FOR IMMEDIATE RELEASE
NEWS RELEASE
March 26, 2013
For More Information, contact:
Luther Strange
Joy Patterson (334) 242-7491
Alabama Attorney General
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AG STRANGE LEADS NATIONAL EFFORT IN SUPPORT OF BROADER
RELIGIOUS EXCEPTION TO OBAMACARE CONTRACEPTION MANDATE
(MONTGOMERY) – Alabama Attorney General Luther Strange is leading a
national effort to convince the U.S. Department of Health and Human Services to adopt
broader religious exceptions to the HHS mandate that all businesses and non-profit
organizations purchase insurance for contraception and sterilization. Attorney General
Strange wrote a letter sent today to Secretary Kathleen Sebelius that also was signed by
twelve other state attorneys general.
To implement the Affordable Care Act, HHS mandated last year that all
employers and insurance companies – including those with religious and conscience-
based objections – would have to provide coverage for all FDA-approved contraceptive
methods and sterilization procedures, including the “morning-after pill” and the
“week-after pill.” Today’s letter is a public comment on proposed regulations to
address faith and conscience-based objections that religious organizations and business
owners raised to the original mandate.
Attorney General Strange explained why he led the effort as follows: “The
people of Alabama care strongly about the right of conscience and the freedom of
religion, and we have enshrined those rights in our Constitution. Whatever we
personally may think about contraception and abortion-inducing drugs, we can all
agree that the government should not be in the business of forcing people to violate
their religious convictions.”
The comment letter argues that the proposed regulations do not comply with the
Religious Freedom Restoration Act. RFRA “cuts across all federal regulations” and
requires “the federal government to use the least restrictive means to accomplish a
compelling governmental interest.” The letter states that “RFRA requires [HHS] to
adopt the broadest possible religious exceptions to the contraception mandate.”
The comment letter identifies several problems with the proposed regulations
under RFRA. The regulations give only some nonprofit religious organizations an
exception to the mandate, even though there is no compelling reason to treat nonprofit
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religious organizations differently. For nonprofit organizations not covered by the
exception, the regulations require insurance companies to provide “free” contraception
coverage. The letter describes that plan as a “shell game” and “accounting gimmick.”
“We all know that insurance companies do not provide anything for free; the employers
are still going to be paying for these services through increased premiums or otherwise
even if the insurance company technically covers those products through a separate
‘free’ policy.” Lastly, the regulations provide no exception to the contraception
mandate for for-profit business owners who object on conscience grounds.
Attorney General Strange noted: “The issue is simple: Either Alabamians and
Americans around the country will be allowed to exercise their religious freedom to say
‘no’ to something they disagree with, or they won’t. We hope the Obama
Administration will listen, and adopt a position that supports our first freedom rather
than undermines it.”
Attorneys general from the following states and territories signed onto the letter:
Alabama, Colorado, Georgia, Florida, Idaho, Kansas, Montana, Nebraska, Ohio,
Oklahoma, South Carolina, Texas and West Virginia.
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State Attorneys General
A Communication from the Chief Legal Officers
of the Following States:
Alabama * Colorado * Florida * Georgia * Idaho * Kansas * Montana
Nebraska * Ohio * Oklahoma * South Carolina * Texas * West Virginia
March 26, 2013
BY ELECTRONIC DELIVERY AND FEDERAL EXPRESS
Secretary Kathleen Sebelius
Centers for Medicare & Medicaid Services,
Department of Health and Human Services,
Attention: CMS-9968-P
Mail Stop C4-26-05
7500 Security Boulevard
Baltimore, MD 21244-1850
Dear Secretary Sebelius:
Thank you for the opportunity to comment on your proposed amendments to RIN 0938-
AR42, Coverage of Certain Preventive Services under the Affordable Care Act.
The proposed regulations selectively address faith and conscience-based objections to a
government mandate that requires businesses and nonprofits to pay for insurance coverage for
contraception and other reproductive services. They allow a limited few religious nonprofits,
such as houses of worship, to avoid the “HHS mandate” altogether. The proposed regulations
purport to allow a few other religious-affiliated nonprofits, such as Catholic Charities, to avoid
paying directly for these reproductive services by requiring the insurance companies that cover
the organizations’ employees to provide “free” coverage. The proposed regulations provide no
exception to the HHS mandate for for-profit business owners who object on conscience grounds.
