is or is not mandated as an essential health
benefit. As a result, genuinely beneficial items may well be
omitted from coverage State by State. By contrast, States have
no such discretion with regard to abortifacients,
sterilization, and contraception.
In conclusion, the Respect for Rights of Conscience Act,
H.R. 1179, would help bring the world aright again. This
legislation would not expand religious freedom beyond its
present limits but simply retain Americans' longstanding
freedom not to be forced by the Federal Government to violate
their convictions.
Thank you very much.
Mr. Smith. Thank you, Bishop Lori.
[The prepared statement of Bishop Lori follows:]
Prepared Statement of the Most Reverend William E. Lori, Bishop of
Bridgeport, on behalf of the United States Conference of Catholic
Bishops
__________
Mr. Smith. Mrs. Uddin.
TESTIMONY OF ASMA T. UDDIN, ATTORNEY,
THE BECKET FUND FOR RELIGIOUS LIBERTY
Mrs. Uddin. Mr. Chairman and distinguished Members of the
Committee, allow me to thank you for the opportunity to be with
you today to discuss the religious liberty issues related to
the HHS mandate. I am here today on behalf of the Becket Fund
for Religious Liberty, a nonprofit, nonpartisan law firm where
we work to defend religious liberty for people of all faiths. I
would ask that my full remarks are submitted into the record.
As my co-panelist from IOM will point out shortly, there
are many important health concerns affecting women today. I am
not here to dispute any of these claims or women's access to
them.
Last fall the Becket Fund represented a small Lutheran
school that the Federal Government wanted to say had no right
to higher and fire its religious teachers. This
Administration's position was so extreme that the U.S. Supreme
Court unanimously rejected their reasoning and decided in our
client's favor and in defense of the First Amendment.
I am here today because this Administration has taken
another extreme position, arguing as it did in the Hosanna-
Tabor case that the First Amendment offers no special
protections to religious employers. This unconstitutional
assault on religious liberty led the Becket Fund to bring four
lawsuits against the Federal Government.
Two weeks ago the Administration responded to our first
case on behalf of Belmont Abbey College, a Catholic college
founded by Benedictine monks. We were shocked to read that they
asked the Court to dismiss the case because of a promise to
shift the cost to insurance companies at some point in the
future.
To add further insult to injury, last night the
Administration responded to our second case on behalf of
Colorado Christian University, again failing to respond to any
of our client's legitimate constitutional claims and instead
asking for dismissal based on their promise.
One can only imagine how the government intends to respond
to our other clients, Eternal Word Television Network, started
by Mother Angelica from her garage, and Ave Maria University.
Let me be clear. None of these organizations qualify for
HHS's exceedingly narrow religious employer exemption nor are
these organizations exempt under the Administration's proposed
compromise.
On February 10th the President promised to develop a rule
that would require insurers of nonprofit organizations with
religious objections to pay the cost of the mandated coverage
for abortion-inducing drugs, sterilization, and contraception.
The press conference was merely a smokescreen that sadly fooled
much of the American public who are rightly concerned by the
mandate.
For those of you who thought the President's promise
resolved the problems in the mandate, consider this:
First, it is unclear when and if the President will issue
the promised rule.
Second, if and when such a new rule is introduced, it is
unlikely that insurance companies will offer these services for
free when they can simply spread the cost through higher
insurance premiums.
Third, hundreds if not thousands of religious organizations
have self-insured plans where the religious organization itself
is the insurance company.
Fourth, the new proposal does nothing to address the
concerns of for-profit organizations and individuals with
religious objections.
At this point, the rule published by the President
following his speech is exactly the same as the one issued in
August which our cases are based upon. Nothing has changed but
the promise of a potential shift to insurers at some point in
the future which, as I have explained, would be problematic for
a number of other reasons. That is why our clients remain
concerned. This mandate is simply unconstitutional. It violates
the free exercise clause, establishment clause, free speech
clause, and the Religious Freedom Restoration Act. In each of
our lawsuits we claim that the mandate is not neutral and
generally applicable, as required by law, because it
specifically discriminates against conscientious objectors
while many other types of groups get exemptions.
Second, we claim the mandate imposes a substantial burden
on our clients. In fact, it is so severe that our clients will
be forced to stop providing health insurance altogether and pay
penalties up to $620,000 per year for noncompliance.
Third, the mandate intentionally discriminates against the
religious beliefs of our clients since the exemption is so
narrowly defined that, as many have stated, not even Jesus's
ministry would apply.
Fourth, the mandate compels our clients to provide
counseling and education on subjects that contradict the
religious beliefs their institution stands for.
Finally, despite the severe burdens on our clients'
constitutional rights, the government in its response last
night continues to provide no compelling interest that
justifies forcing monks and nuns to hand out abortion drugs.
Our clients are acting because of what is being asked for
rather than who is doing the asking. They do not seek to
prevent women from accessing these abortion drugs, but they do
object to having to provide them against their conscience.
Women, too, seek the freedoms to live in accordance with
their sincerely held religious beliefs. Religious freedom is a
right enjoyed by everyone, and it is just as much in women's
interests to protect that right as it is in men's. As a Muslim
American woman and an academic, I have spent my career fighting
for women's and minorities' rights, and the fact that I must be
here today to explain why our constitutional rights exist is
extremely offensive to me personally. Thank you.
Mr. Smith. Thank you, Mrs. Uddin.
[The prepared statement of Ms. Uddin follows:]
Prepared Statement of Asma T. Uddin, Attorney,
The Becket Fund for Religious Liberty
Mr. Chairman and distinguished members of the Committee, allow me
to thank you for the invitation and opportunity to be with you today to
offer testimony on the religious liberty issues related to the recent
Department of Health and Human Services mandate on women's preventive
services.
I am here today representing the Becket Fund for Religious Liberty,
where I work as an attorney specializing in domestic and international
religious freedom. I will summarize my remarks and ask that my full
written testimony be entered into the record.
i. introduction
Under the Affordable Care Act of 2010 (``the ACA''),\1\ all
employer health care plans must provide--at no cost to the employee--
certain preventive services for women.\2\ The inclusion of
contraceptives--including abortion-causing contraceptives--in this
mandated coverage has caused a public uproar, with religious groups
opposed to contraception and/or abortion decrying the violation of
their religious freedom. Supporters of the mandate, in contrast, see
this as a civil rights issue--specifically, one involving women's
rights--that should not be trumped by religious concerns. At the heart
of this position, however, lies a profound misunderstanding about the
nature of religion and the scope of constitutional protections for
religious liberty.
---------------------------------------------------------------------------
\1\ The Affordable Care Act is actually two laws: the Patient
Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010),
and the Health Care and Education Reconciliation Act, Pub. L. 111-152
(March 30, 2010).
\2\ 42 U.S.C. Sec. 300gg-13(a)(4).
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A. Background
One provision of the ACA, signed into law by President Barack Obama
on March 23, 2010, mandates that health plans ``provide coverage for
and shall not impose any cost sharing requirements for . . . with
respect to women, such additional preventive care and screenings . . .
as provided for in comprehensive guidelines supported by the Health
Resources and Services Administration'' (``Mandate''). However, when
the Department of Health and Human Services (``HHS'') published an
interim final rule on July 19, 2010, it had not yet defined
``contraceptive preventative services for women''; instead, it
delegated that decision to the Health Resources and Services
Administration (``HRSA''), a division of HHS. HRSA, in turn, directed a
private policy organization, the Institute of Medicine (``IOM''), to
suggest a list of recommended guidelines describing which preventive
drugs, procedures, and services should be covered by all health
plans.\3\
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\3\ In developing its guidelines, IOM invited a select number of
groups to make presentations on the preventive care that should be
mandated by all health plans. These were the Institute, the American
Congress of Obstetricians and Gynecologists (ACOG), John Santelli, the
National Women's Law Center, National Women's Health Network, Planned
Parenthood Federation of America, and Sara Rosenbaum. No religious
groups or other groups that oppose government-mandated coverage of
contraception, sterilization, abortion, and related education and
counseling were among the invited presenters.
---------------------------------------------------------------------------
Simultaneously, HHS also accepted public comments to the 2010
interim final rule until September 17, 2010. A number of groups filed
comments warning of the potential conscience implications of requiring
religious individuals and groups to pay for certain kinds of health
care, including contraception, sterilization, and abortion.
Despite the stated concerns of these religious entities, on July
19, 2011--one year after the first interim final rule was published--
the IOM issued its recommendation that preventive services include
well-woman visits; screening for gestational diabetes; human
papillomavirus (HPV) DNA testing for women 30 years and older;
sexually-transmitted infection counseling; human immunodeficiency virus
(HIV) screening and counseling; FDA-approved contraception methods and
contraceptive counseling; breastfeeding support, supplies, and
counseling; and domestic violence screening and counseling.\4\ FDA-
approved contraceptive methods include birth-control pills;
prescription contraceptive devices, including IUDs; Plan B, also known
as the ``morning-after pill''; and ulipristal, also known as ``ella''
or the ``week-after pill''; and other drugs, devices, and procedures.
---------------------------------------------------------------------------
\4\ Institute of Medicine, Clinical Preventive Services for Women:
Closing the Gaps (July 19, 2011).
---------------------------------------------------------------------------
On August 1, 2011, thirteen days after the IOM issued its
recommendations HRSA issued guidelines adopting the IOM
recommendations.\5\ These guidelines make clear that the HHS Mandate
includes not just FDA approved contraceptive methods and sterilization
procedures, but also ``patient education and counseling'' concerning
those methods. On the same day that HRSA adopted the IOM regulations,
HHS issued an amended interim final rule, adding an exemption from the
contraceptive Mandate for ``religious employers.''
---------------------------------------------------------------------------
\5\ See http://www.hrsa.gov/womensguidelines (last visited February
11, 2012).
---------------------------------------------------------------------------
Separate from the issue of contraception, as mentioned above,
included in ``FDA-approved contraceptive methods'' are the drugs Plan B
and ella. Many religious individuals and organizations that have
conscientious objections to abortion object to the use of Plan B and
ella because they believe, and scientific evidence supports their
belief, that these drugs constitute abortifacients. That is, Plan B and
ella can prevent a human embryo, which these religious groups
understand to include a fertilized egg before it implants in the
uterus, from implanting in the wall of the uterus thereby causing the
death of the embryo.
It was precisely these sorts of concerns that were repeatedly
articulated by religious groups in the more than 200,000 public
comments submitted in response to the amended interim rule. HHS created
an exceedingly narrow religious exemption--one that is narrower than
any other religious exemption in federal law.\6\ Under the regulations,
the only organizations religious enough to receive an exemption are
those that are not already exempt from the ACA for having fewer than
fifty employees and meet all of the following criteria:
---------------------------------------------------------------------------
\6\ Until now, federal policy has generally protected the
conscience rights of religious institutions and individuals in the
health care sector. For example, for 25 years, Congress has protected
religious institutions from discrimination (based on their adherence to
natural family planning) in foreign aid grant applications. For 12
years, Congress has both exempted religious health plans from the
contraception mandate in the Federal Employees' Health Benefit Program
and protected individuals covered under other health plans from
discrimination based on their refusal to dispense contraception due to
religious belief.
The HHS mandate is not only unprecedented in federal law, but also
broader in scope and narrower in its exemption than all of the 28
State's comparable laws. Almost half the States do not have a state
contraception mandate at all, so there is no need for an exemption. Of
the States that have some sort of state contraception mandate (all less
sweeping than the federal one here), 19 provide an exemption. Of those
19 States without an exemption, only three (California, New York, and
Oregon) define the exemption nearly as narrowly as the federal one,
although the federal exemption is still worse because of the
regulation's discretionary language that the government ``may'' grant
an exemption. Moreover, religious organizations in States with a
mandate--even those where there is no express exemption--may opt out by
simply dropping prescription drug coverage or offering self-insured
plans, which are governed by federal ERISA law rather than state law.
The federal mandate permits none of these alternatives, and therefore
is less protective of religious liberty than any of the States'
---------------------------------------------------------------------------
policies.
(1) its purpose is the inculcation of religious values,
(2) it employs ``primarily'' persons who share its religious
tenets;
(3) it serves ``primarily'' persons who share its religious
tenets; and also
(4) it qualifies under the IRS code as a church or religious
order.\7\
---------------------------------------------------------------------------
\7\ 76 Fed. Reg. 46623 (Aug. 3, 2011).
This exemption is of little solace to religious employers for two
primary reasons. First, because the regulation merely states that HRSA
``may establish exemptions,'' \8\ it is possible that the federal
government will decide not to provide any religious exemptions at all.
---------------------------------------------------------------------------
\8\ 76 Fed. Reg. 46626 (Aug. 3, 2011).
---------------------------------------------------------------------------
Second, HRSA has this discretion with respect to only a vanishingly
small class of religious employers. Under this definition, most, if not
all, religious colleges or universities would not qualify for any
exemption, because these institutions exist not just to inculcate
religious values, but also to teach students. The nature of many
religious institutions is in fact to serve those outside their
community, conditioning their help on a person's need rather than their
chosen faith. As many Christian objectors to the Mandate have made
clear, not even Jesus' ministry would qualify for the exemption as he
served both Christians and non-Christians. No homeless shelter, soup
kitchen, or adoption agency would qualify, because these organizations
exist to serve anyone in need, not just those that profess a certain
religious creed.\9\ And few, if any, of these organizations qualify as
a church or religious order under the tax code.
---------------------------------------------------------------------------
\9\ The only other exemption available under the ACA is for
``grandfathered'' plans. However, here too the law is terribly
misleading. Under the new regulations, any one of a number of changes,
even if immaterial, will cause a plan to lose its grandfathered status.
Thus, although President Obama promised throughout the health reform
debate that ``if you like your health plan, you can keep it,''
religious organizations will soon be forced to abandon health plans
that reflect their deepest convictions unless they: (1) stopped
modifying their health care plans nearly a year and a half before the
HHS mandate was announced; and (2) henceforth avoid any triggering
condition. These conditions, of course, may have already been violated,
will become increasingly difficult to meet, and in any case are
unacceptable.
---------------------------------------------------------------------------
The Obama Administration's ``Accommodations''
Given the Mandate's lack of protection for religious liberty,
religious organizations and individuals voiced their concerns
vociferously. In an effort to respond to these concerns, on January 20,
2012, the Administration announced it would not expand the exemption to
protect religious schools, colleges, hospitals, and charitable service
organizations, but it would give them one extra year to comply with the
Mandate. This, of course, was no accommodation at all, as it ignored
the underlying religious liberty concerns. Also, the one year extension
applied only to employee health plans, not student health plans. In
essence, religious organizations still had no choice but to comply with
the Mandate or drop their health insurance coverage altogether and pay
the resulting hefty fines.
This ``accommodation'' was of course deemed insufficient by
religious objectors to the Mandate, as it did nothing to address the
substance of their concerns. Indeed, the blatant disregard for the
First Amendment rights at issue created a firestorm of opposition from
across the political and religious spectrum. Thus, within three weeks,
on February 10, 2012, the President held a press conference to announce
a second compromise. But this compromise also did not change any of the
provisions of the August 2011 Mandate, nor did it make any changes to
the Mandate's narrow religious exemptions.
Instead, for non-exempt religious organizations, the president made
two promises. First, he reiterated that enforcement of the Mandate on
employee health plans would be delayed by one extra year. Second, the
president promised that the administration would work to develop--at
some unspecified time in the future--a rule that would require insurers
of non-profit organizations with religious objections to pay the costs
of the mandated coverage for abortion-inducing drugs, sterilization,
and contraception.
The problems with this proffered compromise are many. First, it is
unlikely that insurance companies will offer these services for free;
religious employers would still ultimately be paying for these services
against their conscience, with the costs spread through higher
insurance premiums for their employees. Although some argue that
insurance companies would cover these services for free because it
helps their bottom line, such an argument is tenuous at best--after
all, if that were the case, insurance companies would have arguably
already provided contraception for free. Moreover, the provision of
these so-called free contraceptives still depends on the religious
employer purchasing insurance for its employees. While they might not
be paying for the drugs, they are still facilitating their use by
employees. Religious organizations should not be forced to turn a blind
eye to the inclusion of something in their insurance plan that violates
their conscience.
Second, hundreds if not thousands of religious organizations have
self-insured plans, where the religious organization itself is the
``insurance company.'' Although the preamble to the final rule does
state an intent to achieve the same ``goals'' for self-insured
religious organizations, it is unclear how the proposed compromise
would resolve the concerns of these entities,
Third, the new proposal does nothing to address the concerns of
for-profit organizations and individuals with religious objections.
Rather, the proposed compromise simply underscores how the government's
policy discriminates between various categories of religious groups and
individuals, with churches receiving the greatest protection, non-
profit religious organizations potentially receiving a lower level of
protection, and individuals and for-profit entities receiving no
protection at all. This picking and choosing of who is entitled to
First Amendment protections is unconstitutional.
If an employer with moral objections to the HHS Mandate is not
covered by the Administration's compromise solution, the employers
final alternative is to stop providing health care benefits altogether.
But this too places religious employers in an unacceptable double bind:
either they must pay for contraception, sterilization, and abortion-
inducing drugs, or they must stop providing their employees with health
care and pay a stiff civil penalty. The first option forces religious
employers to violate their moral convictions. The second option forces
them to pay steep fines for exercising their religion and creates
enormous hardships for their employees, some of whom have limited means
to purchase health insurance on their own. And the burden does not end
there. Without employer health plans, many religious institutions would
find themselves at a serious competitive disadvantage vis-a-vis other
employers. Some religious institutions could find that without a group
health plan, they could not attract sufficient staff and would be
forced to close their operations altogether.
The fines imposed on religious employers that refuse to violate
their consciences are significant. For example, a charitable
organization with 100 employees will have to pay the federal government
$140,000 per year for the ``privilege'' of not underwriting medical
services it believes are immoral.\10\
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\10\ See Nat'l Fed'n of Indep. Business, The Free Rider Provision:
A One-Page Primer, available at http://www.nfib.com/Portals/0/PDF/
AllUsers/Free%20Rider%20Provision.pdf.
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B. Legal Claims
Given these coercive burdens on the religious freedom of
organizations and individuals that hold religious beliefs against
contraception and/or abortion, the Becket Fund for Religious Liberty
has brought several lawsuits. The lawsuits, each of which make the same
claims, are on behalf of (1) Belmont Abbey College (BAC), a Catholic
liberal arts college founded by Benedictine monks; (2) Colorado
Christian University (CCU), an interdenominational Christian college;
(3) Eternal Word Television Network (EWTN), a television network that
serves to spread Catholic teachings; and (4) Ave Maria University, a
Catholic University dedicated to transmitting authentic Catholic values
to students. For failing to comply by the Mandate, BAC would pay
approximately $340,000 annually, CCU would pay $500,000; EWTN would pay
$620,000; and Ave Maria close to $340,000.
These lawsuits challenge the government Mandate as a violation of
the First Amendment of the U.S. Constitution, the Religious Freedom
Restoration Act (RFRA), and the Administrative Procedures Act (APA).
The religious freedom claims turn on the fact that the burden placed on
these organizations is not justified, as is required by law, by a
compelling government interest that is narrowly tailored to serve that
interest. There is also a free exercise claim of intentional
discrimination because the Mandate protects certain religions and
religious groups, such as those that serve and employ members of their
own faith, while penalizing other religions. This sort of
discrimination also raises Establishment Clause issues as it prefers
some denominations to others and places a selective burden on the
plaintiffs.
The lawsuits seek a declaration from the court that the Mandate
violates the First Amendment, RFRA, and the APA. They also seek an
order prohibiting the government from enforcing the Mandate against our
clients and any other religious group that cannot provide access to
these drugs and services because of their religious convictions.
