[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
     EXECUTIVE OVERREACH: THE HHS MANDATE VERSUS RELIGIOUS LIBERTY

=======================================================================




                                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

                              ----------                              

                           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

                              ----------                              


                       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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:]
    
    


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    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:]

    
    
    
    
    
    
    
    
    
    
    
    
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    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\
---------------------------------------------------------------------------
    \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













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 Material submitted by the Honorable Lamar Smith, a Representative in 
   Congress from the State of Texas, and Chairman, Committee on the 
                               Judiciary






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Material submitted by the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
















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 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.
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 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





                                 
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