We believe the proposed regulations do not remedy the legal infirmities in the original
HHS mandate. As you know, the Religious Freedom Restoration Act or “RFRA,” 42 U.S.C.
ß 2000bb, requires the federal government to use the least restrictive means to accomplish a
compelling governmental interest. RFRA cuts across all federal regulations and requires “strict
scrutiny” of all actions of the federal government that burden the exercise of religion. We see
three problems with the proposed regulations under RFRA.
First, there is no compelling reason to refuse to extend to all religious-affiliated
nonprofits the exception that is available to houses of worship. RFRA requires the federal
government to demonstrate that the compelling-interest test is satisfied through application of the
challenged law “‘to the person’ – the particular claimant whose sincere exercise of religion is
being substantially burdened.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
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U.S. 418, 430-31 (2006). The government must show with particularity how its interest “would
be adversely affected by granting an exemption.” Id. at 431 (internal quotations omitted). The
Supreme Court has held that this test is very difficult to meet when the government allows an
exception to one group or person but not to others. Id. This is so because allowing an exception
for one group “fatally undermines” the argument that the government has a compelling interest
in denying others the same or similar exception. Id. at 434. The proposed regulations allow an
absolute exception for some religious nonprofits and deny that exception to other groups without
any compelling reason for distinguishing between the two groups.
Second, the purported accommodation to allow certain nonprofits to shift costs onto
insurance companies appears to be a shell game that does not alleviate the burden on the exercise
of religion. We all know that insurance companies do not provide anything for free; the
employers are still going to be paying for these services through increased premiums or
otherwise even if the insurance company technically covers those products through a separate
“free” policy. You have argued that insurers will gladly provide this coverage for free because
overall health costs are purportedly reduced when an insured has access to free reproductive
services. This proposition strikes us as highly unlikely. If insurers could reduce their costs by
providing these services for free, then insurance companies would already be providing them for
free; the entire regulation at issue would be unnecessary. The truth of the matter is that these
services, like everything else, costs money. Just as they do now, insurance companies will recoup
their increased costs by shifting the costs back to employers. The purported accommodation
amounts to little more than an accounting gimmick.
Third, the government must provide a meaningful exception to the HHS mandate for for-
profit business owners who object on conscience grounds, but the proposed regulations fail to
address for-profit organizations at all. That failure is a particular problem under RFRA if one
assumes that you are correct that your proposed “accommodation” for nonprofits would be
costless. If you are correct that insurance companies will actually benefit by providing insurance
coverage for free (which seems highly doubtful as explained above), then there is no compelling
reason for you to limit this purported accommodation to nonprofits. Under your logic, insurers
would benefit even more if insurance companies were required to provide insurance coverage for
these services for free to the employees of all businesses, including the employees of for-profit
businesses whose owners object to the HHS mandate. To be clear, we believe that the proposed
cost-shifting “accommodation” does not satisfy RFRA and that appropriate religious exemptions
must be provided for nonprofits and for-profits. But, even under your own logic, the proposed
regulations would not be the least restrictive means of providing coverage for these services to
the employees of for-profit businesses.
We fear that the HHS mandate is the first of many regulations under the Affordable Care
Act that will conflict with legal protections for religious liberty and the right of conscience. We
respectfully submit that RFRA requires you to adopt the broadest possible religious exceptions to
the HHS mandate.
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Respectfully submitted,
Jon C. Bruning
Luther Strange
Nebraska Attorney General
Alabama Attorney General
Mike DeWine
Ohio Attorney General
John W. Suthers
Colorado Attorney General
Scott Pruitt
Oklahoma Attorney General
Pam Bondi
Florida Attorney General
Alan Wilson
South Carolina Attorney General
Samuel S. Olens
Georgia Attorney General
Greg Abbott
Texas Attorney General
Lawrence G. Wasden
Idaho Attorney General
Patrick Morrisey
West Virginia Attorney General
Derek Schmidt
Kansas Attorney General
Timothy C. Fox
Montana Attorney General
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