Thus far, the Administration has responded to only one of the four
lawsuits, and fails to address in its brief any of our client's
constitutional claims. Instead, it calls on the court to dismiss the
case altogether in light of their ``promise'' to pass the costs onto
insurance companies. As I've already articulated, this is not a valid
solution for our clients' legitimate claims.
ii. the contraception mandate and women's rights
Some have framed the controversy surrounding the Mandate as a
women's rights issue. At the outset, the point must be made that our
clients are acting because of what is being asked for (an act that
violates their deeply held beliefs), rather than who is doing the
asking. That is, religious organizations are not objecting to the
Mandate because it is targeted toward preventive care for women;
rather, they object to paying for, or providing access to,
contraception, sterilization, and/or abortion-inducing drugs,
regardless of gender. Indeed, the relevant employee might be male, with
a female dependent.
Moreover, including a robust exemption protecting the deeply held
religious beliefs of those who oppose contraception and abortion would
not harm women or women's health. Access to these contraceptives is
widespread: Nine out of ten employer-based insurance plans in the
United States already cover contraception. The government admits these
services are widely available in ``community health centers, public
clinics, and hospitals with income-based support.'' \11\ In fact, the
federal government already spends hundreds of millions of dollars each
year funding free or nearly free family planning services under its
Title X program. Therefore, the issue is not really about access to
contraception but rather about who pays for it.
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\11\ See A statement by U.S. Department of Health and Human
Services Secretary Kathleen Sebelius. http://www.hhs.gov/news/press/
2012pres/01/20120120a.html.
---------------------------------------------------------------------------
Finally, one of the issues that is consistently overlooked when the
issue is framed as ``women's rights versus religious freedom'' is that
women, too, seek the freedom to live in accordance with their sincerely
held religious beliefs. Not all women agree with the Mandate; in fact,
41% of Catholic women do not support the Mandate.\12\ Religious freedom
is a right enjoyed by everyone, men and women, and it is just as much
in women's interest to protect that right as it is in men's. As a
female member of religious minority, I hold this right to religious
freedom particularly dear, as, for example, a Muslim woman's right to
dress as she pleases is restricted by many governments across the
world.
---------------------------------------------------------------------------
\12\ See Public Policy Polling, http://
www.coalitiontoprotectwomenshealth.org/wp-content/uploads/2012/02/
catholics_and_birth_control_benefit.pdf
---------------------------------------------------------------------------
iv. conclusion: looking forward
As it turns out, this conflict is entirely unnecessary. A robust
exemption from the HHS Mandate would be a workable way for the federal
government to advance both its interest in women's health and its
commitment to respecting the legitimate autonomy and convictions of
religious institutions.
In particular, expanding the existing ``religious employer''
exemption into a ``religious conviction'' exemption would eliminate the
conflict entirely. Specifically, the exemption should be expanded to
include all individuals and organizations--whether nonprofit or for-
profit--that have a sincere religious conviction prohibiting them from
purchasing or providing access to the mandated goods and services. In
addition, any limitations over how, by whom, and for whom these
individuals and organizations carry out their missions should be
eliminated. And finally, the exemption should be expanded to include
effected student health plans in addition to employee health plans.
These changes to the existing exemption would also help carry out
the purposes of the Affordable Care Act by ensuring that employees and
students can remain part of their existing healthcare plans.
__________
Mr. Smith. Dr. Rosenstock.
TESTIMONY OF LINDA ROSENSTOCK, M.D., M.P.H., DEAN, SCHOOL OF
PUBLIC HEALTH, UNIVERSITY OF CALIFORNIA, LOS ANGELES
Dr. Rosenstock. Thank you. Since no one else is bothered by
the rumbling, I will continue. Good afternoon, Mr. Chairman,
and Members of the Committee. As mentioned, I served as chair--
--
Mr. Issa. Ma'am, we can't hear anything you are saying. Can
you pull the mike close and turn it on?
Mr. Smith. Turn on the mike there. The rumblings, by the
way, was the train going back and forth to the Capitol.
Dr. Rosenstock. I am from California, we worry about these
things.
Mr. Smith. Not an earthquake.
Dr. Rosenstock. As mentioned, I served as chair of the
Institute of Medicine's Committee on Preventive Services for
Women. The Institute of Medicine, or IOM, is the health arm of
the National Academy of Sciences, an independent, nonprofit
organization that provides unbiased and authoritative advice to
decision-makers and the public. At the request of the U.S.
Department of Health and Human Services, IOM assembled a
diverse expert committee to identify critical gaps in
preventive services for women as well as recommend measures
that further ensure women's health and well-being. The
committee gathered evidence, deliberated on its findings and
recommendations, and met five times in a 6-month period in
order to write its report.
The report underwent, as is typical for the IOM, a rigorous
independent external review prior to its release in July of
last year. The committee recommended that eight clinical
preventive services for women be added to the services that
health plans must cover at no cost to patients under the
Patient Protection and Affordable Care Act of 2010. The
committee defined preventive services as measures, including
medications, procedures, devices, tests, education and
counseling, shown to improve well-being and/or decrease the
likelihood or delay the onset of a targeted disease or
condition.
To guide its deliberation in determining gaps in preventive
services not included in existing guidelines, the committee
reviewed all current guidelines, assembled and assessed
additional evidence including reviews of the literature,
reviewed Federal health priority goals and objectives, and the
clinical guidelines of healthcare professional organizations.
Throughout the study process, the committee repeatedly
questioned whether the disease or condition was significant to
women, and especially whether it was more common or more
serious in women than in men or whether women experienced
different outcomes or benefited from different interventions
than men.
The additional preventive services recommended by the IOM
Committee for Preventive Coverage consideration also met the
following criteria: that the condition to be prevented affects
a broad population of women; that the condition to be prevented
has a large potential impact on health and well-being; and,
importantly, that the quality and strength of the evidence
about the effectiveness of the preventive measure supports its
inclusion.
The committee took seriously its task of focusing on
women's unique health needs. Women are consistently more likely
than men to report a wide range of cost-related barriers to
receiving or delaying medical tests and treatments and to
filling prescriptions for themselves and their families.
Studies have also shown that even moderate copayments for
preventive services such as mammograms and Pap smears deter
patients from receiving these services. The report suggested
eight additional services, including, for example, screening
for gestational diabetes and additional cancer screening for
cervical cancer.
I was asked today to speak to our committee's
recommendation 5.5, to reduce the rate of unintended
pregnancies, which accounts for about half of pregnancies in
the United States, of which about 40 percent result in
abortion, the report encouraged HHS to consider adding the full
range of Food and Drug Administration approved contraception
methods as well as patient education and counseling for all
women with reproductive capacity.
Unintended pregnancy is linked to a host of health
problems. Women with unintended pregnancies are more likely to
receive delayed or no prenatal care and to suffer from other
health problems. Unintended pregnancy also increases the risks
of babies being born preterm or at low birth weight, both of
which increase their chance of health and developmental
problems.
Family planning services are preventive services that
enable women and couples to avoid unintended pregnancy and to
space their pregnancies to promote optimal birth outcomes.
Pregnancy spacing is a priority for women's health because of
the increased risk of adverse pregnancy, outcomes for
pregnancies that are too closely spaced or within 18 months of
each other.
A wide array of safe and highly effective FDA-approved
methods of contraception is available. This range of methods
provides options for women depending on their life stage,
sexual practices, and health status. The committee noted that
contraceptive coverage has become routine for most private
insurance and federally funded insurance programs.
In summary, the report addressed concerns that the current
guidelines on preventive services contain gaps when it comes to
women's needs. As a centerpiece of the Affordable Care Act, the
focus on preventive services represents a significant and
welcome shift from a reactive system that primarily responds to
acute problems and urgent needs to one that fosters optimal
health and well-being. Women stand to benefit especially from
the shift, given their longer life expectancies, their
reproductive and gender-specific conditions, and their
disproportionate rates of chronic disease and disability from
some conditions. Because women need to use more preventive care
than men, they face higher out-of-pocket costs.
Thank you very much for the opportunity to testify.
Mr. Smith. Thank you, Dr. Rosenstock.
[The prepared statement of Dr. Rosenstock follows:]
Prepared Statement of Linda Rosenstock, M.D., M.P.H., Dean,
School of Public Health, University of California, Los Angeles
My name is Dr. Linda Rosenstock. I am the Dean of the School of
Public Health at the University of California, Los Angeles. I also
served as chair of the Institute of Medicine's Committee on Preventive
Services for Women. The Institute of Medicine, or IOM, is the health
arm of the National Academy of Sciences, an independent, nonprofit
organization that provides unbiased and authoritative advice to
decision makers and the public.
At the request of the U.S. Department of Health and Human Services'
Assistant Secretary for Planning and Evaluation, the IOM assembled a
diverse, expert committee to identify critical gaps in preventive
services for women as well as recommend measures that will further
ensure women's health and well-being.
The committee gathered evidence, deliberated on its findings and
recommendations, and met five times in a six-month time period in order
to write its report, Clinical Preventive Services for Women: Closing
the Gaps. This report underwent a rigorous, independent external review
prior to its release in July of last year. The Committee recommended
that eight preventive health services for women be added to the
services that health plans cover at no cost to patients under the
Patient Protection and Affordable Care Act of 2010, commonly known as
the ACA. The ACA requires plans to cover the services listed in the
comprehensive list of preventive services at www.healthcare.gov.
The committee defined preventive health services as measures--
including medications, procedures, devices, tests, education and
counseling-- shown to improve well-being, and/or decrease the
likelihood or delay the onset of a targeted disease or condition. To
guide its deliberations in determining gaps in preventive services not
included in existing guidelines, the committee developed four
overarching questions:
Are high-quality systematic evidence reviews
available which indicate that the service is effective in
women?
Are quality peer-reviewed studies available
demonstrating effectiveness of the service in women?
Has the measure been identified as a federal priority
to address in women's preventive services?
Are there existing federal, state, or international
practices, professional guidelines, or federal reimbursement
policies that support the use of the measure?
Preventive measures recommended by the IOM committee for preventive
coverage consideration met the following criteria:
The condition to be prevented affects a broad
population;
The condition to be prevented has a large potential
impact on health and well-being; and
The quality and strength of the evidence is
supportive.
The committee took seriously its task of focusing on women's unique
health needs. Women are consistently more likely than men to report a
wide range of cost-related barriers to receiving or delaying medical
tests and treatments and to filling prescriptions for themselves and
their families. Studies have also shown that even moderate copayments
for preventive services such as mammograms and Pap smears deter
patients from receiving those services.
Throughout the study process, the committee repeatedly questioned
whether the disease or condition was significant to women and,
especially, whether it was more common or more serious in women than in
men or whether women experienced different outcomes or benefited from
different interventions than men.
The report suggested the following additional services:
screening for gestational diabetes
human papillomavirus (HPV) testing as part of
cervical cancer screening for women over 30
counseling on sexually transmitted infections
counseling and screening for HIV
contraceptive methods and counseling to prevent
unintended pregnancies
lactation counseling and equipment to promote breast-
feeding
screening and counseling to detect and prevent
interpersonal and domestic violence
yearly well-woman preventive care visits to obtain
recommended preventive services
Examples of why these services are crucial in supporting women's
optimal health and well-being are listed below.
Deaths from cervical cancer could be reduced by adding DNA testing
for HPV, the virus that can cause this form of cancer, to the Pap
smears that are part of the current guidelines for women's preventive
services. Cervical cancer can be prevented through vaccination,
screening, and treatment of precancerous lesions and HPV testing
increases the chances of identifying women at risk.
Although lactation counseling is already part of the HHS
guidelines, the report recommended comprehensive support that includes
coverage of breast pump rental fees as well as counseling by trained
providers to help women initiate and continue breast-feeding. Evidence
links breast-feeding to lower risk for breast and ovarian cancers; it
also reduces children's risk for sudden infant death syndrome, asthma,
gastrointestinal infections, respiratory diseases, leukemia, ear
infections, obesity, and Type 2 diabetes.
The report recommended that HHS consider screening for gestational
diabetes in pregnant women between 24 and 28 weeks of gestation and at
the first prenatal visit for pregnant women identified to be at high
risk for diabetes. The United States has the highest rates of
gestational diabetes in the world; it complicates as many as 10 percent
of U.S. pregnancies each year. Women with gestational diabetes face a
7.5-fold increased risk for the development of Type 2 diabetes after
delivery and are more likely to have infants that require delivery by
cesarean section and have health problems after birth.
To reduce the rate of unintended pregnancies, which accounted for
almost half of pregnancies in the U.S. in 2001, the report urged HHS to
consider adding the full range of Food and Drug Administration-approved
contraceptive methods as well as patient education and counseling for
all women with reproductive capacity.
Unintended pregnancy is linked to a host of health problems. Women
with unintended pregnancies are more likely to receive delayed or no
prenatal care and to smoke, consume alcohol, be depressed, and
experience domestic violence during pregnancy. Unintended pregnancy
also increases the risk of babies being born preterm or at a low birth
weight, both of which increase their chances of health and
developmental problems.
Family planning services are preventive services that enable women
and couples to avoid an unwanted pregnancy and to space their
pregnancies to promote optimal birth outcomes. Pregnancy spacing is a
priority for women's health because of the increased risk of adverse
pregnancy outcomes for pregnancies that are too closely spaced (within
18 months of a prior pregnancy). A wide array of safe and highly
effective FDA-approved methods of contraception is available. This
range of methods provides options for women depending upon their life
stage, sexual practices, and health status.
The committee noted that contraceptive coverage has become routine
for most private insurance and federally funded insurance programs.
Additionally, federal goals included in Healthy People 2010 and later
in Healthy People 2020 strive to reduce the number of unintended
pregnancies.
The report addressed concerns that the current guidelines on
preventive services contain gaps when it comes to women's needs. Women
suffer disproportionate rates of chronic disease and disability from
some conditions. Because they need to use more preventive care than men
on average due to reproductive and gender-specific conditions, women
face higher out-of-pocket costs.
Positioning preventive care as the foundation of the U.S.
healthcare system is critical to ensuring Americans' health and well-
being. This is a shift from an historically reactive system that
primarily responds to acute problems and urgent needs to one that helps
foster optimal health and well-being.
Thank you very much for the opportunity to submit this testimony.
__________
Mr. Smith. Ms. Monahan, before you begin, let me say to
Members that votes have been called, and votes are going to
last about an hour. We then have a bill on the House floor that
will take about 20 minutes, and so we will resume our hearing
after about an hour and 15 or 20 minutes when we leave. Before
we leave, though, Ms. Monahan, we are going to hear your
testimony, I am going to ask my questions, and then we will
recess and come back. So Ms. Monahan, if you will proceed.
TESTIMONY OF JEANNE MONAHAN, DIRECTOR, CENTER FOR HUMAN
DIGNITY, FAMILY RESEARCH COUNCIL
Ms. Monahan. Mr. Chairman and honorable Members of the
Committee, thank you for the opportunity to testify today about
the significant threats to religious liberty currently facing
our country. My name is Jeanne Monahan, I work at the Family
Research Council, a Christian public policy organization. We
represent more than 1.5 million families of different
denominations around the country.
As you are aware, the Affordable Care Act requires health
insurance to include preventive care services for women, and
the Administration chose to mandate all FDA-approved
contraceptives in the list of covered services, with a very
narrow religious exemption that will essentially apply only to
churches.
I speak today as a representative of Americans,
particularly women, who are opposed to this mandate.
Fundamentally, we believe that the President's mandate violates
religious liberty, undermines conscience protections currently
in place, and profoundly discriminates against people of faith.
Almost every Catholic bishop around the country has
indicated that his diocese will not comply with the mandate,
but this is not simply a Catholic issue. Over 2,500 evangelical
church leaders recently signed a letter in opposition to the
President. The National Association of Evangelicals, the
Southern Baptist Convention, the Jewish Orthodox Union and
other national religious groups have also formally voiced their
opposition.
Religious women are also speaking out. In a recent letter
signed by thousands of women of 18 different faiths, including
doctors, lawyers, business owners, and scholars, women wrote,
in quotes, ``No one speaks for all women on these issues. Those
who purport to do so are simply attempting to deflect attention
from the serious religious liberty issues at stake,'' unquote.
This is about religious liberty. And yet I would also like
to provide context about why people like me would object to
this mandate. Drugs and devices that can destroy rather than
prevent life are included in this mandate. It is a
scientifically valid belief that pregnancy begins at conception
or fertilization and not at implantation 7 to 10 days later.
But certain drugs and devices are included in this mandate that
prevent implantation, and one drug included can work post-
implantation.
Emergency contraceptives are included. Plan B can prevent
an embryo from implanting. One extensive literature review of
Plan B revealed that it possesses at least seven modes of
action preventing implantation. And then there is ella. Last
year the Food and Drug Administration approved ella as an
emergency contraceptive, but it is chemically and functionally
almost identical to the FDA-approved abortifacient RU-486. Ella
can cause the demise of an embryo post-implantation. In a study
of macaque monkeys, ella aborted four out of five fetuses, and
there are a number of other studies that are included in my
written testimony.
Many Americans believe that drugs that destroy embryos are
wrong, regardless of FDA classification. Many Americans are
profoundly troubled by the inclusion of these drugs in this
mandate. These Americans should not be forced to participate in
and cooperate with their coverage in insurance plans.
The HHS contraceptive mandate violates longstanding Federal
conscience and religious protections. Even many women who are
favorable toward contraception oppose this mandate.
Recently in the San Francisco Chronicle a columnist wrote,
``As a believer in family planning, I suppose I should be
thrilled, except that President Obama just trampled on the
first part of the First Amendment. In a raw exercise of power,
the Obama administration has decreed that religious
organizations must reject their deeply held beliefs and hand
out FDA-approved contraceptives, including the morning-after
pill. Now it turns out Americans of all religious persuasions
are free to choose, as long as they choose to agree with
Obama.''
It has been said you can be sincere and sincerely wrong. We
don't question the President's motives, but we think he is
sincerely wrong. You might think that--you might disagree with
me and think that I and thousands of women like me are
sincerely wrong. Fine. But don't force us to--don't
discriminate against us and don't force us to violate our
consciences.
We strongly urge you not to allow this President to
discriminate against those with moral or religious objections
to this mandate coverage of contraceptives, sterilization, and
abortifacients. Thank you.
Mr. Smith. Thank you, Ms. Monahan.
[The prepared statement of Ms. Monahan follows:]
Prepared Statement of Jeanne Monahan, M.T.S., Director of the Center
for Human Dignity, Family Resarch Council
Mr. Chairman and honorable members of the committee, thank you for
the opportunity to testify before you today about the most critical
issue of religious liberty facing our country.
My name is Jeanne Monahan. I work at the Family Research Council, a
Christian public policy organization that since 1983 has promoted and
defended human life and religious freedom in the United States. We
represent more than 1.5 million people from Evangelical, Catholic, and
other Christian denominations around the country. I speak today as a
representative of Americans, particularly, American women, who are
opposed to the President's contraceptive mandate and its profound
discrimination against people of faith. Fundamentally, we believe that
the contraceptive mandate violates religious freedom and undermines
conscience rights protections that all Americans have enjoyed until
now.
Background. In December 2009, Senator Barbara Mikulski's amendment
on women's preventive services with no cost-sharing was adopted into
the healthcare bill. The Affordable Care Act which became law in March
23, 2010, was followed in August 2010 by the Department of Health and
Human Services (HHS) tasking to the Institute of Medicine (IOM) to
study and make recommendations on specific women's preventive services
to be included with no cost-sharing for patients. The IOM held three
public meetings on November 16, 2010 and January 12, 2011 and March 9,
2011. The advising committee was composed of 17 members, most of whom
had specialty backgrounds in the area of reproductive health. Invited
presenters included representatives of the Planned Parenthood
Federation of America, the Guttmacher Institute, the National Women's
Law Center, National Women's Health Network, and others. No pro-life or
religious liberty scholars, doctors, or public health experts were
invited to make formal presentations.
