ACLJ: Obamacare Contraceptives Rule ‘Blatantly Unconstitutional’ -- 70,000 Sign Petition to Reverse Reg

By Elizabeth Harrington | February 22, 2012 | 5:31 PM EST

HHS Secretary Kathleen Sebelius and President Barack Obama at the White House on Feb. 10, 2012. (AP Photo/Susan Walsh)

( – The American Center for Law and Justice (ACLJ) and almost 70,000 Americans are urging the Department of Health and Human Services (HHS) to reverse its controversial mandate that requires all health insurers to offer sterilizations and contraceptives, including those that induce abortion, free of charge because it potentially is a violation of religious liberty under the First Amendment.

Along with the petition, the ACLJ sent a legal analysis to HHS Secretary Kathleen Sebelius on Feb. 21 that finds the mandate “blatantly unconstitutional.”   The legal group says the regulation violates the First Amendment and the Religious Freedom Restoration Act (RFRA), which protects individuals and institutions’ right to freely exercise their religion against burdensome laws.

Thus far, 68,794 people have signed on to the “Defend Religious Liberty – Stop Forced Abortion Pill Coverage” petition that states, “The Obama Administration has launched an all-out assault on people of faith.”

“These regulations clearly violate religious liberty and the conscience rights of millions of Americans,” said Jay Sekulow, chief counsel of the ACLJ, the conservative alternative to the American Civil Liberties Union (ACLU), in a press release.

As part of Obamacare, the HHS rule was finalized on Jan. 20, sparking nationwide opposition from religious organizations, most notably the U.S. Conference of Catholic Bishops (USCCB), and at least 158 members of Congress.

President Obama then announced an “accommodation” to the mandate on Feb. 10, stating,   “Today, we’ve reached a decision on how to move forward.  Under the rule, women will still have access to free preventive care that includes contraceptive services -- no matter where they work.  So that core principle remains.  But if a woman’s employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company -- not the hospital, not the charity -- will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.”

This frame grab from video shows a box of Plan B morning after pill. (AP Photo)

With this apparent accommodation, all health insurers will have to offer sterilizations and FDA-approved contraceptives, including those that induce abortion, such as the drug “ella.” Individuals or employers who object to those services for religious reasons will not pay for them directly for other people, but they will indirectly subsidize them through their health insurance premiums.

The ACLJ says the compromise is “smoke and mirrors,” and religious institutions will still directly pay for services they find unconscionable.

“The promised ‘accommodation’ is, in effect, a smoke and mirrors game that shifts the burden from employers to violate their conscience by paying for contraceptives directly to making them pay ‘indirectly’ through insurance providers,” states the group’s legal analysis, written by Sekulow.  “There is no choice.”

“If an employer provides insurance coverage for its employees, the only option is to pay an insurer that provides contraceptive coverage,” Sekulow writes.  “Thus, employers still directly fund contraceptive coverage in violation of their religious beliefs.”

Moreover, the ACLJ said the final regulation featured no such “accommodation” language when it was published in the Federal Register on Feb. 14.

Catholics attending Mass. (AP Photo.)

The legal group further argued in its analysis that the regulation violates the Free Exercise Clause of the First Amendment, and is “blatantly unconstitutional” in regards to its religious-employer exemption.

HHS offers a very narrow exemption for religious institutions whose primary mission is to inculcate religious values, and that primarily employs and serves people of its own faith.  The exemption, therefore, does not apply to Catholic hospitals or charities.

“The ‘religious employer’ exemption puts into the hands of anonymous HHS officials the power to determine which activities of a church or religious group are truly ‘religious,’ and thus deserving of protection, and which are merely ‘secular,’ and thus subject to regulation,” states the ACLJ analysis.  “This is blatantly unconstitutional.”

The HHS rule will go into effect on Aug. 1 and gives religious institutions an additional year to comply.  If organizations do not abide by the mandate they will face a fine that equals $40,000 a year for a company with 50 employees.

“By making religious employers pay this fine if they do not wish to violate their religious beliefs, the government has placed a substantial burden on their free exercise,” said the ACLJ.  “At the core of our First Amendment is the right to freedom of religion.”

“Employers are not free when they are forced to pay a fine for practicing what is at the very core of their beliefs,” said the group’s statement.