Academic journal article Issues in Law & Medicine

Dignum et Justum Est: Obamacare and Travail of the Little Sisters

Academic journal article Issues in Law & Medicine

Dignum et Justum Est: Obamacare and Travail of the Little Sisters

Article excerpt

The Affordable Care Act, signed into law by President Obama on March 28, 2012, followed a week later by amendments to the Health Care and Education Reconciliation Act of 2010, constitute what has become known as the "Affordable Care Act" (ACA),1 popularly termed "Obamacare." Section 1001 of the ACA amends the Public Health Service Act of 2012 to add minimum coverage provisions for group and individual health insurance plans, including, "with respect to women, such additional preventive care and screenings not comprehensive guidelines supported by the Health Resources and Services Administration [HRSA]...," an agency of the Department of Health and Human Services (HHS).2

Thereby, the majority of Congress and our President essentially delegated to HRSA, an unelected administrative bureau, the authority for determining "with respect to women" the "additional preventive care and screenings" that must be covered by health plans according to ACA mandate. On August 1,2011, HRSA adopted and released guidelines for ACA required coverage by group health plans and health insurance issuers beginning on or after August 1, 2012, for "women's preventive health services" (italics added).3 Note well the change in diction from "preventive care and screenings," designated by law, to "preventive services," as defined by the HRSA. According with "HRSA Guidelines," AGA required preventive health services for "women with reproductive capacity" without cost sharing include "contraceptive methods" and "sterilization."4

Simultaneous with this release, on August 1,2011, the U.S. Departments of Health and Human Services, Labor and Treasury, which are jointly responsible for administrating and enforcing the ACA, provided authority to exempt from the requirement to cover contraceptive services the group health plans of nonprofit "religious employers," such as "churches, their integrated auxiliaries, and conventions or associations of churches," as well as "the exclusively religious activities of any religious order," whose primary "purpose is inculcation of religious values" and primarily employs and serves persons "sharing its religious tenets."5 When final regulations were issued on February 10,2012, a "temporary safe harbor from enforcement of the contraceptive coverage requirement" until August 1, 2013, was allowed for the group health plans of "certain nonprofit organizations with religious objections to contraceptive coverage."6 Having published the proposed rules on February 15, 2012, the Departments invited public comment.

This communication reviews the response of the Little Sisters of the Poor ("Little Sisters"), an international order of consecrated nuns whose mission is to serve the elderly poor, later joined by other respondents, then tracks the evolution of ACA mandated rules and regulations, the implications of enforcement and the ethical challenge. Specifically this is not a law review. The query is, "What's all the hub-bub?" not how matters will be solved. Morally, for the analytic reader, this will be within an ethical framework. At law, this will follow Court decision.

The Little Sisters Protest

In compliance with Catholic doctrine which holds that there is objective moral order knowable by the intellect and that certain intrinsically evil actions, such as direct sterilization, contraception and induced abortion, are never morally justifiable regardless of the circumstances,7 the Little Sisters on March 1, 2012, issued a statement that with good conscience they can not "directly provide or collaborate with the provisions of services that conflict with Catholic teaching,..." when providing health insurance benefits for employees of their homes for the aged.8 Along with the Departments of Labor and Treasury, HHS next published an advance notice nearly a year later on February 6, 2013, proposing rules that might achieve their goals of "broad access" to contraceptive services without cost sharing for employees and students of nonprofit religious "eligible organizations" with religious objections to providing coverage for these services in their health care plans. …

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