Separate to the invited formal presentations during each meeting
was opportunity for public comment. During the public comment period in
each meeting the topic receiving the greatest attention was
contraception coverage. I was among many pro-life attendees at each of
the IOM committee meetings. Among my colleagues from the pro-life
movement were medical doctors, lawyers, nurses, and health insurance
providers, most of whom provided remarks during the public comment
period. Most frequently opponents of a contraceptive mandate discussed
the inclusion of abortion inducing drugs and devices.
In July 2011 the committee issued its report. It recommended
coverage of the full range of FDA-approved contraceptives. The report
did not include or reference any research related to abortion-inducing
drugs presented in the public comment period, which, as noted above,
were provided at each meeting by a variety of participants.
On August 1, 2011 HHS revised the general preventive services
interim final rule, indicating that the Health Resources Services
Administration (HRSA) could exempt a narrow group of religious
employers. The HRSA guidance, which is binding, included the full range
of FDA-approved contraceptives as a mandatory preventative service for
women in all health plans.
FRC is not opposed to many of the IOM recommended services,
including domestic violence screenings, gestational diabetes and
breast-cancer screenings. However, on behalf of millions of people of
faith, FRC is strongly opposed to any person or institution being
forced to provide coverage for FDA-approved contraceptives and
sterilizations because some of these can function as abortifacients.
Based on the HHS rule issued August 1, 2011 the vast majority of
faith-based organizations do not meet the narrow government criteria
for a religious organization exemption, namely, employing only members
of its religion, serving primarily its own members, and having as its
primary purpose the ``inculcation'' of religious values. Schools,
homeless shelters, hospitals, and other such faith-based organizations
are not religious enough to be exempt. In the words of Rabbi
Soloveichik, Director of the Straus Center for Torah and Western
Thought Yeshiva University and Associate Rabbi for the Congregation
Kehilath Jeshurun, ``[T]he administration implicitly assumes that those
who employ or help others of a different religion are no longer acting
in a religious capacity, and as such are not entitled to the protection
of the First Amendment.'' \1\
---------------------------------------------------------------------------
\1\ House Oversight and Governance Committee Hearing, ``Lines
Crossed: Separation of Church and State. Has the Obama Administration
Trampled on Freedom of Religion and Freedom of Conscience?'' (February
16, 2012) (http://oversight.house.gov/images/stories/Testimony/2-16-
12_Full_HC_Mandate_Soloveichik.pdf, p. 3)
---------------------------------------------------------------------------
Following HHS' announcement in August the Department received over
200,000 \2\ comments from the public on the contraceptive mandate. In a
matter of days our own constituents filed over 15,000 comments and
similarly the US Conference of Catholic Bishops (USCCB) reported that
their constituents filed over 60,000 comments in protest.
---------------------------------------------------------------------------
\2\ Department of Health and Human Services,''Group Health Plans
and Health Insurance Issuers Relating to Coverage of Preventive
Services Under the Patient Protection and Affordable Care Act''
(February 10, 2012) (http://cciio.cms.gov/resources/files/Files2/
02102012/psrule_508.pdf, p. 6)
---------------------------------------------------------------------------
Despite this groundswell of disagreement, on January 20, 2012 the
Administration issued a press release announcing the government would
grant a year's delay so that religious organizations not exempted could
determine how to violate their consciences. The understandable uproar
across the country led to a February 10, 2012 announcement by President
Obama of a promised ``accommodation'' requiring that religious
employer's health insurance companies cover the costs of contraceptives
and abortifacients rather than the employers. However, no corresponding
written changes were made by law or regulation.
On the same day the government issued the final regulation, again
restating only the narrow religious exemption. It also re-issued
binding guidance that reiterated the contraceptive mandate, with a
promise of a future accounting procedure that would be issued with
regard to the accommodation. However, should an accounting procedure be
issued in future regulations, religious employers will still be forced
to pay insurers who would in turn provide their employees the services
to which they have religious objections. This is no accommodation.
Religious employers would still under this scheme be violating their
conscience by virtue of government fiat.
Response from religious people. What do religious people, those who
will carry the burden, have to say about this mandate? As of today,
most Catholic Bishops within the U.S. have stated that they will not
comply. Yet this is not exclusively a Catholic issue. Recently 2,500
Evangelical church leaders signed FRC's letter in opposition sent to
President Obama. The National Association of Evangelicals and the
Southern Baptist Convention have also expressed their opposition.
Religious women are also speaking out. In a letter to the President
and members of Congress recently signed by thousands of women of 18
different faiths and representing doctors, nurses, lawyers, teachers,
mothers, community care workers, business owners, scholars and more
women voiced their ardent opposition to the mandate.
The letter included these observations:
``We listened to prominent women purport to speak for us. We
watched them duck the fundamental religious-liberty issues at
stake. No one speaks for all women on these issues. Those who
purport to do so are simply attempting to deflect attention
from the serious religious liberty issues at stake. We call on
President Obama, Health and Human Services Secretary Kathleen
Sebelius, and our representatives in Congress to respect
religious voices, to respect religious liberty, and to allow
religious institutions and individuals to continue to provide
witness to their faiths in all their fullness.'' \3\
---------------------------------------------------------------------------
\3\ Helen Alvare and Kim Daniels, ``Here We Are: Women Who Stand in
Favor of Religious Liberty'' National Review Online (February 21, 2012)
(http://www.nationalreview.com/articles/291590/here-we-are-helen-m-
alvare)
It is not acceptable for the government to force religious people
to violate their beliefs by compelling their participation in insurance
plans that provide services to which they fundamentally object. Many
religious believers oppose this narrow exemption for religious churches
as well. Not all oppose contraceptives, but many do. Most strongly
oppose abortifiacient drugs and devices, and there is a strong
consensus objecting to the way this rule purports to redefine religion
and religious belief.
Abortion-inducing drugs. Drugs and devices that destroy, rather
than prevent life, are included in this mandate. For example, in the
list of drugs to be provided with no cost-sharing are those categorized
as emergency contraceptives (EC). The first of these drugs is
Levonorgestral, or Plan B. Plan B possesses a number of mechanisms of
action which can prevent a newly formed embryo from implanting in the
uterine wall. One extensive review of the available medical literature
on Levonorgestral revealed as many as seven mechanisms of action that
potentially could prevent implantation of an embryo.\4\ In another
literature review of the mechanisms of action of Levonorgestral, the
authors concluded, ``The evidence to date supports the contention that
use of EC does not always inhibit ovulation even if used in the
preovulatory phase, and that it may unfavorably alter the endometrial
lining regardless of when in the cycle it is used, with the effect
persisting for days.'' \5\ Plan B's labeling information also admits
this scientific reality. ``[Plan B] may inhibit implantation (by
altering the endometrium)'' \6\.
---------------------------------------------------------------------------
\4\ H. Croxatto, et al., ``Mechanism of Action of Hormonal
Preparations Used for Emergency Contraception: a Review of the
Literature,'' Contraception 63 (2001): 111.
\5\ C. Kahlenborn, et al., ``Postfertilization Effect of Hormonal
Emergency Contraception,'' Annals of Pharmacotherapy (2002): 468.
\6\ U.S. Department of Health and Human Services Food and Drug
Administration, ``Plan B One Step Labeling Information'' (July 2009):
p. 4 http://www.accessdata.fda.gov/drugsatfda_docs/label/2009/
021998lbl.pdf.
---------------------------------------------------------------------------
The second problematic FDA-approved drug covered by the mandate is
ulipristal acetate, marketed as Ella by Watson Pharmaceuticals.
Including Ella in the mandatory category of ``preventive care service
for women'' means that HHS is requiring each health insurance plan to
cover a drug which possesses the ability to kill an implanted embryo.
The demise of an embryo post-implantation is widely agreed by all, even
those who define pregnancy at implantation, to constitute an abortion.
The FDA approved Ella under the label of an ``emergency
contraceptive,'' but Ella is chemically and functionally similar to the
FDA-approved abortifacient, RU-486.\7\ Even Ella's label states that
the drug is contra-indicated for pregnancy.\8\
---------------------------------------------------------------------------
\7\ RU-486 (mifepristone; Mifeprex) was approved in 2000 by the
FDA as an ``abortifacient.''
\8\ U.S. Department of Health and Human Services Food and Drug
Administration, ``Ella Labeling Information'' (August 2010): p.1
(http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/
022474s000lbl.pdf).
---------------------------------------------------------------------------
A recent article published in Annals of Pharmacotherapy stated
``[t]he mechanism of action of ulipristal in human ovarian and
endometrial tissue is identical to that of its parent compound,
mifepristone.'' \9\ Numerous other research studies confirm
ulipristal's abortifacient mechanism of action.\10\ In one such study
involving ulipristal's action in macaques (monkeys), four out of five
fetuses were aborted.\11\
---------------------------------------------------------------------------
\9\ D. Harrison and J. Mitroka, ``Defining Reality: The Potential
Role of Pharmacists in Assessing the Impact of Progesterone Receptor
Modulators and Misoprostol in Reproductive Health,'' Annals of
Pharmacotherapy 45 (Jan. 2011): 115-9.
\10\ Reel et al., ``Antiovulatory and Postcoital Antifertility
Activity of the Antiprogestin CDB-2914 When Administered as Single,
Multiple, or Continuous Doses to Rats,'' 58 Contraception (1998): 129-
136, p. 129; VandeVoort et al., ``Effects of Progesterone Receptor
Blockers on Human Granulosa-Luteal Cell Culture Secretion of
Progesterone, Estradiol, and Relaxin,'' 62 Biology of Reproduction
(2000): 200-205, 200. In this article, ulipristal is referred to as
``HRP-2000,'' Hild et al., ``CDB-2914: Anti-progestational/
antiglucocorticoid Profile and Post-coital Anti-fertility Activity in
Rats and Rabbits,'' 15 Human Reproduction (2000): 822-829, 824; G.
Teutsch and D. Philibert, ``History and Perspectives of Antiprogestins
from the Chemist's Point of View,'' 9 Human Reproduction (1994)(suppl
1):12-31; B. Attardi, J. Burgenson, S. Hild, and J. Reel, ``In vitro
Antiprogestational/Antiglucocorticoid Activity and Progestin and
Glucocorticoid Receptor Binding of the Putative Metabolites and
Synthetic Derivatives of CDB-2914, CDB-4124, and mifepristone,''
Journal of Steroid Biochemistry and Molecular Biology 88 (2004): 277-
88.
\11\ A.F. Tarantal, A.G. Hendrickx, S.A. Matlin, et. al., ``Effects
of Two Antiprogestins on Early Pregnancy in the Long-tailed Macaque
(Macaca fascicularis),'' 54 Contraception 1996: 107-15; European
Medicines Agency, ``CHMP Assessment Report for EllaOne,'' (Doc.Ref.:
EMEA/261787/2009).
---------------------------------------------------------------------------
In paperwork filed for the approval of ulipristal in Europe, the
European Medicines Agency noted that ``Ulipristal, mifepristone and
lilopristone were approximately equipotent at the dose levels of 10 and
30 mg/day in terminating pregnancies in guinea-pigs . . . '' \12\ The
authors of the Annals article noted: ``[E]xisting studies in animals
are instructive in terms of the potential abortive effects of the drug
in humans.'' \13\ Their analysis led them to conclude ``it can be
reasonably expected that the prescribed dose of 30 mg of ulipristal
will have an abortive effect on early pregnancy in humans.'' \14\
Thirty milligrams is the precise dose of ulipristal now provided in a
single package of Ella when purchased as emergency contraceptive in the
United States.
---------------------------------------------------------------------------
\12\ European Medicines Agency, ``CHMP Assessment Report for
EllaOne,'' (Doc.Ref.: EMEA/261787/2009): p. 10.
\13\ Harrison and Mitroka, supra.
\14\ Ibid.
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The IOM report ignored such scientific research and analysis. Yet
many Americans are deeply troubled by the inclusion of these drugs on
the mandatory coverage list. Those who oppose their inclusion on
religious and moral grounds should not be forced to participate in and
cooperate with their coverage in insurance plans. The government should
not force people of faith to violate their religious beliefs concerning
drugs they reasonably view as destroying human life.
Many Americans believe that drugs that destroy embryos are wrong
regardless of FDA classification. It is a scientifically valid belief
that conception occurs at fertilization and that pregnancy begins with
fertilization and not with implantation. This analysis is supported by
a recent survey of the four American medical dictionaries showing that
three of the four back this position.\15\ Moreover, pregnancy is not a
disease. While diseases or complications related to pregnancy should be
treated, pregnancy itself is not a disease or illness. Yet even if
there is disagreement with the beliefs of religious Americans who
oppose drugs that can destroy embryos before or after implantation, it
is not the proper role of the government to force them to violate their
religious beliefs.
---------------------------------------------------------------------------
\15\ Christopher M. Gacek, ``Conceiving `Pregnancy': U.S. Medical
Dictionaries and Their Definitions of `Conception' and `Pregnancy,'''
National Catholic Bioethics Quarterly (Autumn 2009): 542-557.
---------------------------------------------------------------------------
Conscience and religious protection violations. The HHS
contraceptive mandate violates the spirit and, in one cases, the letter
of long-standing federal conscience laws meant to protect people and
groups from government discrimination in health care. In the past 35
years, Congress has passed a number of laws (notably, the Church
Amendments \16\ and the Hyde-Weldon Amendment \17\) related to
protecting the conscience rights of healthcare workers from government
discrimination with regard to abortion or any service in a federally
funded or administered program. These laws forbid discrimination in
such programs. The HHS contraceptive mandate extends government
discrimination beyond these laws' protections by ordering insurance
coverage in the private market in such a way as to violate the
consciences of insurers, providers, and plan participants who have
moral or religious objections. To the extent the HHS mandate includes
Ella, we believe it violates the Hyde/Weldon ban on using federal funds
to discriminate against health care entities that object to
``abortion''.
---------------------------------------------------------------------------
\16\ 42 U.S.C. Sec. 300a-7.
\17\ Hyde-Weldon is currently contained in Section 508(d) of
Division D of the Consolidated Appropriations Act, 2010 (P.L. 111-117),
123 Stat. 3280 (2009) which was renewed through the Department of
Defense and Full Year Continuing Appropriations Act of 2011 (P.L. 112-
10).
---------------------------------------------------------------------------
The HHS contraceptive mandate also impinges upon a person's
exercise of his or her religion. In 1993, Congress enacted the
Religious Freedom Restoration Act (``RFRA'')\18\ which holds a law or
regulation that imposes a ``substantial burden'' on a person's free
exercise of religion to be allowed only when the government can
demonstrate ``that application of the burden'' furthers ``a compelling
governmental interest.'' \19\ In a related hearing on this mandate
Bishop William Lori was asked if he believed that the government had a
``compelling interest'' sufficient to warrant a contraceptive mandate
that will burden Catholic or others' religious beliefs. Bishop Lori
responded that if the government felt they had a ``compelling
interest'' to burden religious liberty, it would not have provided for
any kind of religious exemption. As Bishop Lori pointed out, the
mandate and exemption each is arbitrary in that it is the government
that decides who is and who is not religious.
---------------------------------------------------------------------------
\18\ 107 Stat. 1488, as amended, 42 U.S.C. Sec. 2000bb et seq.
\19\ 42 U.S.C. Sec. 2000bb-1(b).
---------------------------------------------------------------------------
As Rabbi Soloveichik testified on February 16th before Congress:
``First: by carving out an exemption, however narrow, the
administration implicitly acknowledges that forcing employers to
purchase these insurance policies may involve a violation of religious
freedom. Second, the administration implicitly assumes that those who
employ or help others of a different religion are no longer acting in a
religious capacity, and as such are not entitled to the protection of
the First Amendment. This betrays a complete misunderstanding of the
nature of religion.''
This is a religious liberty issue. The Administration's imposition
of its will on religious organizations is an act of gross
discrimination against people of faith. Even those who are not opposed
to contraceptives generally have spoken against the Government's
``accommodation''. Debra Saunders writes in the San Francisco
Chronicle, ``As a believer in birth control and family planning, I
suppose I should be thrilled. Except that President Obama just trampled
on the first part of the First Amendment, `Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.''' She eloquently refutes the argument made by some
that the HHS mandate guarantees ``choice''. Ms. Saunders writes ``But
there is a `choice' problem. In a raw exercise of power, the Obama
administration has decreed that religious organizations must reject
their deeply held beliefs and hand out FDA-approved contraceptives--
including the morning-after pill . . . Now it turns out, Americans of
all religious persuasions are free to choose, as long as they choose to
agree with Obama.'' \20\
---------------------------------------------------------------------------
\20\ Debra Saunders, ``Obama imposes will in contraception
compromise,'' San Francisco Chronicle (February 15, 2012) (http://
www.sfgate.com/cgibin/article.cgi?f=/c/a/2012/02/14/ED6D1N70AQ.DTL)
---------------------------------------------------------------------------
Conclusion. The contraceptive mandate is an unprecedented directive
which deeply conflicts with religious and conscience freedom
protections the American people currently receive. In our democratic
society governed by the U.S. Constitution, it is not the role of this
Administration to dictate what does or does not violate another
person's conscience on matters as critical as life and death. It is the
job of the government to defend those rights, not trample them. This
Administration's act of discrimination against people of faith, and
women of faith, must be stopped. As CS Lewis said, you can be sincere,
and sincerely wrong. We don't question the President's motives, but we
think he is wrong. You may disagree with me, and think that I and the
thousands of women like me are wrong. Fine, but do not discriminate
against us and force us to violate our consciences. We urge you not to
allow this President to discriminate against those with moral or
religious objections to this mandate coverage of contraceptives,
sterilization services, and abortifacients.
__________
Mr. Smith. Bishop Lori, let me direct my first couple of
questions to you, and the first is this: What changes should
the Administration make to the mandate to protect the religious
liberties of Catholic and other religious organizations?
Bishop Lori. Mr. Chairman, we think that the mandate to
provide these so-called preventive services should be
rescinded. We think that is the real way out of this; and
barring that, we hope there would be legislative relief.
Mr. Smith. Okay. Second question is what religious burdens
would be imposed upon religious organizations who chose not to
comply with the mandate?
Bishop Lori. It is not a very nice menu. The first item on
the menu would be to violate our consciences. In other words,
as was said here, to teach one thing on Sunday and to do quite
another thing on Monday, to be a counter witness to our own
teaching. Secondly, we could be fined, and the fines would be
severe and crippling. Or, thirdly, of course, we could have to
cease providing services or cease providing health care, and I
don't think that is in anybody's interests.
Mr. Smith. Under the Affordable Health Care Act, wouldn't
the fines be perhaps $2,000 per person?
Bishop Lori. I am told it is such. I think it would be an
untenable burden.
Mr. Smith. On Catholic and other organizations.
Bishop Lori. Absolutely.
Mr. Smith. If they do not comply with the mandate. Okay,
thank you.
Mrs. Uddin, if the mandate stands as it is, what are the
implications for the religious liberties of all Americans? In
other words, what else could the Federal Government impose on
religious organizations?
Mrs. Uddin. We have to remember that religious liberty is a
bedrock principle of our Constitution and of our society. It is
precisely the same principle that has justified exemptions for
a number of different religious groups, whether it be Quakers
being exempt from going to war or a prison guard being exempt
from having to partake in the death penalty because of their
beliefs. And ultimately, once you open the gates for this sort
of trampling on religious liberty, it is a slippery slope to a
much broader violation.
Mr. Smith. But what are other examples, what else could the
government force religious organizations to provide if this
mandate were to remain in effect, as is, unchanged?
