Lost in the debate about the Department of Health and Human Services’ (HHS) mandate for employers to provide women’s well-care at no cost to employees is that the mandate violated many Americans’ religious liberties, not just those of religious organizations.

The mandate for employers took effect Aug. 1 – but not for one Colorado company, which is suing HHS secretary Kathleen Sebelius to block the mandate. A federal judge has given the company at least a temporary reprieve from complying with the mandate, and the notion that the mandate violates the First Amendment will get its day in court.

It’s long past time for the administration to abandon this divisive regulation. Click here to ask HHS Secretary Kathleen Sebelius to adjust the department’s rule to permit waivers for First Amendment reasons.

Wednesday, Aug. 1, marked the implementation of what’s become known as HHS’s contraception mandate. It requires health-benefit plans to include an array of women’s well-care services – and many of them, including mammograms, breast-pump rentals and domestic-violence counseling, are not the least bit controversial. We would argue that it’s not wise to exempt these services from the cost-sharing requirements common in benefit plans, but that aspect of the mandate is outside the scope of our calling.

The mandate also has moral implications for pro-life Americans, though, because it includes coverage for drugs that cause a type of abortion by preventing the implantation of a fertilized egg in its mother’s womb. The most notable part of the requirement, of course, is the requirement that the benefit plans cover prescription contraceptives without a deductible or other cost-sharing requirement. This mandate now applies to all employee benefit plans except for those of houses of worship. Church-related organizations, such as schools and colleges, hospitals and social-service agencies, are not exempt but have been given an additional year to comply – as though the University of Notre Dame, for example, would be able to “get over” its moral objection to contraceptives in a year.

CMC considers contraception to be a matter of individual conscience. We believe that any business owner who doesn’t personally object to contraception should offer it for his or her employees. But contraception certainly goes against the teachings of the Roman Catholic church, and we know of many Protestants who believe similarly. Business owners with those convictions should be able to decline to offer the services they find objectionable from their benefit plans, and should not be subject to a government mandate to do what their consciences tell them is impermissible.  

Hercules Industries, an HVAC supply distribution company based in Denver, Colo., is owned by the Newland family, Roman Catholics who have never offered contraception coverage to their employees and don’t intend to start now. They view the HHS mandate, correctly, as an infringement upon their right to practice their religious faith. And with the help of the Alliance Defending Freedom, a legal ministry formerly known as the Alliance Defense Fund, the company sued in federal court to block the implementation of the mandate. The company’s benefit year begins Nov. 1, so the timing of the mandate impacts them sooner than companies who use a more common calendar year for their benefit year.

According to the Heritage Foundation Hercules, which has more than 250 employees, faced about $10 million in fines annually if it had declined to cover contraceptives in its employee benefit plans, and more than $500,000 in fines if it had dropped its benefit plan altogether. But at least for now, the company can follow its collective conscience without interference from the government.

John L. Kane of the U.S. District Court for the District of Colorado, in granting the injunction July 27, said the government’s arguments for the mandate “are countered, and indeed outweighed, by the public interest in the free exercise of religion. . .the public interest favors entry of an injunction in this case.”  The injunction applies only to Hercules Industries. No date has been set for trial in the case. It’s the first of many suits challenging the mandate to be granted a hearing. Two others have been dismissed in favor of the government.

This isn’t a complicated issue. A government sworn to uphold a constitutional provision that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” has no business telling a church-operated business, a private enterprise or anyone else that they must provide a service their religion prohibits. The First Amendment guarantee of freedom religion is far more than “believe what you want” or “worship as you please.” It also expressly protects the practice of one’s faith. Jews, for example, believe in circumcision of male babies at the age of seven days. A First Amendment that permits belief in circumcision but forbids the act, as a court in Germany recently did, does not protect the free expression of religion at all. It’s inarguable that this mandate prohibits organizations of all types with a conscience-based objection to contraception from exercising their faith. The only question remaining is whether we’ll acknowledge those beliefs as valid or trample them in the name of “access to contraception.”

Don’t be fooled by apologists for the mandate who call opposition to it a “war on contraception,” a “war on women” or something else. Declining to pay for someone else to obtain a product or service does not restrict access to it. A company that will not pay for its female employees’ birth-control pills is not restricting access to contraception, any more than the same company declining to stock a free lunch buffet in the break room is restricting employees’ access to food. Employees choose to participate in an employer’s benefit plan on a take-it-or-leave-it basis. There is no sense in which an employee earns a specific benefit that is not part of the employer’s plan simply by making contributions to the plan each pay period.

The only solution to the constitutional crisis the administration and Congress has created is to drop the mandate entirely – or, at the very least, permit any business for which contraception or abortion-inducing drugs to easily obtain a waiver for the mandate. This entire issue has been an embarrassing one for the administration, and it would be well-advised to find a graceful way out, such as a religious-liberties waiver, to permit any employer who objects to contraception or abortion-inducing drugs to drop them from the company’s plan. Doing so now, before the Hercules Industries case goes to trial, would help the administration avoid an embarrassing defeat in federal court. 

Click here to ask HHS Secretary Kathleen Sebelius to adjust the department’s rule to permit waivers for First Amendment reasons.