The woman replacing Kathleen Sebelius as the head of the Health and Human Services (HHS) has been spared questions related to the HHS mandate on contraceptives and abortion-causing drugs at her hearing. The hope, by many, was that some opinion on the matter would be offered – either for or against. In subsequent information provided by Sylvia Matthews Burwell, she states that the government should work toward prevention (of pregnancies) in any way that it can. While this does not come out in favor of the HHS mandate for contraceptives, it points to a grey area that is neither for the measure nor against it.
By not coming out in favor of the HHS mandate, and therefore supporting the government-mandated health care measure for all employers to provide free access to contraceptives, Ms Burwell may be leaving it open to interpretation as to which employers must abide by the mandate. This would bode well for religious employers, who have been fighting against the mandate from its inception several years ago, arguing that by forcing them to supply access to contraceptives, the U.S. Government is violating their First Amendment rights to freely practice their religious beliefs, which include the belief that contraceptives and abortions are sinful in nature.
However, by not coming out against the HHS mandate, Ms Burwell may be allowing for the current standard interpretation on what is and is not a “religious employer”. Obviously a church is a religious employer, but is a convent or a business run by a Christian family that is running their business based on their Christian principles? The definition of what is and is not a religious employer, and therefore which employers must abide by the law, has remained unclear since the HHS mandate was introduced. And if the person in charge of the HHS, and therefore the person responsible for how the mandate is administered, is unclear about who must follow the mandate, the lawsuits against the HHS and the Government will continue until it is clearly defined who the mandate applies to.
The hope is that the grey area will become more black and white, and therefore the line that defines what a religious employer is and is not will become apparent. And once the Government decides to allow religious employers to choose to exercise their First Amendment rights, those employers will be free to run their business based on their beliefs, and not be subject to laws requiring them to violate those same beliefs.