Mrs. Uddin. Well, I mean, this mandate has been justified
on the basis of the fact that there are health benefits to
providing contraceptives, but the issue of health benefits is
not the point. If the government mandates everything that has
positive health benefits, it could possibly mandate that
everyone drink red wine for heart health, even though it
violates the religious beliefs of Muslims and Mormons; and it
could mandate that everyone eat shellfish, even though that
violates the religious beliefs of Jews; and it could mandate
gym memberships because it is widely accepted that exercise is
beneficial.
Mr. Smith. Okay, thank you. Ms. Monahan, let me ask you a
question. You testified that you speak today as a
representative of Americans, particularly American women who
are opposed to the President's contraceptive mandate. Can you
describe how it feels to have your sincere religious objections
to the mandate and your concern for its broader impact on
religious liberty characterized by supporters of the mandate
as, ``an attack on women's health''?
Ms. Monahan. Well, first let me just say I am still
somewhat shocked and awed just by this decision to begin with.
I mean, I worked in the Office of the Secretary both during the
Bush administration and the Obama administration, and I think
this is a huge overreach, and I am still just shocked by it;
but in terms of characterizing it against women's health, I
mean, let's consider the fact that religious employers are
going to be forced to withdraw health benefits for women, and
obviously that won't be very good for women's health. They will
lose the status quo.
Mr. Smith. Okay, thanks, Ms. Monahan.
That concludes my questions, and we have 2 minutes left to
get to the series of votes. I apologize to you all, but I would
like to ask you to wait, if you could, until we return. Please
feel free to take a break, leave the room, but I would expect
that we might resume our hearing between 4:45 and 5:00, and we
will encourage Members to return at that point. So thank you
for your patience. We stand in recess until about 15 minutes
after the last vote in the series of votes.
[Recess.]
Mr. Franks. [Presiding.] Judiciary Committee meeting will
now come to order, and we will recognize Mr. Nadler for 5
minutes.
Mr. Nadler. Thank you.
Dr. Rosenstock, you are at UCLA in California. As I
mentioned in my opening statement, California requires coverage
of contraceptive services, including by religious-affiliated
entities. How has that worked in your State?
Dr. Rosenstock. From my perspective as a physician, it is
working very well. As you had mentioned in your comments, there
was some initial legal testing of the exemption, which was seen
as limited, but since it has been in place, there is, to my
knowledge, very broad participation. I would hope----
Mr. Nadler. Have any of the Catholic-affiliated, other
affiliated----
Dr. Rosenstock. I am aware there are certainly many. One of
the larger ones that comes to mind is Catholic Hospital West, a
religious-affiliated employer, includes----
Mr. Nadler. I am asking--excuse me, have any of them
refused to provide services or refused to--or refused to obey
the law?
Dr. Rosenstock. Not that I am aware of.
Mr. Nadler. Okay. Thank you.
And in his testimony Bishop Lori states that ``it is
downright surreal to apply coercive power when the customer can
get the same sandwich cheaply or even free just a few doors
down.'' The underlying assertion and comparison is that
contraceptive services are cheap, even free, for anyone who
wants them. Do you agree with that assertion?
Dr. Rosenstock. No.
Mr. Nadler. Because?
Dr. Rosenstock. Well, some are relatively inexpensive. It
turns out the ones that are most effective actually do cost
more. So the implantable IUDs, for example, or the injectables
are a higher cost. Even the prescribed contraceptive pills can
run 60 a month. And it has been shown that those cost barriers
can actually cause women not to use--either use them at all, or
use them the way they are supposed to be undertaken.
Mr. Nadler. Thank you.
Ms. Uddin, the Supreme Court in the Estate of Thornton v.
Caldor struck down a Connecticut law that did not adequately
take into account the rights of those not benefiting form the
religious accommodation at issue. More recently in 2005, the
Supreme Court stated in Carter v. Wilkinson, ``Our decisions
indicate that an accommodation must be measured so that it does
not override other significant interests.''
First, doesn't that mean that neither Congress nor the
executive branch is free to ignore the rights of others in
considering a measured, workable balance; in this case the
rights of people who may want to avail themselves of
contraceptive services?
Mrs. Uddin. Well, I wanted to first start by pointing out
that the most recent relevant case in the U.S. Supreme Court
here is the Hosanna-Tabor case that--and the decision was
handed down just this past January.
Mr. Nadler. Excuse me. That is a ministerial exemption. We
are not talking about that.
Mrs. Uddin. Well, it is not----
Mr. Nadler. What? That is ministerial and employment. That
has got nothing to do with this. Wait a minute. That has got
nothing to do with this.
Mrs. Uddin. But the broader points about----
Mr. Nadler. No, it is not the broader points. I am asking
you a specific question. The court in Carter v. Wilkinson said,
our decisions indicate an accommodation must be measured so
that it does not override other significant interests. In this
case, the other significant interest is people who need
contraceptive services. Doesn't that mean that neither Congress
nor the executive branch is free to ignore their rights and say
all of the rights are on the side of the employer; we respect
his rights, and never mind any of the rights of the employees
who may need contraceptive services? We are not going to do a
balancing test.
Would you agree or not agree that the Supreme Court has
commanded a balancing test?
Mrs. Uddin. The correct test in this case, both under the
Religious Freedom Restoration Act, and under the free exercise
clause, in situations like this, where the law at issue is not
generally applicable nor neutral, is that if they----
Mr. Nadler. Wait. First of all, it is generally applicable.
Everybody has got to give contraceptives. And second of all, it
is--the California and New York courts found that those laws
which are identical basically were generally applicable.
Mrs. Uddin. Well, first to start off, it is not generally
applicable in this case, because they are--the mandate is
riddled with individualized and categorical exemptions.
Mr. Nadler. The same argument that California and New York
courts rejected, with all due respect.
Mrs. Uddin. Now, in the case of the California and New York
Supreme Court cases, there are a number of fundamental
differences between that situation and the one we are dealing
with right now.
Mr. Nadler. Yes.
Mrs. Uddin. The first is that they did not make a claim
under the Religious Freedom Restoration Act because that
applies only to Federal law.
Mr. Nadler. I understand that. I was one of the authors.
Mrs. Uddin. And so the compelling interest test comes into
play there.
Mr. Nadler. But the--okay, go ahead.
Mrs. Uddin. Second, there were a couple of really strong
free exercise claims that are--we are making here and that they
failed to make in that case.
Mr. Nadler. All right. Let me ask you finally before I go
to Bishop Lori for one question, how would you strike the
balance, assuming you agree there ought to be a balance, that
as an executive agency you are not simply free to ignore the
findings from the IOM and many professional health
organizations that these services are critical to women's
health, and there are cross barriers to women being able to
access the contraceptive services they want and need on a
consistent basis on the one hand and the religious
considerations on the other? How would you strike that balance?
Mrs. Uddin. The Becket Fund is not denying that this
constitutes health care, important health care, for women.
Mr. Nadler. How would you strike the balance?
Mrs. Uddin. The law already strikes the balance. It says
there must be compelling government interests narrowly----
Mr. Nadler. You are saying the law is wrong. How would you
strike the balance?
Mrs. Uddin. Well, for instance, you know, if you are
looking--a law has to be narrowly tailored, and one way--and it
shouldn't be intrusive and truly disbelieved. And one way for
the government to do that is to just find other avenues, and
there are so many already available or that they can come up
with to provide----
Mr. Nadler. Well, but the government found that there
weren't.
Okay. Bishop Lori.
Mr. Franks. The gentleman's time has expired.
Mr. Nadler. Can I have 1 additional minute?
Mr. Franks. Without objection.
Mr. Issa. Mr. Chairman, can we also ensure that Mrs. Uddin
would be able to fully answer her questions? She was cut off
repeatedly. She has got half a dozen things she was never able
to answer.
Mr. Nadler. As long as I can still question Bishop Lori,
that is fine with me.
Mr. Franks. Mrs. Uddin, is there any additional things you
would like to add?
Mrs. Uddin. Well, yes. Going back to the California and New
York State opinions, as I was noting, there are a number of
critical differences. One is a lack of RFRA claim.
Second is the fact that a number of very strong free
exercise claims were not made in that case; for instance, the
fact that this is not a neutral or generally applicable law,
because it is riddled with a categorical and individualized
exemptions.
And third, those cases were decided in 2004 and 2006. Now
we are dealing with, you know, post-Hosanna-Tabor free exercise
jurisprudence, and it makes a critical difference.
Mr. Nadler. You said we are dealing with what did you say?
I am sorry. Wait. You said we are dealing with what did you
say?
Mrs. Uddin. The climate of free exercise jurisprudence in
the aftermath of the Hosanna case----
Mr. Nadler. Hosanna case.
Mrs. Uddin. That came down in January. And while you might
be limiting that to the ministerial exception, the broad points
that case made is that religious employers have special rights
by virtue of the fact that they are religious.
Mr. Nadler. Okay, Bishop.
Mr. Franks. Without objection, the gentleman is recognize
for 1 additional minute to----
Mr. Nadler. Thank you.
The California suit, by the way, used the same compelling
interest test as is required by RFRA and rejected the claim.
But Justice--Bishop Lori, excuse me. In United States v. Lee,
the Amish employer had a religious objection to paying Social
Security taxes, which is a law of general applicability, and
the Court ruled that he had to pay the Social Security taxes
whether it violated his conscience or his religion or not
because it is a general law of applicability, et cetera.
What is the limiting principle to your claim that people
who conscientiously object, not just the church, but the
business owner, may refuse to obey a law of general
applicability, provide health care services? What is the
difference between that and the Amish case, and what is the
limiting--what is the limit on that? Because if there is no
limit, then we have no laws, because everybody can object to
every law based on his own conscience.
Bishop Lori. Well, I am not a lawyer, of course, so I
probably can't give you an answer that you would regard as
adequate, but I would just simply say this: That we have had
the kind of conscience protection that we have needed since
1973. It has been on the books, and chaos has not ensued.
Catholic entities have offered excellent healthcare plans. In
fact, they are so excellent that people who have availability
for their spouses' healthcare plans often opt for ours.
So our rights of conscience, which have been exercised for
a long, long time, have not prevented us from offering
excellent healthcare plans.
Mr. Franks. The gentleman's time has expired.
Now I recognize Mr. Sensenbrenner for 5 minutes.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
First of all, a matter of clarification. The Religious
Freedom Restoration Act was an accommodation to religious
interests, and its sponsors were Senator, then-Representative,
Schumer and Senator Kennedy. So this wasn't anything stinky old
conservatives like me ended up passing. It was something that
was recognized by the gentleman from New York's current Senator
and practically the entire Congress that was needed.
Now, I think this issue is basically framed in terms of
employees as they have to choose between their faith and their
job, and that should never take place in the United States of
America. This is not an issue of a single religious
denomination. A lot of this is centered around what the
Catholic Church teaches. It is about a government entity
telling the faith that it will apply its priorities
notwithstanding what the faith's teaching is. And that is kind
of a reverse disestablishment of religion, in my opinion. It is
just as bad as an establishment of religion.
Now, since the HHS mandate was reimposed without any change
from August, the exemption is a very narrow one, meaning that a
church is covered, but a religious entity is not.
You know, I know that the Gospel teaches those of us who
are Christian that we are supposed to serve everybody. You
know, we don't ask questions about people's faith, what
denomination, if any, that they belong to. But, Bishop Lori, I
want to ask you, you know, given how this works, you know, say
there is a soup kitchen that is run in a parish hall in the
basement of the church. The church has an exemption, but, say,
people come on in. Does the nun who runs the soup kitchen have
to ask the people, are you Catholic, rather than, are you
hungry, before serving the food, otherwise the exemption would
be lost?
Bishop Lori. Well, look, I think this very, very narrow
definition, this four-part test of what it means to be
religious, opens us up to all kinds of challenges, because it
is not just Catholic charities or hospitals that serve the
general public, but indeed all of our parishes are open to
serving the needs of the community. And it could not possibly
serve the common good for there to be a chilling effect on
religious entities from serving the general public, the common
good, the neediest among us, for fear that we would lose our
exemption and, therefore, be forced to violate our consciences.
It shouldn't work that way.
Mr. Sensenbrenner. Now, it has been referred to by several
of the witnesses about self-insured religious entities.
Bishop Lori. Uh-huh.
Mr. Sensenbrenner. And if the sponsoring denomination of
the religious entity has a doctrinal bar to doing something,
you know, whether it is in the healthcare field or something
like that, using the healthcare law, so you can't pay for it
directly, but you will end up having to pay for it indirectly
by shutting down your self-insured plan and by buying into the
exchanges, you know, number one, isn't it just as wrong to do
it indirectly as it is directly? And secondly, what is the cost
involved by going from some self-insured entity to going into
the exchanges? It has got to be steep.
Bishop Lori. Sure. First of all, I do not think that it
passes the moral test just to say that the insurer does it.
Even if you are not self-insured, as one commentator said, it
is like when you are in college, and you pay the older kid to
get your beer for you. It doesn't really pass the moral test.
And secondly, we are self-insured for a good reason. We are
self-insured because we can afford it. It is the way we are
able to provide high-quality healthcare plans for our
employees. And if we are forced to buy a fully insured plan or
go out into the exchanges, I think it would be, for most
places, prohibitive. Like everybody else, this is, of course, a
big challenge for us economically.
Let me also say that the grandfathered plans that we are
talking about, even those put us in the straightjacket, because
if we vary our plans a little too much either way, we lose out
on being grandfathered, if I can put it in a nontechnical way.
So what is happening is we are really being put in a
straightjacket here not only morally, but also economically.
Mr. Sensenbrenner. I thank you.
Mr. Franks. Thank you, gentlemen.
I would recognize Ms. Lofgren for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
I have listened to this testimony with some interest, and,
you know, one of the witnesses said it would be like the
government requiring us to drink red wine for our health. That
is absolutely incorrect. I mean, nobody is requiring anyone to
use birth control. If you are against birth control, fine,
don't use it. But I think it is important for the women of this
country to have that choice for themselves, not for you to
decide.
I think it is an astonishing situation that we are
discussing this here in 2012, when I thought the decision was
pretty much resolved in 1965 when I was in high school, in the
Griswold case.
I would like to ask unanimous consent to put a couple of
things in the record. One is a statement from the Leadership
Conference of Women Religious, where they point out that the
LCWR is grateful to President Obama's administration and
believe the resolution the President made is fair and helpful.
And that was issued by Sister Pat Farrell, Sister Florence
Deacon, and Sister Mary Hughes, all of the association; a
statement from the Association of Jesuit Colleges and
Universities where they commend the Obama administration for
its willingness to work with us, and look forward to working
out the details with the new regulations; a statement from
Sister Carol Keehan, the president of the Catholic Health
Association of the United States, saying that the Catholic
Health Association is pleased, very pleased, with the White
House announcement; and a statement from the Sisters of Mercy
saying that the Sisters of Mercy of America are pleased that
the adjustments are being made, and they commend President
Obama.
So I would like unanimous consent to put these statements
into the record, Mr. Chairman.
Mr. Franks. Without objection.
[The information referred to follows:]
__________
__________
__________
__________
Ms. Lofgren. I would like to ask Doctor--from UCLA, we are
both Californians, and we are both aware that the State of
California has had a mandate that birth control has to be
provided to people in health care for quite some time. Can you
describe that mandate to us here? Is it a narrower exemption
that the State has or a broad one?
I can't hear you.
Dr. Rosenstock. I am sorry. I think it would be considered
akin to the exemption that was initially promulgated by the
Administration, a narrow one. I think, as I was saying earlier,
the experience in California once the law was settled was that
this is working well, and that it was much less of a problem
than it was predicted it would be. And I would hope and predict
that the same would be true here, because it is not just
California. I was starting to say California and Catholic
Hospitals Western California, a large, religiously affiliated
employer, has included in its insurance plan contraception and
does so broadly.
I think the importance of what we are looking at here is
not just what is common practice. Twenty-eight States are
actually, in some form, already having this mandate. But what
is different is that we are talking about a no-cost; in other
words, the absence of copays and deductibles.
Ms. Lofgren. Right.
Dr. Rosenstock. By coupling the barrier of cost with the
proven effectiveness of family planning, the anticipation is
that the health will improve dramatically.
Ms. Lofgren. Now, there are plenty of reasons that some
women need birth control pills for other than to prevent
pregnancy; are there not?
Dr. Rosenstock. Oh, absolutely. So there is no question
that contraception, contraceptive pills are used for a variety
of medical conditions both because of their direct ability to
treat the condition, reproductive disorders, ovarian cysts,
acne, a range of them; also because sometimes we would have
other medical conditions for which pregnancy could put them at
significant risk and a wide range of conditions for which they
are being used.
Ms. Lofgren. Well, you know, I would just like to note
that, you know, we all pay taxes, and our taxes are used to
provide birth control to women in the military. There may be
people--or, for example, our witness, the Bishop, objects to
birth control, which is absolutely his right, but I don't think
he would argue that he shouldn't have to pay taxes because Army
women get birth control. I do think that, you know, to be
against birth control is a right in America. To deny birth
control to American women is way beyond what is right.
And with that, Mr. Chairman, I would yield back.
Mr. Issa. Mr. Chairman, I believe there was a question in
that for the bishop. I would ask unanimous consent he be able
to respond.
Ms. Lofgren. I had no question for the bishop. I had a
statement of my opinion.
Mr. Franks. All right. Let me just suggest that perhaps
some of the issues surrounding contraceptives might have been
addressed and resolved in 1965 judicially, but the issue before
us today was addressed and resolved in 1789 and 1791
respectively when we adopted the Constitution and the Bill of
Rights and later ratified them in 1791.
With that, I would recognize Mr. Lungren for 5 minutes.
Mr. Lungren. I thank the Chairman. I would say it was not a
question that was addressed to the bishop. There was a
statement of what the bishop thought according to the
gentlelady from California; a nice rhetorical technique in
which you allege someone thinks something without asking them
what they think.
There has been a couple of comments here----
Ms. Lofgren. Thank you.
Mr. Lungren [continuing]. In which reference was made to
Catholic Healthcare West, which is the proper name. They
removed the name ``Catholic'' from their operations recently.
They now call themselves ``Dignity.'' I met with them, and I
told them I thought ``Catholic'' was a good word for the last
2,000 years, and I, for one, was not embarrassed to be
Catholic.
I have been a Republican since I was adult. I have been a
Catholic since I was baptized. I have been an American since I
was born. I didn't think I was going to have a situation in
which the question would be raised whether you can be
adequately and fully Catholic and fully American.
The irony with what we have here today is that those who
were anti-Catholic in the 1800's were Republicans and Know-
Nothings. Unfortunately it appears that the party that defended
Catholics in the 1800's and now questions whether Catholic
thought is appropriate because it is antiscience, or somehow
Catholics are attempting to impose their views on others.
It is crystal clear what is happening here. It is the Obama
administration, which believes it has the right, perhaps, under
the rubric of secular humanism or some other such concept, to
impose its thoughts and its principles on those who are of the
Catholic faith and other faiths. It has nothing to do with
contraception; has everything to do with religious liberty.
In a letter that the Archbishop of San Francisco had
published, he said this: In 1804, as a result of the Louisiana
Purchase, New Orleans, formerly governed by the French Empire,
passed to the jurisdiction of the United States of America.
Sister Marie Therese Farjon of the Ursuline Order of Sisters
serving in New Orleans wrote to President Thomas Jefferson to
ask whether the sisters' property and ministries would be
secure under the new government. In a remarkable letter,
President Jefferson, the author of the doctrine of separation
of church and state, replied, ``The principles of the
Constitution and the Government of the United States are a sure
guarantee to you that it will be preserved to you, sacred and
inviolate, and that your institution will be permitted to
govern itself according to its own voluntary rules without
interference from the civil authorities. I salute you, Holy
Sisters, with respect--friendship and respect. Thomas
Jefferson, President of the United States.''
