For the past four years, the Obama administration and its friends on the Left were careful to claim that they still strongly support religious liberty while arguing that Hobby Lobby’s Green family, Conestoga Wood Specialties’ Hahn family, and others like them must lose. Principally, they contended, religious liberty protections could not be applied to Hobby Lobby because (1) It is a for-profit corporation, (2) It isn’t a church (and thus not a true “religious employer,” and (3) It is wrong on the science—Plan B, a copper intrauterine device, et cetera, they claimed, do not cause abortions. They implied, if not claimed outright, that they would surely support religious freedom in another case, but Hobby Lobby was unworthy to claim its protections.
The State of California is now calling their bluff. California’s Department of Managed Health Care has ordered all insurance plans in the state to immediately begin covering elective abortion. Not Plan B. Not contraceptives. Elective surgical dismemberment abortion.
At the insistence of the American Civil Liberties Union, the DMHC concluded that a 40-year-old state law requiring health plans to cover “basic health services” had been misinterpreted all these decades. Every plan in the state was immediately ordered, effective August 22, to cover elective abortion. California had not even applied this test to its own state employee health plans (which covered only “medically necessary” abortions). But this novel reading was nevertheless quietly imposed on every plan in the state by fiat.
The news has slowly leaked out as insurers grappling with this change have begun quietly informing employers of this sudden change in the terms of their policy. This is how Kaiser Permanente broke the news to one California church that its insurance policy for its pastors and staff would now include elective abortion coverage:
I want to formally share with you that on August 22, 2014, the Department of Managed Health Care (DMHC) notified Kaiser Permanente and other affected health plans in writing regarding group contracts that exclude ‘voluntary termination of pregnancy.’
This letter made clear that the DMHC considered health care services related to the termination of pregnancies – whether or not a voluntary termination – a medically necessary basic health care service for which all health care services plans must provide coverage under the Knox-Keene Health Care Service Plan Act. You may recall that at the request of some employer groups with religious affiliations, Kaiser Permanente submitted a regulatory filing in May 2012 properly notifying the DMHC of a benefit plan option that excluded coverage of voluntary terminations of pregnancies. The DMHC did not object to this filing, permitting Kaiser Permanente to offer such a coverage contract to large group purchasers that requested it. The DMHC acknowledged that it previously permitted these contract exclusions, but now is requiring health care service plans to provide coverage of all terminations of pregnancies, effective immediately. To that end, the DMHC requires Kaiser Permanente and similar health care service plans to initiate steps to modify their plan contracts accordingly.
Effective August 22, Kaiser Permanente will comply with this regulatory mandate.
Churches Can Exclude Chemical Baby Killing, But Not Surgical
Several other California churches have received similar notices from their insurers, and others will follow. While California (like the U.S. Department of Health and Human Services, or HHS) exempts churches from its contraceptive mandate, there is no exception to this bureaucratic abortion mandate. This leaves California churches in the illogical and impossible position of being free to exclude contraceptives from their health plan for reasons of religious conscience but required to provide their employees with abortion coverage.
This California mandate is in blatant violation of federal law that specifically prohibits California from discriminating against health care plans on the basis that they do not cover abortion. Alliance Defending Freedom and Life Legal Defense Foundation have filed administrative complaints with the HHS Office of Civil Rights (which oversees this federal law) on behalf of individual employees and seven California churches forced into abortion coverage in violation of their conscience.
What will be the administration and the Left’s response to this unprecedented attack on religious liberty? If they couldn’t stand with Hobby Lobby because it was a for-profit business, not a church, and because they thought its conscience concern was misplaced on the abortifacient nature of Plan B, will they now demand religious liberty for churches forced to cover elective abortion? If not now for religious liberty, when?
Do the administration and the left-wing commentariat continue to see any life in the First Amendment’s religious liberty protections at all? The Left’s response to California’s abortion mandate will reveal whether their claims of respect for religious liberty in the Hobby Lobby case were serious or mere fig leafs for an even more dismal view of religious liberty than they have let on.