"The OTHER Mandate": Compliance, Exemptions, or Civil Disobedience? HHS Mandated Employer Health Insurance Requirements Begin August 1, 2012


In its Thursday decision, the Supreme Court ruled by a narrow 5-4 majority that the individual mandate requiring 40 million uninsured citizens to either purchase health insurance or pay a large penalty was a constitutional exercise of Congress' taxing authority. (Five justices rejected the broader argument that the individual mandate was a constitutional exercise of Congress' power under the Commerce Clause or the Necessary and Proper Clause of the Constitution.)

This decision leaves in place another mandate that many religious employers have objected to on religious grounds. On January 20, 2012, the U.S. Department of Health and Human Services finalized regulations ("ACA Regs") that require almost all employers with more than 50 employees to offer health insurance plans that will fully cover reproductive "preventive health services." Covered services include sterilization (including surgical procedures) and the contraceptive drugs known as Plan B (the "morning after" pill) and ulipristal or ella (the "week after" pill), which are considered to be abortifacients or abortion-inducing medicines. The requirements imposed by these ACA Regs are sometimes referred to as the "HHS Mandate".

The HHS Mandate has already led two religious universities to cease offering health insurance to their students and more than fifty employers to challenge the regulations under the First Amendment's free exercise of religion clause, the federal Religious Freedom Restoration Act, and other legal grounds.

However, no court will rule on the constitutionality of the HHS Mandate before employers are required by law to comply with the ACA Regs. Faith-based organizations and businesses must therefore decide in the next month whether they are going to comply with these ACA Regs, seek to qualify for one of the limited exemptions available under the ACA Regs, or refuse to comply (and therefore prepare for the legal consequences of such noncompliance, such as facing a government enforcement action).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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