The bishop concludes his article stating that apparently
the U.S. Department of Health and Human Services is convinced
that it has found a better interpretation of religious liberty
than Thomas Jefferson. Now, Thomas Jefferson put it pretty
well, and he talked about the institutions that you have, in
this case Catholic order of Ursuline, which do works of
charity, hospitals, schools, et cetera, and we are told that
they would be able to operate within their conscience without
interference by the civil government. If this is not
interference of the civil government, I know not what it is.
Now, I realize some on the other side would say that Thomas
Jefferson was not the writer of the Constitution, he only wrote
the Declaration of Independence, but I would say that if you
are trying to understand the Constitution, you have to read it
informed by the Declaration of Independence, as Thomas--as
Abraham Lincoln said.
You know, we better call what is going on out here. This is
an attack on religious liberty. There is an attempt by this
Administration, first, to so confine the definition of
religious liberty so that it is a right of worship. Religious
liberty is so much more than the right of worship. And with all
due respect, Doctor, I understand what the recommendations of
your committee were, but I do not believe that you were charged
with the responsibility of looking into the question of the
conscience clause or the ability of religious organizations to
practice religious freedom.
There is a conflict here. There is no doubt about it. And
the question is whether the government has the right to
basically impose its thoughts and its tenets on those who do
not believe, and mandate that they take actions that otherwise
are contrary to their own witness. And if that is where we have
come, we better understand and say it. But to suggest that
some, including the former Speaker, said that this is merely an
excuse, excuse of religious liberty, belies the seriousness of
what we are about.
Archbishop Niederauer also said in his article: It is about
tea, British newspapers proclaimed in 1774 as Parliament passed
a bill that closed Boston Harbor until the citizens of
Massachusetts reimbursed East India Company for the tea that
had been thrown into the Bay by American patriots. It is all
about the tea. Of course, as he said, of course, it wasn't
about the tea at all; it was about a fundamental diminishment
of liberty that would let American colonists to refuse to
comply with a law that broached--breached the freedom which was
theirs by right.
With all due respect to those on the other side, who I take
for their generosity of spirit and their sincerity, this is not
about the issue you wish to make it. It is about the question
of mandating people to act against their conscience at the
punishment of the government with respect to a fine. That is
pretty clear. That is pretty clear.
I wish I had time for a lot of questions, but I just heard
a lot of stuff asked that--including assumptions there, and I
will just say this: I may not be the best Catholic in the
world, but I am not embarrassed to be a Catholic, and I am not
embarrassed that my church has certain tenets that I try to
follow. And I will be darned if I have to give up my
Catholicism to be a good Catholic. I think you can be both a
good Catholic and a good American. And frankly, I don't care if
you are President of the United States, you have no right to
come between me and my conscience.
Mr. Franks. Thank you, gentlemen.
And I now recognize Mr. Johnson for 5 minutes, sir.
Mr. Johnson. Thank you, Mr. Chairman.
Mr. Chairman, this hearing, to me, it smells more like
politics than it does religion, and I think it is despicable
when politicians use religion to effect a secular outcome, such
as making President Obama a one-term President. And I believe
that is all this is about.
But I will ask Ms. Monahan--I don't want you to feel like
you have been left out of this discussion--what do you--I mean,
I love Thin Mints, Girl Scout cookies. What was your gripe
about Girl Scout cookies?
Ms. Monahan. I don't think I understand the question as it
relates to this. This today is about religious liberties,
that----
Mr. Johnson. Yeah, I know, but--so you are here.
Ms. Monahan. It is an infringement----
Mr. Johnson. You are not here for the politics, you are
here for religion?
Ms. Monahan. Yes, sir, I am. With all due respect that is
why I am here.
Mr. Johnson. Let me ask you then, what about your
organization, the Family Research Council? Is it concerned with
politics?
Ms. Monahan. Sir, the Family Research Council has a
political action side, and it also has a policy side. Let me be
clear that I am----
Mr. Johnson. Okay. All right.
Mr. Franks. Let the witness answer the question, Mr.
Johnson.
Mr. Johnson. Well, this is my time. I will ask the
questions. I want her to answer yes or no, and if I feel like
she needs to explain, I will so ask her, with all due respect,
Mr. Chairman.
Mr. Franks. With all due respect, the witness should be
allowed to answer the question.
Mr. Johnson. Well, I can't have a witness answering a
question for 4 minutes and 30 seconds, filibustering me like I
am being filibustered right now. This is my time.
I mean, your organization, ma'am, sponsored a prayer-in, a
prayer vigil, to stop people from buying Girl Scout cookies
because you alleged that Girl Scout cookies is affiliated with
Planned Parenthood; isn't that correct?
Ms. Monahan. Sir, I am not aware of any----
Mr. Johnson. You are not aware.
Ms. Monahan [continuing]. Vigil that my organization has
organized to stop people from buying Girl Scout cookies.
Mr. Johnson. Well, I want to submit this document about the
Family Research Council and its anti-Girl Scout cookie prayer
vigil for the record, if there is no objection.
Mr. Franks. Without objection.
[The information referred to follows:]
__________
Mr. Franks. I would remind you that this is a hearing about
the HHS mandate, not Girl Scout cookies.
Mr. Johnson. But it is also a hearing about politics. That
is my point. This is politics more than religion.
I want to also place into the record a--looks like a press
release from Family Research Council Action that is dated
February 27, and it talks, among other things, about the
Heritage Foundation, which we all know to be a Republican-
oriented----
Mr. Sensenbrenner. Will the gentleman yield?
Mr. Johnson. I will not yield----
Mr. Sensenbrenner. Mr. Chairman, I am reserving the right
to object.
Mr. Johnson [continuing]. At this time.
And I also----
Mr. Sensenbrenner. Reserving the right to object.
Mr. Franks. The gentleman may be heard on his reservation.
Mr. Sensenbrenner. What does the Heritage Foundation have
to do with this hearing? There is no witness here representing
the Heritage Foundation, so they can't answer it.
Mr. Johnson. Well, if you listen to my question, I think
you will find it relevant.
Mr. Sensenbrenner. No. Under the regular order, I have to
decide whether or not to object, and I will,
Mr. Johnson. Well, why don't you observe your right to----
Mr. Franks. Objection is heard.
Mr. Johnson. Reserve it until I finish my question.
Then, among other things, this press release talks about
the Heritage Foundation, which we all know which way they lean,
and it also talks about a poll, a GOP Presidential poll. All of
that is on one page. I want to put that into the record as
well. This is----
Mr. Sensenbrenner. Mr. Chairman, I object.
Mr. Franks. The gentleman will state his objection. I am
sorry. The objection is heard, sir.
Mr. Johnson. Objection is heard? Well, I mean, are you
objecting to me offering this for the record?
Mr. Sensenbrenner. The answer is yes. It is irrelevant.
Mr. Johnson. Or what grounds?
Okay. Well, how did you rule? How does the Chair rule on
that objection?
Mr. Franks. It can only entered by unanimous consent, and
there is not unanimous consent.
Mr. Issa. Mr. Chairman, regular order. The time has
expired.
Mr. Johnson. Mr. Chairman, that cannot be----
Mr. Franks. The time is not expired. You have 45 seconds.
Mr. Johnson. We cannot conduct our affairs like that.
Mr. Franks. The gentleman will state his Parliamentary
inquiry.
Mr. Deutch. Mr. Chairman, is it common courtesy in this
Committee for Members to be able to offer things into the
record?
Mr. Franks. That is not a Parliamentary inquiry.
Mr. Deutch. I am questioning the Parliamentary procedure
that we use here, Mr. Chairman.
Mr. Franks. It is a courtesy, but not the rule, when an
objection is heard. So the gentleman will proceed. The
gentleman has 49 seconds.
Mr. Johnson. Forty-nine seconds left.
I will say that I guess you are here also to support the
Family Research--the Respectful of Rights of Conscience Act of
2011. That the H.R. 1179, which would allow an employer or an
insurer to refuse to provide coverage that is contrary to its
religious or moral beliefs.
Do you believe that an insurance company has a--is a person
that can have a religious or moral belief, Ms. Monahan? That is
not possible, is it? You know, an insurance company doesn't
have a soul, does it?
Ms. Monahan. Mr. Johnson, did you want me to answer your
question?
Mr. Johnson. Yeah, I gave you time.
Ms. Monahan. We do support the Fortenberry bill.
Mr. Johnson. But my question is is an insurance company
capable of having a moral or religious belief?
Ms. Monahan. To be clear, if a religious organization runs
or is contracting with the insurance company, then yes, it is
allowed to have certain mandates like that.
Mr. Johnson. So what you are trying to do is escape--or is
provide an insurance company from being able to escape an
obligation to afford contraceptives without a copay. Is that
what you are trying to do?
Ms. Monahan. Congressman Johnson, I think we can agree to
disagree. The real issue here is about religious liberty, and
it is about people like me not having to pay $1,000 a year for
drugs and devices that are going to cause abortions. The real
issue here is about religious liberty. It is not about access
to contraception; it is about religious liberty.
Mr. Johnson. Well, why don't you----
Mr. Franks. The gentleman's time is expired.
With that, I would recognize the gentleman from California
Mr. Issa for 5 minutes.
Mr. Issa. Thank you, Mr. Chairman, hopefully 6 or 7 to be
equally fair.
Mr. Johnson. Well, I am going to object to that in advance
now. I reserve the point of order on that basis.
Mr. Issa. No, that is only fair that you take 7 or 8
minutes. That is all right.
Mr. Franks. He did go over 1 minute, Mr. Issa.
Mr. Issa. That is okay, I don't need it. I will be fine. I
only have questions.
So, Bishop Lori, not taxing my non-Latin upbringing,
Humanae Vitae, or Vita, depending upon which one, but I am not
going there, On Human Life, 1968, excuse me, Pope Paul VI, on
page--and I would ask unanimous consent this be placed in the
record.
Mr. Deutch. I object.
Mr. Franks. Objection is heard.
Mr. Issa. Okay. In that case, since they are trying to
silence a legitimate document of record, on page 9 it says, The
church, on the contrary, does not at all consider licit the use
of therapeutic means truly necessary to cure disease of
organism, even if the implement--even if an implement to
procreation, which--impediment to procreation which may be
foreseen should result therefor, provided such impediment is
not for whatever motive directly willed.
Bishop Lori, I read it poorly; you know it well. What does
that mean to you when it comes to providing any and all health
provisions that are not specifically for the purpose of an
abortion or specifically for the purpose of birth control, but
rather for the health of the woman?
Bishop Lori. Thank you very much. That is Humanae Vitae
number 15, and that provision, together with the Ethical and
Religious Directives of the U.S. bishops at number 53,
recognizes that the same drug can have more than one effect. It
recognizes that some of these contraceptive drugs can also
have, of course, risks, but they also have benefits not related
to the conception of new life. And if it is necessary for it to
be administered for those other reasons, in the Catholic
healthcare plans that I am aware of, they are covered.
Mr. Issa. Sir, I just want to understand then. Anything
that is not specifically for those purposes which are
prohibited within your faith--and I am not Roman Catholic; I
don't have a problem with contraception, but I recognize your
faith does--but as long as that is not the intent, your
healthcare plans would fully cover that, and you would have no
problem with living under a law that said, in fact, to prevent
ovarian cancer, to deal with other problems that the same
medicines might do, that is all fine. That would be covered
within your plans, and you have no problem with it?
Bishop Lori. That would be essentially correct.
Mr. Issa. Okay. I only wanted to establish it because it
seems like a lot of people are trying to expand beyond what the
Catholic Church and perhaps other faiths are interested in.
Dr. Rosenstock, I want to go to you. You have been
underheard from. Clearly, as a healthcare professional, you are
here for that purpose. And I want to go through a couple of
things.
Clearly a number of drugs widely used by women ranging, if
I understand correctly, from as few as $9 to--at Target for
generic to hundreds of dollars can, in fact, be appropriate for
a woman to prevent conceiving? Is that correct, that there is a
range of products, and they are individualized for various
people's needs?
Dr. Rosenstock. Yes.
Mr. Issa. Okay. And if we had passed a law 2 years ago that
specifically had the government simply pay for that so that it
was fully covered by Federal appropriation, you would be all
right with that, and you wouldn't be here today; is that right?
Dr. Rosenstock. I am only here today to talk about the
evidence that avoiding unintended pregnancies is healthy for
women and to their care.
Mr. Issa. So if we were paying for it federally, if it was
fully paid for, guaranteed, then you would have what you came
here to talk about. In other words, the health considerations,
it is really a question of are they going to be fully funded so
that women do not deny themselves various medicines for various
purposes that might, in fact, be therapeutically good for them?
Dr. Rosenstock. I can't agree with that as written. We have
to go back to the Affordable Care Act. There is a long list of
preventive services that----
Mr. Issa. No, but my point is if--ma'am, no, Doctor,
please, because they are not going to give me extra time. If
all of these medicines that we are talking about today, any of
them that possibly could be objected to by any faith, if they
were covered by the government fully with no deductible so that
they would be fully available through ordinary health care, if
it was a government healthcare plan, you wouldn't be here
today, you would be fine with it. That is what you are here
saying women have a right and a need to; is that right?
Dr. Rosenstock. I disagree with the way that you are
construing my presence. I am sorry.
Mr. Issa. Well, no, I am just trying to understand.
Dr. Rosenstock. I would like to explain, but you have cut
me off.
Mr. Issa. No, what I am trying to understand is if it is
not--if the money were--if the drugs and the treatments were
all available and not in any way connected to a church paying
for them, then you would have what you want; is that correct?
Dr. Rosenstock. You are assuming I would want things that I
don't even understand your implication. But let me just go on--
--
Mr. Johnson. Mr. Chairman----
Mr. Issa. My time is expiring. I would ask unanimous
consent that the woman be able to continue and answer the
question fully.
Dr. Rosenstock. I think it would make sense. My intent in
being here is to provide the medical and scientific background
for how a range of services--you have asked me to focus on one
today--can improve women's and children's health, and why
access to these have been demonstrated to do just that same
thing.
Mr. Issa. Thank you.
And, Mr. Chairman, I might note that I am a businessman. I
came out of a business background, and Mark McCormack was one
of the great people that I read. And he said something very
profound in his books, which was that the difference between a
problem and a business decision is a business decision is
something money will solve; a problem is something money won't.
And I might say here today that it is very clear with over
$2 billion spent in family planning, and certainly--by the
Federal Government, and certainly more money able to be spent,
we are to a great extent arguing over whether or not this is a
decision that Congress can make and pay for, or whether we are
creating a problem by ordering people of conscience to pay for
it.
I yield back.
Mr. Franks. I thank the gentleman, and I now recognize Mr.
Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Bishop Lori, are you suggesting we can't do this, or that
it is bad policy to do this?
Bishop Lori. I am sorry, say it again.
Mr. Scott. Is your suggestion that this is bad policy to do
this, or that the Congress cannot make--this Administration
cannot impose this requirement?
Bishop Lori. I would suggest that it is a violation of
religious liberty, and I think a violation of religious liberty
necessarily results in bad policy.
Mr. Scott. But there is no question that the Administration
has the power to make that regulation?
Bishop Lori. I don't know that it does. I think that
remains to be adjudicated, but I believe it does not.
Mr. Scott. Well, if the Catholic Church policy on
contraception isn't the only religious exemption, religious
situation we have--the Christian Scientists, for example;
Jehovah's Witnesses have different healthcare, religious
beliefs--should they be required to conform to the general law
that applies to everybody else?
Bishop Lori. I believe that as a matter of general
principle, rights of conscience should be properly accommodated
unless there is a compelling government interest, and if that
compelling government interest is established, then I believe
it should be carried forward in the least intrusive way
possible.
Mr. Scott. Well, does this matter of conscience go not just
to churches, but to any devoutly religious person, say, running
a business?
Bishop Lori. I believe it should be possible to establish
and to run a business today, as it is. It is already possible
to do that on Christian principles and to operate exactly that
way, not only----
Mr. Scott. Are you suggesting----
Bishop Lori [continuing]. Believing what you believe in
private, but also putting it into practice in your business
life.
Mr. Scott. Are you suggesting that a devoutly religious
businessman running a business ought to have the--ought to have
an exemption to apply to the requirement although the business
has nothing to do with the religious, it is not a religious
organization, it is just a regular business, a sporting goods
shop?
Bishop Lori. Well, I would put it this way: If the
employees, the employer, and the insurer all agree to this, I
don't think there is a compelling governmental interest.
Mr. Scott. You know, one of the problems I have is I am
just too old. I am just too old, because when I was growing up,
a lot of people had, as a matter of real conscience, White
superiority, and they wanted exemptions. I mean, they were just
offended by the civil rights laws that required restaurants to
serve Blacks, hotels to have to rent rooms to Blacks. All of
those were a matter of conscience; they didn't want to. And you
have the same situation here, where, as a matter of
conscience--now, in the church, it is different. We are talking
about a regular commercial enterprise. Should people have the
right to exempt themselves from Title VII, employment
discrimination?
Bishop Lori. There is no law that we are talking about that
allows us to discriminate against persons. If we are talking
about the respect for rights of conscience, it lists specific
items. It talks about items; it does not talk about classes of
persons. And I would say that equating the church's teaching on
the sanctity of life and the beauty of human sexuality with
racism is something I reject categorically and find quite
offensive.
Mr. Scott. The principle we have is it is a matter of
conscience, and some people are devoutly--just have, as a
matter of their inner soul, the racial discrimination.
The EEOC ruled at one time that failure to give
contraception to women would constitute employment
discrimination based on gender if you had prescriptive drugs
covering everything else. Is that still a good law?
Mrs. Uddin. No. That has actually never carried the force
of law. The eighth circuit, which is the highest court to speak
on this issue, ruled in 2007 that, A, the EEOC opinion does not
carry the force of law; and secondly, it disagreed with the
EEOC on the fact that the failure to provide contraceptives
constitutes gender discrimination.
Mr. Scott. Even though you have provided prescriptive drugs
to everybody else?
Mrs. Uddin. That is correct.
Mr. Scott. I Yield back, Mr. Chairman.
Mr. Franks. Thank you.
And I now recognize Mr. Goodlatte for 5 minutes.
Mr. Goodlatte. Thank you, Mr. Chairman.
Ms. Uddin, am I pronouncing that correctly?
Mrs. Uddin. Uddin.
Mr. Goodlatte. Uddin, I apologize.
Under the Administration's compromise plan, insurance
companies would be forced to pay the costs of mandated
coverage. Won't those costs be passed right back onto the very
religious employers who objected to this policy in the first
place?
Mrs. Uddin. Absolutely. I think it would take some sort of
magical accounting to say that these drugs would somehow be
provided at no cost.
Mr. Goodlatte. Bishop Lori, could you tell us a little bit
about how Catholic schools, churches, charities and hospitals
operate across this country, and how this mandate will affect
these Catholic institutions?
Bishop Lori. Sure. First of all, the four-part test for how
religious you are in no way corresponds to the church that I
represent and that I love. We are organized into dioceses, and
into parishes, and into schools. They serve the general public.
Most of our institutions are self-insured; not all of them,
but many of them are self-insured. So what this means is, first
of all, that this mandate is reaching in and telling us that we
have to provide services against our teaching, either directly
or indirectly. Now, if you are self-insured, you are a provider
of services, educational, pastoral, charitable services, but
then as an employer you have to go on the other side of the
desk, and you have to provide services that are against your
teaching. So you sort of become a countersign to yourself. So
on the one hand, I am teaching, I am providing services all
based on the faith of the church; and then as an employer, I am
being asked to contradict what I teach because I am self-
insured. And because I am also the insurer, because the Diocese
of Bridgeport is self-insured, that means I am also having to
pay for these proscribed services.
