July 14, 2014

Dear Senator:

We are writing to state our strong opposition to the misnamed "Protect Women's Health From Corporate Interference Act of 2014" (S. 2578). Though cast as a response to the Supreme Court's narrow decision in Burwell v. Hobby Lobby, the bill ranges far beyond that decision, potentially attacking all existing federal protections of conscience and religious freedom regarding health coverage mandates.

As a broad, interfaith coalition of religious leaders recently explained: "Congress has never passed legislation with the specific purpose of reducing Americans' religious freedom. It should not consider doing so now." That is especially true of this bill, which:

  • Curtails RFRA, despite claims to the contrary. Although one of the findings in the bill claims that it is "consistent with the Congressional intent in enacting the Religious Freedom and Restoration Act of 1993" (RFRA), in fact the bill's operative provisions explicitly forbid application of RFRA whenever the federal government wishes to override the religious freedom rights of Americans regarding health coverage.
  • Applies to other federal conscience protections, not just RFRA. Although the bill singles out RFRA by name, the bill also appears to override "any other provision of Federal law" that protects religious freedom or rights of conscience regarding health coverage mandates. These protections could include, among others, longstanding conscience clauses on abortion, such as the Hyde-Weldon amendment. The bill expressly leaves in place only the HHS mandate's own insufficiently narrow exemption for "houses of worship" and its contested "accommodation" for religious nonprofit organizations.
  • Applies to all present and future coverage mandates, not just contraception. The bill's rollback of federal conscience protection applies not just to contraceptives, but to any "specific health care item or service" that is mandated by any federal law or regulation. If, in the future, the executive branch chose to add the abortion pill RU-486, or even elective surgical abortion, including late-term abortion, to the list of "preventive services," those who object to providing or purchasing such coverage would appear to have no recourse under RFRA or "any other provision of Federal law" that may have protected against this mandate. Existing conscience protection against the federal "essential health benefits" mandate, still being defined state-by-state, could be jeopardized as well.
  • Applies to all employers, not just closely held for-profits. Although the Hobby Lobby decision covered only closely held corporations, this bill covers "employers" without limitation—nonprofit or for-profit, publicly held and closely held, even sole proprietors. Again, all that remains are the inadequate exemption and "accommodation," which protect only against mandated contraceptive coverage and remain subject to further restriction by the executive branch.
  • Applies to employees, their minor dependents, and other stakeholders, not just employers. By its terms the bill denies religious freedom rights not only to employers, but also to employees, employee organizations, and insurers. Accordingly, a mother who objects to her group health plan's federally mandated coverage of, for example, sterilization or abortifacient drugs for her minor daughter, would have no recourse in federal law, as her objection would deny that "benefit" to her "covered dependent" who is "entitled" to it by the terms of this Act.
  • Entrenches bad regulations by statute. The bill allows modifications to the mandate and its exemption and "accommodation," but only those "consistent with the purpose and findings of this Act." That is, the executive branch would appear to be free to reduce or eliminate the exemption or "accommodation," but forbidden to expand the exemption or otherwise make changes that might reduce the scope of mandated coverage.
  • Further encourages employers to drop coverage. Reducing the scope of religious freedom protection will especially impact employers who now gladly provide generous coverage, but object in conscience to a "specific health care item or service," pressuring them to simply drop coverage and attempt to endure the far smaller financial penalty for offering no health care at all.

In short, the bill does not befit a nation committed to religious liberty. Indeed, if it were to pass, it would call that commitment into question. Nor does it show a genuine commitment to expanded health coverage, as it would pressure many Americans of faith to stop providing or purchasing health coverage altogether. We oppose the bill and urge you to reject it.

Sincerely yours,

Most Reverend William E. Lori
Archbishop of Baltimore
Chairman, Ad Hoc Committee for Religious Liberty
United States Conference of Catholic Bishops

Seán Cardinal O'Malley
Archbishop of Boston
Chairman, Committee on Pro-Life Activities
United States Conference of Catholic Bishops

Learn more from the S.2578 Backgrounder