So we are not talking about taxes here. We are not talking
about government dollars. We are talking about church dollars
going into this. And it is unfortunate that when the so-called
accommodation was devised, nobody sat with the Catholic Church,
or any other church for that matter, to ask the question, how
do you actually work, and what do you actually need?
Mr. Goodlatte. So the HHS mandate has a very narrow
religious employer exemption that does not exempt religious
employers who serve nonbelievers.
Bishop Lori. Uh-huh.
Mr. Goodlatte. But for the Catholic Church, isn't part of
your ministry serving all of those in need whether members of
the church or nonbelievers in the Catholic faith; and if so,
isn't the mandate's narrow religious employer exemption
virtually meaningless?
Bishop Lori. Absolutely. For example, in an inner-city
Catholic school, it would be common that over half the children
would not be Catholic. In Catholic charities, we serve in our
diocese per year over a million meals to the homeless and the
homebound. We don't ask if they are Catholic, and we shouldn't
have to ask if they are Catholic. So the answer is, of course,
we serve the common good.
Mr. Goodlatte. Ms. Monahan, the Administration is straining
to portray its contraception mandate as striking the right
balance between religious liberty and public health. Yet
employers with religious exemptions have only two options, pay
crushing fines or make available procedures they consider
grievous sins. Are the options equally limited for employees
who want access to such services should their health plan not
provide it?
Ms. Monahan. The United States in fiscal year 2011 spent $2
billion in public contraceptive services, public family-
planning programs. So for these women that employers weren't
providing contraceptives, they could access Title X family
planning. They could go to community health clinics. Nine out
of ten employers in the United States, according to the
Guttmacher Institute, right now do provide contraceptive
services. So I think women in the situation as you mentioned
would actually have more options than someone like me, who
would, in fact, be forced to violate my conscience or to lose
my health insurance.
Mr. Goodlatte. So this really is an issue of religious
liberty and not of public health, and it is also an issue of
the government determining the extent of that religious
liberty.
Ms. Monahan. I think so, because it is--the government
could have looked at other possible ways to increase access if
that was truly the bottom line, other than forcing groups that
opposed these abortifacients and contraceptives to provide
them.
Mr. Goodlatte. I agree.
Thank you, Mr. Chairman.
Mr. Franks. Thank you.
I will now recognize Ms. Jackson Lee for 5 minutes.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
At the outset I want to show respect to Dr. Rosenstock, and
I am so glad that it is before 6:30 so that I can pose some
questions to her. But, Mr. Chairman, I understand that Dr.
Rosenstock needs to leave by 6:30, so might I ask that if
Members have questions for her, they would be permitted to do
so, or, if not, to submit their questions in writing. And I
believe you are calling on me at this point, so I am up for my
questions. But if other Members----
Mr. Franks. We certainly welcome written questions offered
by the Members, and with that, please proceed.
Ms. Jackson Lee. Mr. Chairman, I am going to take an
approach that welcomes this hearing, and I don't mind and will
enjoy participating in any number of hearings over and over
again. I even applaud Miss--she pronounced the name, Uddin,
because there may be occasions when I will be in the courts as
well because of issues that I believe groups that I cherish or
religious rights that we all cherish should be challenged.
Bishop, I welcome your presence here, and welcome the fact
that all of us, I think, have great respect for religious
liberty. My faith is a faith that sees its challenges and
welcome the opportunity to practice our faith without being
fettered, in an unfettered manner.
I would like to keep this for what I believe were efforts
by the Administration to find a way to respect religious
liberty and as well do something, Doctor, that is so very
important. So let me focus on Dr. Rosenstock.
It seems like before I came in, you mentioned ovarian
cancer, and I don't want to take that lightly. Explain again
the impact of this kind of access to contraception and
examinations has on women and this devastation of ovarian
cancer.
Dr. Rosenstock. Sure. This involved a discussion about the
role that contraceptive medications can play outside of
preventing unintended pregnancies for a host of conditions,
including its known effect on reducing risk for ovarian cancer
and being a mainline treatment for women with ovarian cystic
disease.
Ms. Jackson Lee. And have you looked at the regulations
that have been struck as a compromise to respond to the very
valid concerns of religious liberty? Have you read those new
regulations?
Dr. Rosenstock. I am aware of that. I am here representing
the Institute of Medicine and our committee work, so I have
really focused on the science and public health benefits of the
recommended added screening. I certainly have reacted as a
physician to the concept of broadening these accommodations to
include employers of any type.
What worries me as a provider is the potential to wreak
havoc in the medical care system we now have. We are an
employer-based, voluntary system largely. There are some
employers who believe that vaccinations go against their
beliefs; there are others who do not believe in blood
transfusions. And I believe that opening the door so widely to
these kinds of decisions would really have the potential of
causing great ill health.
Ms. Jackson Lee. So you are seeing it from a different
perspective, but let me get you focused back on contraception
and the idea. How vital is it that we equate contraception to
women's general access to health care? What we are talking
about here is women are constructed differently. They are
blessed with the ability to procreate. How important is it that
they have access to a wide breadth of health care?
Dr. Rosenstock. When we as a committee looked at all of the
potential gaps that women had in preventive services, and
believe me, we looked at tens, and there is already a long
list, we came up with a relatively small list that meet our
criteria that affected a broad number of women, that it was
proven to be effective in improving and increasing health, and
I can tell you that when--there is no single recommendation
that met the high bar that family planning does. The evidence
is extraordinary. This is settled science. CDC called it, you
know, one of the great achievements of the last century that we
have family planning.
By the way, their top was vaccination, so I don't think it
is irrelevant to think about other----
Ms. Jackson Lee. Let me interject here for a moment
because----
Dr. Rosenstock. Yeah.
Ms. Jackson Lee. Let me just interject for a moment. I
appreciate your answer. But I ask unanimous consent to put into
the record the revised compromise, which specifically states,
Mr. Chairman, that there will be now an exemption of group
health plans and group health insurance coverage sponsored by
certain religious employers from having to cover certain
preventative health services under the provisions of the
Patient Protection and Affordable Care Act, which is what the
doctor is talking about. It may be broad, but it does, I
believe, answer the question of our religious institutions,
that they do not have to cover individuals. We may have an
agreement or disagreement, but the government did try to adhere
to religious freedom.
Mr. Sensenbrenner. Reserving the right to object.
Ms. Jackson Lee. Excuse me?
Mr. Sensenbrenner. Reserving the right to object.
Mr. Franks. The gentleman will state his objection.
Mr. Sensenbrenner. Does the document that the gentlewoman
from Texas proffers to include in the record state what the
contours of this exemption would be, or is this something that
is to be determined within the next year before the exemption
regulation is finalized?
Ms. Jackson Lee. In my interpretation of the document, it
is clear that it lays out some ground rules on the contours,
with the allowance, as all Federal regulations do, for further
discussion and amendment, and I would ask unanimous consent for
this document to be added into the record.
Mr. Sensenbrenner. Further reserving the right to object.
Is what the gentlewoman proffers a final regulation that is
binding on everybody, or is this just a discussion point for a
final regulation between now and sometime in the future?
Mr. Quigley. Will the gentleman yield? Is that proper for
him to ask during this moment, Mr. Chairman?
Mr. Franks. Really I don't think it is. I think he has the
floor to state his objection.
Mr. Sensenbrenner. Will the gentlewoman from Texas answer
my question?
Ms. Jackson Lee. I am delighted, Mr. Sensenbrenner, because
I think as a constitutionalist, as I have known you to be, this
is a final rule printed in the Federal Register. It is a public
document. And there will be other additions to it, but this can
be considered----
Mr. Sensenbrenner. Well, further reserving the right to
object, how is this final rule published in the Federal
Register different in any respect from what was an interim rule
that was published last August?
Ms. Jackson Lee. Well, I would like to pose a question in
answering the question, Mr. Sensenbrenner, is that we are here
in this hearing room talking about the rule. What is the
objection to indicating and submitting this rule for the
record?
Mr. Sensenbrenner. Well----
Ms. Jackson Lee. If we seek to have a clear understanding
of what we are discussing----
Mr. Sensenbrenner. Well, further reserving the right to
object.
Mr. Franks. The gentleman will state his objection.
Mr. Sensenbrenner. I don't think the gentlewoman from Texas
has answered any of these questions, and I withdraw my
reservation.
Mr. Franks. So without objection, it will be entered into
the record.
Ms. Jackson Lee. Mr. Chairman, let me thank the gentleman,
and I conclude by saying I think I have answered them, but I
thank him for his courtesies. And I would like unanimous
consent to put this into the record, sir.
Mr. Franks. Without objection.
[The information referred to follows:]
__________
Ms. Jackson Lee. I thank you, and I yield back. Thank you,
Doctor, very much.
Mr. Franks. The gentleman from Iowa, Mr. King, is
recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman.
I thank the witnesses for your testimony. I just want to
make my comment here, and that is that I am listening to the
legal discussion that has taken place, and I listened to the
banter that went back and forth between the gentlelady that
went to the University of Chicago whose name I can't read from
here, sorry about being--but I will direct my question to you,
and that is, I listened to that banter go back and forth, and
you were talking about Hosanna-Tabor case, and as the
discussion went back about a precedent supposedly out of the
State of California, and I just wanted to express to you that I
am a little troubled by us being drilled down into something
like that.
When I look back in this course of history, and I think of
what I recall happening, Murray v. Curlett that took prayer out
of the public school, I was a freshman in high school, and I
asked at the time, what are they going to do to stop us from
praying in the public school? Are they going to close the
school and chain the door shut? But we didn't have the civil
disobedience to proceed with what our conscience told us was
the right thing to do. We submitted and essentially capitulated
to a Supreme Court decision because we deferred to them. As an
American society and an American culture, we deferred to the
Supreme Court because we believed they wore black robes and
they were right.
A little bit later than that, and it was referenced, the
1965 case of Griswold, Griswold v. Connecticut, at that time it
was unlawful to provide contraceptives in the State of
Connecticut. And it went to the Supreme Court, and the Supreme
Court concluded that it was not only--that it was no longer--
that it could not be prohibited to provide contraceptives to
married couples in Connecticut.
And so now we have this right to privacy that was
manufactured by the Supreme Court in 1965, and in 1972, the
Eisenstadt case came out, which is everybody has got an equal
right to contraceptives, not just married couples. And then of
course 1973, Roe v. Wade and Doe v. Bolton, that the two of
those together established this supposedly constitutional
principle that everybody has a right to abortion on demand no
matter what the circumstances. And the only rollback to that in
all that period of time is the Stenberg v. Carhart case that
finally, after appeal--and we sat in this Judiciary Committee
and we wrote the ban on partial-birth abortion. Finally, the
Supreme Court upheld at least some restraint, that you couldn't
take the life of a baby that was almost ready to fill its own
lungs with air and scream for its own mercy. That is what we
have accomplished in this Court.
And now I am sitting here listening to this discussion and
this argument, and I am thinking there was a time when it was
unlawful in Connecticut to even provide contraceptives, and
this discussion is about whether or not the President of the
United States can step forward in a press conference and
announce that he is issuing an order by Presidential edict,
legislating by press conference, that he is going to compel
health insurance companies all over America to provide
contraceptives, abortifacients, and sterilizations without
charge.
This is how far we have come in my living memory. And I am
sitting here listening to this debate and discussion, and I am
hearing the minutia that has been discussed between you and Mr.
Nadler, and I am asking you why should I care what they think
in California? In fact, why should I care about the conclusions
that have been brought forward by the Supreme Court if we can
race from 1965, Connecticut having a 10th Amendment right to
establish a policy, a Supreme Court that creates a right to
privacy that is a foundation for mandated abortion, and here we
are discussing whether we are going to mandate everybody in
America----
Ms. Jackson Lee. Would the gentleman yield?
Mr. King [continuing]. That contraceptives----
Ms. Jackson Lee. Will the gentleman yield?
Mr. King. No, I will not yield. I have a question for the
gentlelady, and it is posed at this point. Why should I care?
Mrs. Uddin. The Becket Fund does not take any position on
contraception. We don't seek, our clients do not seek for it to
become illegal, and we ourselves absolutely have no position on
whether or not contraceptives or abortion should be legal or
illegal.
And one thing that I am hearing from you, that there is
this bedrock principle that protects broad liberties, and in
this case we are talking about religious liberty. And so
whether we are talking about general principles or we are
getting into the weeds, that particular principle is
consistently protected.
Mr. King. But if I could ask you, and just certainly
respectfully, that we have come this far with this giant leap
of the Supreme Court from at a point when there was a statute
that allowed protection for the religious liberty of the
citizens of Connecticut with Griswold to the point now where we
are actually having a discussion about whether or not the
President of the United States can stand before a press
conference and order that there shall be contraceptives
provided by health insurance companies. The constitutional
question of religious liberty is wrapped up in that, and I just
ask you from your perspective, do you understand how far this
country has gone with the distortion of the clear language of
the Constitution in the 40 years or so that I can remember that
I have noted?
Mrs. Uddin. I understand the historical and legal
trajectory that you are drawing, but I just want to focus on
the issue of religious liberty without respect to the broader
question of the legality of contraception and abortion, because
that is what I am here to speak about.
Mr. King. Then if the Chairman will indulge me in restating
my question, and that it does come back to is there any
protection for us in this Constitution? I understand the point
that you are making, but my point is that there has been such a
progression and distortion from the clear language of the
Constitution and manufactured principles----
Ms. Jackson Lee. Regular order, Mr. Chairman.
Mr. King [continuing]. And the emanation and penumbras that
now are before this Congress deciding whether there is a
constitutional authority of the President of the United States
to order a mandate by press conference. Is that constitutional,
do you believe?
Ms. Jackson Lee. Regular order, Mr. Chairman. Are you
yielding him additional time?
Mr. Franks. You may answer the question.
Mrs. Uddin. One thing I just wanted to point out is that
this particular case dealing with the HHS mandate and its
narrow religious exemption, if allowed to go forward, would
open up the doors to so much more.
And earlier someone had asked me about this, and to focus
the question a little bit more on the health care arena, I just
wanted to point out the State of Washington recently decided to
pass a healthcare mandate that would cover the cost of
abortion. And so certainly we have come a long way, and
depending on how the religious liberty aspects are handled
here, we will continue to move in even more extreme decisions--
extreme directions.
Mr. King. I thank the witness, and I thank the Chairman. I
yield back the balance of my time.
Mr. Franks. I thank the gentleman.
We recognize that Dr. Rosenstock will have to leave very
shortly, so, without objection, Members who have not been
recognized for questioning thus far will be recognized for not
more than 1 minute to question Dr. Rosenstock, and that time
will be deducted from their 5 minutes when we resume regular
order. Is there objection?
Who seeks recognition for the limited purpose of
questioning Dr. Rosenstock?
Mr. Quigley, you are recognized for 1 minute.
Mr. Quigley. Thank you, Mr. Chairman.
Doctor, the question or the point was made earlier that
this plan includes abortion-inducing drugs. From a medical
definition point of view, does this plan include medical-
inducing--abortion-inducing drugs?
Dr. Rosenstock. This plan includes all FDA-approved
contraception methods. I just want to say, again, the committee
did not consider abortion. It was considered beyond the scope
of the mandate, given the constraints within the Affordable
Care Act, and the recommendations were meant to recognize that
there is no one-size-fits-all for women; that it was important
that the broad array of approved FDA contraceptive methods and
devices be offered, recognizing that these are often decided by
an individual woman with her physician.
Mr. Quigley. But the American College of Obstetrics and
Gynecology's definition of what a pregnancy is, the Plan B does
not end a pregnancy, correct?
Mr. Franks. The gentlelady can answer. The gentleman's time
has expired. Please feel free to answer.
Dr. Rosenstock. Yes.
Mr. Quigley. Thank you, Mr. Chairman.
Mr. Franks. With that, I would recognize Mr. Gowdy for 1
minute.
Mr. Gowdy. Thank you, Mr. Chairman.
Dr. Rosenstock, thank you for your time, and I am going to
ask these as quickly as I can. I have four.
Can the President make people exercise if HHS decides that
they are obese?
Dr. Rosenstock. I think, as is true of this plan, these are
recommendations. No one is mandating that individuals have to
use family planning. What it is saying is if an individual
decides----
Mr. Gowdy. No, but they are mandating that it be provided
by people when it violates their conscience. So what I am
trying to get at are what are the limits of governmental
authority? Can they make smokers stop because that impacts what
the rest of us pay in healthcare premiums?
Dr. Rosenstock. I have to disagree with the analogy. I
believe the individual here is the individual patient or woman
making a choice about what to do. That is different from an
employer-based or religiously affiliated----
Mr. Gowdy. Well, that leads to this question. If our
colleagues on the other side of the aisle are so convinced that
this is a fundamental integral right, why have they not
proposed a bill where Congress pays for this and not make
people pay for it when it violates their conscience?
Dr. Rosenstock. Well, again, if we look at the coverage in
the United States, all Federal employees have this coverage,
all Medicaid patients have this coverage, all Title 10 clinic
users have this coverage. So, in fact, I believe Congress has
over and over again made this decision.
I want to sort of remember what George H. Bush said when he
was Congressman in 1972 before being President, he said if
family planning is anything, it is a public health matter, and
I believe that is what----
Mr. Gowdy. And that trumps the free exercise of religion;
did he say that?
Dr. Rosenstock. I certainly did not say that.
Mr. Franks. The gentleman's time has expired. The
gentlelady may answer the question.
With that, I recognize Ms. Chu for 1 minute.
Ms. Chu. Thank you.
Dr. Rosenstock, in my home State of California and the
State of New York, both have requirements that are essentially
equal to the HHS rule with exemptions for religious employers,
and in both States the laws were challenged by religiously
affiliated entity Catholic Charities, which provides secular
services to people of all backgrounds, and both State supreme
courts upheld the contraceptive coverage requirement. In the
California case, the court found that the government had a
compelling interest in eliminating gender discrimination in the
healthcare industry. At the time, women paid 68 percent more in
out-of-pocket costs than men.
So, Dr. Rosenstock, do women still pay more in out-of-
pocket costs today, and do you believe the HHS rule will help
eliminate this gender discrimination in health care?
Dr. Rosenstock. I certainly believe, as I tried to say,
that women per service may not be paying more costs, but they
use these services more because of their distinctive
reproductive and gender-specific capacities. And, again, I
embrace what is happening in California because I think it
shows how an accommodation to religion can work side by side
with an overall proven health benefit.
Mr. Franks. The gentlelady's time has expired.
I now recognize Mrs. Adams for 1 minute.
Ms. Adams. Thank you.
Dr. Rosenstock, I have been listening in great amazement
here. You said that your committee met. Was that open to the
public?
Dr. Rosenstock. Yes, absolutely.
Ms. Adams. It was open to the public, and all the
transcripts are available to the public?
Dr. Rosenstock. We do have some closed sessions in the--
which is----
Ms. Adams. So not all of the meetings were open to the
public then?
Dr. Rosenstock. Right, and that is the way the Institute of
Medicine----
Ms. Adams. Well, I have 1 minute, so I am going to make
sure you don't filibuster me.
Dr. Rosenstock. Every single meeting had an open session,
let me just be clear.
Ms. Adams. I asked you if it was completely open to the
public. You said some meetings were closed-door. That is the
answer I am asking for. It is just quick question and answers
because I know you are leaving, and I want to get my answers
in--or questions in.
So you have had some closed-door meetings, and can I ask,
at anytime did you consider any conscience clause or religious
exemptions when you were discussing, making--having these
discussions?
Dr. Rosenstock. No, we did not.
Ms. Adams. So you believe that it is okay to infringe upon
religious liberties and violate the First Amendment based on--
--
Dr. Rosenstock. I wholeheartedly disagree, and I find it
offensive that you would put that word in my mouth. What I said
was we looked at the science and the health effects that
proved----
Ms. Adams. Okay. Let me ask you this: Can we see the
closed-door documents, that information that was taking place?
Dr. Rosenstock. You can certainly see whatever the
Institute of Medicine and the National Academy of Sciences
provides----
Ms. Adams. I would ask that the Chairman request those
documents, transcripts of the closed meetings, be provided to
this Committee, and I yield back.
Mr. Franks. I am going to take that under advisement. The
gentlelady's time has expired.
Is there anyone else who seeks recognition?
The gentleman is recognized.
Mr. Deutch. Thank you, Mr. Chairman.
Dr. Rosenstock, I wonder if you are concerned; if any
employer can object to the inclusion of any preventive services
based on the religious liberty argument, are you concerned
about the impact that that may have in limiting coverage for
vaccinations, for immunizations, or prenatal care, or blood
transfusions, or perhaps even hospital coverage?
Dr. Rosenstock. Absolutely. I think that is the slippery
slope by opening up that door.
Mr. Deutch. How would it do that, Doctor?
Dr. Rosenstock. Well, it could do that because employers
could have expressed beliefs, personal beliefs, moral
objections to----
Mr. Deutch. And even religious beliefs?
Dr. Rosenstock. That is correct.
Mr. Deutch. Thank you. I yield back.
Mr. Franks. Who else seeks recognition to question Dr.
Rosenstock?
The gentlelady from California is recognized for 1 minute.
Ms. Waters. Thank you very much.
I understand that perhaps about 14 percent of women,
American women, use oral contraceptives for reasons other than
preventing pregnancy. Is this a known fact, and is it about 14
percent, or are there other reasons why American women would
want to use contraceptives other than preventing pregnancy?
Dr. Rosenstock. That is absolutely right. That is correct.
Ms. Waters. And if there is exemption for all
contraceptives for whatever reason, these women that would be
using contraceptives for other reasons would be denied the use
of them if we exempt blanket exemption?
Dr. Rosenstock. I think that could certainly be a
potential, depending on how that exemption was crafted.
Ms. Waters. Thank you very much.
Mr. Franks. Thank the gentlelady, and, Dr. Rosenstock,
thank you very much.
The gentleman from Texas is recognized for 1 minute.
Mr. Poe. Dr. Rosenstock, I am probably the last one to
question you. Thank you also for your attendance here today.
You mentioned slippery slope. Do you see a slippery slope
when the government comes in and says, we are making this
decision in the name of public health that pork is better for
you than beef, and therefore we, the government, mandate pork
upon the community instead of beef? I mean, you don't see a
slippery slope of the government coming in, as my good friend
Mr. Gowdy said, from South Carolina, starting to regulate the
food we eat all in the name of the government saying we have to
do this? You don't see that as a slippery slope?
Dr. Rosenstock. I don't actually.
Mr. Poe. Okay. Well, we disagree on that one, too.
I yield back.
Mr. Franks. Thank the gentleman.
Again, Dr. Rosenstock, thank you.
Dr. Rosenstock. Thank you for the opportunity.
Mr. Franks. Since in the regular sequence it would be my
turn to ask questions, I will go ahead and take that time now.
I would like to follow up, if I could, Ms. Uddin, with a
question that Mr. Goodlatte formed, just fpr a little
clarification. The HHS mandate has a very narrow religious
employer exemption that does not exempt religious employers who
serve people of other faiths. So the President requires that
you, in a sense, discriminate in providing services to get this
exemption, to get his exemption. But serving people of other
faith is often a core purpose of many religious persuasions. It
certainly is a core tenet of Christianity.
If a religious group changes their behavior to serve only
believers, thereby meeting the President's criteria, then that
group would disqualify itself from receiving most Federal
money, such as money for faith-based initiatives, because the
Federal funding requires that the religious recipients of funds
serve all people rather than discriminate. So what we have here
is a situation where the President is saying that you can
either be true to your faith and be stripped of Federal faith-
based funding, or you can violate your conscience and faith and
continue to participate in these faith-based programs, it
appears to me. In order to meet his criteria, you have to
essentially make it impossible for you to qualify for other
faith-based initiatives.
So am I correct in comporting that the President's
exemption criteria would force the Catholic Church to stop
participating in faith-based initiatives based on the faith-
based initiatives criteria?
Mrs. Uddin. I think you are correct in noting that there
are a number of complicated consequences to the way that this
religious exemption is laid out, and even including the safe
harbor rule, which gives religious organizations with
objections an additional year to comply with the mandate. But
that doesn't take away the fact that there are a number of
other transactions in which these same religious organizations
would have to certify that they are in compliance with all
Federal law, and how does that work? In the case of the safe
harbor, the fact that they are both being asked to--the same
way you can have the safety net, but at the same time
essentially, be in violation of Federal law.
Mr. Franks. Well, it seems clear that you would have to
kind of choose between the two. On the one hand, you couldn't
serve nonbelievers, as it were; on the other hand, you must in
order to qualify. So it is an incredibly complicated scenario.
Ms. Monahan, the President has promised an accommodation,
we have heard a lot about that today, and yet you testified
that no written corresponding changes have been made to the
regulation to reflect this promised accommodation. So in truth
the President has really not made good on his promise at all.
He did a great job holding a press conference to announce that
he was supposedly fixing the discrimination against religious
groups with an accommodation when, in fact, the accommodation
does not yet exist actually at all; is that correct?
Ms. Monahan. There is no accommodation. According to the
Federal Register issued on February 15, it reads, Accordingly,
the amendment to the interim final rule with comment period,
blah, blah, blah was published in the Federal Register on
August 3, 2011, is adopted as a final rule without change.
Mr. Franks. So there is really no accommodation at all
here, which is astonishing. The President says that he promises
he will follow through on this accommodation only after the
election, which is not only convenient, but fascinating since
he may be more prescient than the rest of us to know whether he
will actually occupy the White House after the election.
So leaving aside the much-heralded accommodation that does
not actually exist yet and would have little or no effect even
if it did, as we have heard in the testimony, does the
religious community have any reason to believe the
Administration's promise in this area, given its track record
so far?
Ms. Monahan. I think that many people of faith and a
growing number of evangelical and Catholics who have supported
the Administration are waking up to see that the President is--
you know, to this harsh reality that he has chosen to impose a
liberal ideology onto these people, and that we cannot trust
this promise.
Mr. Franks. Thank you.
Mrs. Uddin, one argument the proponents of the mandate have
used to justify this infringement of religious freedom is that
the polls show that a majority of Americans are in favor of
access to birth control. But, setting aside the flawed logic
necessary to go from favoring access to some forms of birth
control to mandating coverage of abortifacients, in a Republic
public opinion cannot or should not trump constitutional
rights, and it seems a patently false and deceptive rhetorical
gimmick for the President to portray this debate as one over
access to contraceptives. So under our Constitution, simply
because there is a majority that might want to access, can this
trump the constitutional right of freedom of religion, and
aren't we really talking about something that would force
people to go against their conscience and actually pay for
something for others?
Mrs. Uddin. Absolutely. Our constitutional and religious
liberties are based on protection of the minority views, and
that is the premise of our case. That is exactly what is
happening; there is a need to protect the minority view. As you
note, the majority doesn't trump the minority, and the minority
doesn't trump the majority. Each should be capable of being
able to practice their religion as they see fit.
Mr. Franks. I thank the gentlelady, and I think, Mr.
Quigley, we will recognize you now for 4 minutes.
Mr. Quigley. Thank you, Mr. Chairman.
We probably butchered your name all day long. Could you
please make sure we pronounce it correctly.
Mrs. Uddin. Yes. It is Uddin.
Mr. Quigley. Uddin. Some of us got it right. Out of
respect, and thank you for being here.
You mentioned the complications and the slippery slope that
has been talked about. Can you see that there is an argument on
the other side, though, especially if we go into the private
sector and let private-sector employers decide because of their
religious conscience they can't provide certain healthcare
issues, how that could complicate matters and infringe upon the
religious rights and healthcare rights of their employees?
Mrs. Uddin. Well, I mean, there has been a number of
different hypotheticals that have been posed, though earlier
posed by Congressman Deutch and Congresswoman Waters that this
idea of where do we draw the line, and how is this going to
stop, and there will be endless amounts of conscientious
objections. But it completely overlooks the fact that we have
an existing jurisprudence that takes care of that and that
strikes a balance and has a legal test that allows us to
determine the cases in which religious rights trump other
rights and vice versa.
Mr. Quigley. But in the end the courts are testing
something. I mean, we don't just leave out it there; there
would have to be some rule promulgated that would detail what
they have to cover or what they don't have to cover that would
then, as you say, be tried in the courts. Someone has to make
those decisions. So trusting courts throughout the land to
finally go to the Supreme Court, somebody has to make this
call. So just to rely upon the courts, I don't know that that
necessarily makes sense.
Can't you see, though, the complications involved, and you
know the diversity of our religious beliefs, and we respect all
of them. Don't you see how those folks' opinions could at some
point infringe upon other people's basic rights?
Mrs. Uddin. I mean, the reality is the right to religious
liberty is not something that is new. In fact, what is new is
that the narrowness of this exemption is unprecedented in
Federal law. And we haven't seen any major slippery slope
problems before, and I am not sure why we would see----
Mr. Quigley. With the 28 States that have already allowed
this, do you see this as causing the chaos that you describe
now?
Mrs. Uddin. No. I mean, the 28 States that allow it or
demand the coverage of contraception are completely distinct
from this situation. For one, the sort of primary threshold
difference is the fact that the exemption language in the HHS
mandate simply gives discretion to HRSA officials to determine
whether or not they are going to give an exemption, whereas in
States that have exemptions, they are required to give that
exemption. And furthermore, the State mandates provide several
avenues for religious employers to opt out of the system, I
mean, if they are self-insured or they offer ERISA plans.
Mr. Quigley. Well, we are going to argue--disagree on the
range of what they offer, and I think, with all due respect,
you take that as a definitive that is that different from the
Federal mandate. But I need to, with such a short time, move on
to the bishop.
Bishop, getting back to the point that you talk about the
healthcare exception, when the drug is used for other purposes
in the discussion you had with Mr. Issa, does that also, in
your mind, include the healthcare reasons for spacing out
pregnancies for healthcare reasons or not for having another
pregnancy at all?
Bishop Lori. When the contraceptive is used to prevent the
conception of new life, then it is against Catholic teaching,
and then it would not be covered for the reason of preventing
the conception of new life.
There are, of course, other ways to space out pregnancies
other than contraception, and, for example, natural family
planning is one of those ways to do that. You laugh at it.
Mr. Quigley. I am not laughing at it.
Bishop Lori. Yes, you are.
Mr. Quigley. I am respecting your opinion.
Bishop Lori. You are. And I think that our reasoning here
is nuanced and, I think, solid.
Mr. Quigley. And please, if I might be allowed to respond
to the bishop, Mr. Chairman.
Mr. Franks. The gentleman, without objection, is allowed an
additional minute.
Mr. Quigley. Bishop, I respect your views. I just differ
with the effectiveness there. And what we are talking about
when somebody like this where the potential life of the mother
is at stake, I would respectfully differ and have heard--what
came to mind were the jokes in reference to parents who
practice natural birth control and its effectiveness, but I
just want you to know I meant no disrespect.
Bishop Lori. Thank you.
Mr. Franks. Just for the record here, sometimes I think we
get lost in this debate here. On the one hand, the argument is
made that everyone should have access to birth control, and the
bishop is not trying to force anyone not to have access. In
this case they are trying to force the bishop to pay for it.
There is a difference.
So with that, I would now recognize the very patient
gentleman from Texas Mr. Poe for 4 minutes.
Mr. Poe. Thank you, Mr. Chairman.
I don't know how patient I have been, but thank you all. It
has been a long day for you.
This country was founded on religious freedom. People came
here, risked their lives from all walks of life to come here
for religious freedom. And this country has religious freedom,
in my opinion, like no other country. It not just one religion,
it is all religions. Protection of religious freedom is in the
First Amendment. I think it is in the First Amendment because
the First Amendment is the most important amendment. It covers
four issues, and two of those have to do with religion.
Bishop Lori, I appreciate your patience. One thing that I
would like to ask you. In all of your career, in your life, in
your life experiences, did you ever think you would see a
situation where the government was pressing government will and
denying religious freedom to the church?
Bishop Lori. That is just the point. That is just why I am
here. We are crossing the Rubicon. I can never think of any
other instance where the Federal Government has reached in and
forced a religious organization to provide and, indeed, pay for
something that violates its religious tenets. This is crossing
the Rubicon. This is violating a principle in a way that it has
not been violated before, and that is very much why I am here.
Mr. Poe. Did you ever think it would come to a point in
this country that we would be having this debate as to whether
or not the Catholic Church and others would be forced by the
government to do something that violates their religious
beliefs? Did you ever think it would come to this in our
country?
Bishop Lori. No. We have had a fine accommodation that has
been a part of Federal law for a long time. I think religious
groups, not just the Catholic Church, have relied on these
provisions in Federal law. I think we had assurances when
healthcare reform was under way that we would have those kinds
of conscience protections, and now we see them going away.
Mr. Poe. In your opinion, is it for the government to
decide whether government action violates religious liberty, or
is it for the church, or the denomination, or the religious
community to decide if government action violates religious
beliefs?
Bishop Lori. What is disturbing in this whole debate is the
attempt on the part of government to make religion fit into its
own narrow definition. That definition does not describe who we
are, and any attempt to delimit the mission of the church is,
in our view, a great violation of religious liberty. But we
should define our own mission, and it should be for the
government to accommodate that mission unless there is a
compelling governmental interest not to do so, and even then it
has to be done by the least restrictive means possible.
Mr. Poe. My time is up. I yield back.
Mr. Issa. Would the gentleman yield?
Mr. Poe. I yielded back.
Mr. Franks. You use your time very well, Mr. Poe.
I now recognize the gentlelady from California Ms. Waters
for 4 minutes.
Ms. Waters. Thank you very much.
Mr. Chairman, I note that a lot of the discussion today
centers around the accusation that the Administration is
forcing religious institutions and organizations to violate
their beliefs and forcing them to pay for contraceptive
coverage. Now, if I understand it, the Administration backed
off, and the Administration is not forcing the church or
religious organizations to violate their religious beliefs; is
that correct, Bishop?
Bishop Lori. I do not think it is correct. I believe that
the rule, the HHS interim final rule, as proposed in August of
2011, remains on the Federal register unchanged. There is
perhaps----
Ms. Waters. Bishop--if I may, Bishop----
Bishop Lori [continuing]. Promise of----
Ms. Waters. The Catholic Health Association said it was
very pleased with the White House announcement that a
resolution has been reached that protects the religious liberty
and conscience rights of Catholic institutions. The framework
developed has responded to the issues we identified that needed
to be fixed. The Catholic Charities made a statement; Reverend
John Jenkins, president of University of Notre Dame, made a
statement; Catholics United made a statement. It is almost as
if----
Mr. Lungren. Will the gentlelady yield on the quote from
Notre Dame?
Bishop Lori. May I respond to this?
Ms. Waters. On my time, please. I am not yielding.
Mr. Lungren. I wouldn't either if----
Ms. Waters. It is almost as if nothing has happened, and
the Administration has not said or done anything that is being
recognized here, and I want to just put that on the record. I
understand that there are some organizations that may or may
not be in the description of a religious organization purely,
and they have time to continue to work with the Administration
to work this out.
Now, having said that, if, in fact, you have women in a
religious organization that says, I want to have
contraceptives, and you don't have to pay for them, the
government is not making you pay for them, you are self-
insured, et cetera, et cetera, but there is a third-party
insurance company that is offering me and these five other
women in the workplace contraceptives, would you prevent that?
What would you say to that employee?
Bishop Lori. Since I am self-insured, it would be myself
or, rather, the diocese of Bridgeport that would be called upon
to provide the contraceptive, and therefore we would be going
against our own teachings.
Ms. Waters. No, what I am saying to you, Bishop, is this:
That the women in the workplace say to you, and the government
and everybody else says to you, that, okay, you are self-
insured, you don't have to do that, we are not going to ask you
to violate anything. But here are these women who work for you,
and they are saying, there is another insurance company out
there who will take care of us. You don't have to pay for it,
we understand that. We are not asking you for anything. We just
want the right to exercise our freedom.
Bishop Lori. If they wish to obtain those so-called
preventive services in some other way apart from the church
that does not in any way implicate the church, that is
something I would not even inquire about and probably not know
about. For example, it was entirely possible that these so-
called services are obtained through the health insurance plan
of one's spouse or might be obtained through private payment.
That I probably would not even know. There would be no need to
ask me about that.
Ms. Waters. That is good to know. So I feel comfortable
that women in the workplace would not have their jobs
jeopardized in any way if they received support for
contraception from--contraceptives from a third party?
Bishop Lori. If it in no way implicates the church, I would
not even know about it, and so it is really a moot question.
Mr. Franks. The gentlewoman's time has expired.
I now recognize Mr. Gowdy for 4 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
It strikes me that there are three overarching questions:
Number one, can government force citizens to accept certain
religious beliefs; number two, can government prevent citizens
from holding certain religious beliefs; and thirdly, Mr.
Chairman, can government decide which religious beliefs are
acceptable and which are not? And I find it instructive that in
what is supposed to be a legal hearing on the free exercise of
religion, the Democrats offer a healthcare professional as
their witness.
And then I thought some more about it, and I thought, Mr.
Chairman, well, of course they did because Supreme Court law is
not on their side. When a State decided to tell a church you
have to pledge allegiance to the flag, the church objected, and
the Supreme Court said, you are right, you don't have to. And
when a State decided to tell a religious organization, you must
display a license tag that has a certain phrase on it, the
church objected, and the Supreme Court said, you are right, you
don't have to. And when the State exercised what is a pretty
compelling interest in having an educated citizenry and said,
you must send your students to school to a certain age, a
religious organization objected, and the Supreme Court said,
you are right, you don't have to. And whether it is animal
sacrifice, or whether it is working on Saturdays, or whether,
Heaven forbid, it is deciding who your ministers are, and the
Supreme Court ruled 9 to 0.
Mr. Chairman, can you find me another case in this
fragmented state of jurisprudence that we are in, a 9-to-
nothing case, that this Administration overstepped its bounds
because it tried to tell a church who it can hire, fire, and
retain as a minister?
This is a legal issue, and the Administration will prevail
if it can prove two things: number one, that there is a
compelling State interest in providing free contraceptive care
to the contrary of people's religious beliefs. And you sit
there and think, well, it is important, just like fighting
obesity and stopping smoking and all the other things that I
couldn't get Dr. Rosenstock to answer for me. It is important.
Is it compelling? Well, how can it be compelling when you
grandfather out so many entities and when you have so many
exceptions?
But just give them that, Mr. Chairman. Give them the
compelling interest part for sake of argument. Is it the least
restrictive means?
Mr. Chairman, if our colleagues on the other side of the
aisle want to create within the penumbra of the Fourth
Amendment a constitutional right to free contraception, let
them pass a bill, but do not make that man do it when it
violates his religious beliefs.
So I would ask this to the two legal experts, because I am
not. But you don't have to be one to look at Supreme Court law
and see if you can protect a group's right to practice animal
sacrifice in Florida, but you can't stand up for the Catholic
Church's beliefs on when life begins.
So I would ask my two legal experts this: Does it meet the
compelling interest test, and is there a least restrictive
means of accomplishing this goal even assuming arguendo that it
does?
Ms. Monahan?
Ms. Monahan. Just to clarify, I am not a legal expert, so I
defer to our legal expert over here.
Mr. Gowdy. All right, Ms. Uddin.
Mrs. Uddin. To answer your question in a nutshell, I mean,
it is completely unconstitutional, and it does not satisfy the
compelling government interests or the least intrusive means
test.
Mr. Gowdy. And tell us in the 45 seconds I have remaining
why it doesn't meet the compelling interest test.
Mrs. Uddin. Well, I mean, you have to understand what has
constituted compelling government interest in the past. It is
something like national security or preventing crimes, and if
you really think about the standard, it is something that is
used in the context of the equal protection clause when we
determine when racial discrimination is allowed and when it is
not. And when that standard is met, racial discrimination is,
in fact, allowed.
So if you think about it that way, you understand just how
extreme or how strict the standard is. And absolutely you can
say that here in this situation, the stated government interest
is an increase in the access to contraception, and when applied
to religious organizations, that is only a marginal increase in
access to contraception, which absolutely we can all agree does
not rise to the level of a compelling government interest.
Mr. Gowdy. Well, I am out of time, so I won't have a chance
to ask you if the President can make people stop smoking
because that is in the overall health benefit of all of us, or
whether they can make diabetics diet so all of our costs go
down. I will have to save that for another hearing, and
hopefully the Democrats will invite a legal expert instead of a
healthcare professional, Mr. Chairman, if we have another
hearing.
Mr. Franks. Well, Mr. Gowdy can be the Chairman's lawyer
anytime.
And I would now recognize Mr. Scott for purposes of----
Mr. Scott. Thank you, Mr. Chairman.
I ask unanimous consent to enter into the record a memo
from the National Women's Law Center titled--the title is
``Title VII Requires Covered Employees to Provide Contraceptive
Coverage,'' and points out the EEOC ruling and several court
decisions.
Mr. Franks. Without objection.
[The information referred to follows:]
__________
Mr. Issa. Mr. Chairman, I would ask unanimous consent.
Mr. Franks. Does the gentleman have an objection?
Mr. Issa. No. Actually I want to----
Mr. Franks. Do you reserve an objection?
Mr. Issa. No. I actually also want to ask unanimous consent
that the earlier document first authored in 1968 by Pope Paul
VI be entered in the record without objection.
Mr. Franks. Without objection.
[The information referred to follows:]
__________
Ms. Jackson Lee. Mr. Chairman.
Mr. Franks. Without objection until everybody gets their
stuff in the record without objection.
Ms. Jackson Lee. Thank you for your courtesies.
I think the gentlelady from Florida asked for some
information, and I would like to direct this to the Chairman.
We are Judiciary, but I would like to inquire of HHS, because I
think the bishop articulated it excellently, of their plan of
implementation where the religious entity will have no
responsibility for paying for the insurance; that is, I would
like to have that in writing, writing from HHS.
Mr. Franks. The Chair will take it under advisement.
Ms. Jackson Lee. They will accept that, and then I would
just ask one other question on the record. I would like to know
whether or not the legal--I am trying to--Ms. Uddin's legal
firm addresses any questions dealing with Seventh Day Sabbath
and represents any clients dealing with----
Mr. Franks. The gentlelady can submit those questions in
writing.\1\
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\1\ The material referred to was not submitted.
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Mr. Franks. I would now recognize Mrs. Adams for 4 minutes.
Ms. Adams. Thank you, Mr. Chairman.
Bishop Lori, I was listening, and you said that during the
discussions on the healthcare law, you were promised that, you
know, the religious liberties were going to be kept intact.
Then after the rule was released, again the promise. But then
on February 10th, when the rule was finalized, it said the
interim rule was finalized without change. Isn't that correct?
Bishop Lori. Yes. It says so four times.
Ms. Adams. Yes. So would that, then, lead you and the rest
of the panel to be concerned about the proposed promises to
address it at a later date and time?
Bishop Lori. Sure. What worries me, for example, would be a
statement by Secretary Sebelius to the effect, for example,
that religious insurers really do not shape their plans
according to their religious convictions. Things like that sort
of bode badly for what might be ahead. We don't know, though,
for sure.
Ms. Adams. And I listened with great intent on the if you
self-insure, but the insurance company has to pay for it. If
you are self-insured, that would be you; would it not?
Bishop Lori. That is correct.
Ms. Adams. So if you are self-insured, and the insurance
company has to pay for something that you believe goes against
your tenets, would that violate your religious liberty?
Bishop Lori. It would. We have, of course, a third-party
administrator, in our case Aetna, but it is the diocese that
collects the funds, and it is the diocese that ultimately pays
out the funds.
Ms. Adams. Well, as a woman I understand the difference
between religious liberties and the ability to get
contraceptives and the insurance for contraceptives, and I for
one take offense when my government violates what I believe are
my First Amendment rights.
So with that in mind, Ms. Uddin, you know that the
government admits contraception services are widely available,
and that the Federal Government already spends hundreds of
millions of dollars each year funding free or nearly free
family-planning services under its Title X program. So is this
the case, then, of the government putting a grievous burden on
religious entities in order to avoid placing a relatively minor
burden on the individuals that they employ?
Mrs. Uddin. Absolutely. I mean, the burden here is not just
substantial, it is quite severe. In many cases a lot of these
organizations are going to have to pay literally hundreds of
thousands of dollars in penalties for failure to comply with
the mandate.
Ms. Adams. And, Ms. Monahan, I was amazed earlier, too,
about the conversation, because you are here to testify on what
actually is what I believe and I think you believe an assault
on our religious freedoms and religious liberties, Amendment I.
And do you believe that this proposed rule, finalized rule,
with the possible promises, as we have heard--because it was
promised during the debate, it was promised after the debate,
it was promised after the rule was made public, but yet the
rule has been finalized, and guess what? The promise hasn't
come through, but don't worry, we are going to get to it after
the election now. So do you believe that this rule does
infringe on your religious liberty?
Ms. Monahan. Without a doubt. Yes. This rule infringes upon
my religious liberty. I pay approximately close to $1,000
annually into my insurance premium, and it would absolutely
violate my religious liberties if that money went to pay for
drugs that can have modes of action that can cause abortion,
both pre- and post-implantation in the case of Ella.
Ms. Adams. Mr. Chairman, as a woman, I believe that this
rule as proposed violates my religious liberty.
Mr. Issa. I would ask unanimous consent the gentlelady have
an additional minute.
Mr. Franks. Without objection.
Mr. Issa. Would the gentlelady yield?
Ms. Adams. I will yield.
Mr. Issa. Thank you.
I just have one closing quick question for our
constitutional expert. You have been very generous with
opinions, and I appreciate that. In the case of a long-
forgotten bill, BCRA, the bipartisan campaign reform bill,
there was an expedited capability to go to the Supreme Court,
and essentially BCRA was stayed until that happened. There was
no such expedited capability under ObamaCare.
If you were able to have this issue expedited to the
Supreme Court in the same way as the bipartisan campaign
finance reform was, and based on the current rule as it is, is
there any doubt in your mind that it would be held
unconstitutional and that this hearing would therefore not have
been necessary?
Mrs. Uddin. There is no doubt at all in my mind.
Mr. Issa. So you would welcome a piece of legislation that
would attempt to, in fact, make this issue ripe for the Supreme
Court at the earliest possible date so that ultimately, even if
we don't have individually the ability to change the law, but,
rather, let the Court decide?
Mrs. Uddin. I welcome anything that will get rid of the
religious liberty problems inherent in this mandate.
Mr. Issa. And, Bishop Lori, the same thing. You would
welcome having the Court, based on its history, make the
decision of what ultimately you may be forced to pay fines
waiting for that decision?
Bishop Lori. I would.
Mr. Issa. I thank the gentlelady, and I thank the Chairman.
Ms. Jackson Lee. Mr. Chairman.
Mr. Franks. Does the gentleman----
Ms. Jackson Lee. No, it is the deep voice over here.
Mr. Issa. I would continue yielding to the gentlelady from
Texas.
Mr. Franks. Without objection.
Ms. Jackson Lee. I greatly appreciate it.
Very quickly, I disagree, Ms. Uddin, that they would be
paying hundreds of thousands of dollars. What I wanted to
explain on the record is that the implementation of the
compromise really speaks to what Bishop Lori has asked for, and
I believe that we should look to that implementation as a
response to the firewall between church and state, which I
believe is very important.
So I thank the gentleman for yielding. I don't think that
was clarified. There is no one paying $100,000 yet; the rule is
not in place. No one is being obligated to pay that at this
point in time. We are pursuing a rule that is not in place.
Mr. Sensenbrenner. Will the gentlewoman yield, the
gentlewoman from Florida yield?
Ms. Adams. I will, but just one quick question. If the
insurance company has to pay, who pays into the insurance
companies, Ms. Uddin?
Mrs. Uddin. The employer in question.
Ms. Adams. But employees with their premiums and everything
else. So somebody is paying for it, it is just not this
unknownentity called ``the insurance company,'' correct?
Mrs. Uddin. Absolutely. But I think a more central point
here is that we are just dealing right now with a promise, and
it is not--it doesn't have any legal force. And as a law firm,
the Becket Fund cannot really consider that in its arguments
because----
Ms. Jackson Lee. But you are suing for something that is
not in place. You are suing nothing. It is not in place. It is
not being implemented.
Mr. Franks. It is the gentlelady from Florida's time.
Mrs. Uddin. We are suing the--it is just without----
Ms. Jackson Lee. It doesn't exist.
Mr. Sensenbrenner. Will the gentlewoman from Florida yield
to me? You know, I am a bit confused. When the gentlewoman from
Texas said that she was going to introduce the compromise that
had been reached, I had a problem with that. Then the
gentlewoman from Texas just a few minutes ago asked the Chair
to take under consideration sending a letter to Secretary
Sebelius asking for the text of the compromise. Now, either----
Ms. Jackson Lee. If the gentleman would yield?
Mr. Sensenbrenner. Either there----
Ms. Jackson Lee. You incorrectly heard me.
Mr. Sensenbrenner. That is hard to incorrectly hear you,
ma'am.
Ms. Jackson Lee. Yes, you did.
Mr. Sensenbrenner. You know, there is a certain degree of
inconsistency. The fact is that the compromise is under
consideration. I imagine it will be under consideration until
after the election, and then it will probably be litigated to
an even greater extent than it is being litigated now.
You know, meantime Ms. Uddin's testimony very clearly
stated in the written testimony how big fines these religious-
based institutions would be facing. And I think when we are
talking about the legalities of this, we had better be darned
sure that people are not fined for protecting their well-held
religious beliefs, and I am afraid we might be getting down to
that.
Mr. Franks. The gentleman's time has expired. All time has
expired.
Ms. Jackson Lee. Would the gentleman yield for an
explanation?
Mr. Franks. All time has expired.
Mrs. Uddin. If I can just clarify, I think the confusion
that Congresswoman Jackson Lee has, and that is that the
interim final rule that does not include a compromise is the
final rule. I think that is the central issue of confusion
here. And regardless of the compromise, even if it was
implemented, it still does not satisfy all the constitutional
issues here.
Ms. Jackson Lee. Mr. Chairman, I would like unanimous
consent to put a statement in the record. It is in writing.
Mr. Franks. Without objection.
Ms. Jackson Lee. Which answers the gentlelady's issues.
There is no injury. I don't know what the purpose of her
lawsuit is, but I will put into the record an explanation of
the existence of the rule as a safe harbor and that it will not
be in place until August 2013. So I ask unanimous consent to
put the statement in the record.\2\
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\2\ The statement referred to was not submitted.
---------------------------------------------------------------------------
Mr. Franks. Without objection.
Mr. Sensenbrenner. And I would ask unanimous consent that
Ms. Uddin, on behalf of the Becket Foundation, be able to put a
comment in the record in rebuttal to Representative Jackson
Lee's statement.
[See footnote 1.]
Mr. Franks. Without objection.
All right. I would like to thank our witnesses for their
testimonies today. I would like to thank the Members for their
participation. Without objection, all Members will have 5
legislative days to submit additional written materials and
questions for the witnesses or additional materials for the
record.
This hearing is adjourned.
[Whereupon, at 7:15 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Post-Hearing Questions and Responses of Asma T. Uddin, Attorney,
The Becket Fund for Religious Liberty
__________
Material submitted by the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Chairman, Committee on the
Judiciary
__________
__________
__________
__________
__________
__________
__________
__________
Material submitted by the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
__________
__________
__________
Material submitted by and Prepared Statement of the Honorable Jerrold
Nadler, a Representative in Congress from the State of New York, and
Member, Committee on the Judiciary
Thank you, Mr. Chairman.
The title of this hearing suggests that we need only consider the
religious liberty of those who object to coverage for contraception. It
does not even hint at the significant interests of the government or of
the millions of women and families who seek access to safe and
affordable contraceptive services.
Neither Congress nor the Executive Branch is free to ignore these
interests, and--far from waging a war on the Constitution or on
religion--President Obama and his Administration have sought a sensible
balance that ensures that all women have access to free contraceptive
services and honors the religious beliefs of those who object to
providing or paying for these services.
A ``sensible balance'' is exactly what is required by our laws and
Constitution. As one of the architects of the Religious Freedom
Restoration Act of 1993--or RFRA--I worked hard to overturn the Supreme
Court's decision in Employment Division v. Smith. As we explained in
our findings to RFRA, the core principle we codified by restoring the
``compelling interest'' test for laws that substantially burden
religion was the need for ``sensible balances between religious liberty
and competing prior governmental interests.'' RFRA was supported by a
broad coalition ranging from the ACLU to the National Association of
Evangelicals, and both Chambers of Congress passed it with overwhelming
bipartisan majorities.
The Constitution also demands a sensible balance. Where--as is the
case here--the government chooses to accommodate religious beliefs,
even if doing so is not constitutionally required, the government must
also take into account the interests of those who do not benefit from
the accommodation.
In striking down Connecticut's law allowing Sabbath observers to
take their Sabbath day off work in Estate of Thornton v. Caldor, for
example, the Supreme Court found that, because ``the statute takes no
account of the convenience or interests of the employer or those of
other employees who do not observe a Sabbath,'' it constituted an
``unyielding weighting'' in favor of religion that violates the First
Amendment. In the 2005 case of Cutter v. Wilkinson, the Court made
clear that ``an accommodation [for religion] must be measured so that
it does not override other significant interests.''
In addressing the exact question at issue here, the California
Supreme Court upheld application of a contraceptive coverage
requirement, finding that exempting religiously-affiliated charities
would ``increas[e] the number of women affected by discrimination in
the provision of health care benefits,'' whose interests could not be
overlooked. As the California Supreme Court explained:
``Strongly enhancing the state's interest is the circumstance that
any exemption from the [state contraceptive coverage requirement]
sacrifices the affected women's interest in receiving equitable
treatment with regard to health benefits.''
The Administration's policy is an attempt to balance competing
rights and, in seeking a sensible balance at the federal level, the
Administration understandably looked to California's experience and
modeled its initial August 2011 exemption for ``religious employers''
on laws like California's and New York's, both of which have been
upheld as constitutional by their State's highest courts.
This original exemption for ``religious employers'' was criticized
as too narrow because it would not include religiously-affiliated
hospitals, universities, and charities that serve and employ persons
from a variety of faiths, many of whom may not share their religious
beliefs. Responding to these concerns, President Obama and Secretary of
HHS Kathleen Sebelius crafted an additional accommodation that
establishes a safe harbor for a year (until August 1, 2013). During
this time, a final rule will be promulgated that still ensures that all
women have access to contraceptive services. But objecting religious
organizations will not have to provide or pay for these benefits.
Instead, insurance companies will contact employees and offer these
benefits to them directly and free of charge. The Administration has
said that this is workable because covering contraception saves money,
and that insurance companies will not be permitted to increase premiums
of objecting employers to cover the cost of contraceptive services.
Many who objected to the original rule as too narrow support this
approach. For example, the Catholic Health Association said it was
``very pleased with the White House announcement'' and it ``looked
forward to reviewing the specifics.'' The Association of Jesuit
Colleges & Universities ``commended the Obama administration for its
willingness to work with us on moving toward a solution'' and ``looked
forward to working out the details of these new regulations with the
White House.''
Others are not satisfied. The United States Conference of Catholic
Bishops, for example, initially called the plan a ``step in the right
direction'' but later condemned it, taking the position that ``the only
complete solution to this religious liberty problem is for HHS to
rescind the mandate of these objectionable services.'' Some Members of
Congress have also called for rescission of the requirement or, in the
alternative, for legislation that would exempt any employer or insurer
from providing any services to which they object on religious or moral
grounds. These proposals--like H.R. 1179, the the ``Respect for the
Rights of Conscience Act of 2011,'' cause grave constitutional concerns
by granting an unyielding weight to the interests of religious
objectors at the expense of all others.
Where, in these demands for complete removal of or exemption from
the requirement for preventive contraceptive services, is there any
acknowledgment or protection of the religious, health, and economic
rights of women or the significant public health interest that the
government shares in improving the well-being and health of women and
their families?
99% of all women who are sexually active in their lifetimes use
contraceptives and nearly 38.5 million women are currently using some
method of contraception. The interests of these women and their
families cannot be ignored and should not be cast aside.
We are likely to hear that requiring access to cost-free
contraceptive services--and making those services part of routine,
preventive care--is not necessary. Women can easily get contraception
at a local clinic or over the internet, this care is inexpensive, and
removing the requirement of coverage will not really harm women or
their families.
Most of the people making these claims are not public health
experts. They are not doctors. They are not Sandra Fluke's friend at
Georgetown Law, who could not afford the out-of-pocket costs required
to continue prescription birth control that stopped cysts from growing
on her ovaries. Without this medication, a tennis-ball size cyst grew
and required a trip to the emergency room and complete removal of an
ovary. Ms. Fluke's testimony, provided at a hearing held last week by
Minority Leader Nancy Pelosi, provides several compelling examples of
the cost barriers to obtaining contraceptive services and the real harm
caused by inadequate access to that care. I ask that her testimony be
included in the record for this hearing as well.
Today, we have a doctor and public health expert with us. Dr. Linda
Rosentock is the Dean of the School of Public Health at UCLA. She also
chaired the Committee on Preventive Services for Women, convened at
HHS' request by the Institute of Medicine--a nonpartisan organization
responsible for advising the federal government on issues of medical
care, research and education--to study and make recommendations
regarding the preventive services that should be provided to women at
no cost, as was required of HHS by Congress in the Affordable Care Act.
HHS accepted all of the IOM's eight recommendations, one of which
was to include FDA-approved contraceptive services as part of routine,
preventive care for women because of the tremendous benefits that
family planning provides for women and their families. I look forward
to hearing from Dr. Rosenstock about this decision.
I also urge all of my colleagues to set partisan politics aside for
a moment and consider carefully the accommodations that the
Administration has proposed.
I believe that the President and Secretary Sebelius can and will
achieve a workable balance. They already have gone beyond what I
believe is required as a purely legal matter to accommodate religious
belief, though I support their laudable work to ensure that any burden
on religion will be minimal, which the proposed rule ensures by
removing objecting employers from the equation.
I fear that those who continue to object--and do so despite the
fact that their right to decline to participate in the provision of
preventive contraceptive services has been respected--truly seek to
block women's access to contraceptive services altogether. But the
Constitution does not grant them that right and, in fact, guards
against that risk. As Judge Learned Hand once explained, the First
Amendment ``gives no one the right to insist that in pursuit of their
own interests other must conform their conduct to his own religious
necessities.'' Sacrificing the rights and needs of women, and of the
public health, by removing the requirement for these critical services
or broadly exempting anyone who might object, is neither wise nor is it
constitutional.
With that, I yield back the balance of my time.
__________
Material submitted by the Honorable Mike Quigley, a Representative in
Congress from the State of Illinois, and Member, Committee on the
Judiciary
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California, and Member, Committee on the
Judiciary