Professor O. Carter Snead, Professor of Law and the William P. and Hazel B. White Director of the Center for Ethics and Culture, gave a talk entitled “The HHS Mandate and Religious Freedom” on September 7, 2012 at North Dining Hall. Part of the “Professors for Lunch” series, the talk was hosted by Notre Dame’s Tocqueville Program for Inquiry Into Religion and American Public Life.
Professor Snead offered two main purposes for his talk. The first was to give an account of the issues surrounding the HHS mandate and to describe the subsequent events. The second was to share his own judgments and concerns about the mandate.
He began with the history of the mandate, stating that the issue was first raised with the passage of the Affordable Care Act on March 29, 2010. Under the Affordable Care Act, certain preventative services would be required to be provided without cost-sharing. The details of this responsibility were delegated to a different agency.
The Departments of Health and Human Services, Treasury, and Labor then specified that the mandate would include women’s services and gave the power to enumerate these specific services to the Health Resources and Services Administration, which then asked the Institute of Medicine to decide what would be included.
On August 1, 2011, the Health Resources and Services Administration came out with a statement saying that these preventive measures included all FDA approved contraception, sterilization, and patient education and counseling. Snead noted that this is when Notre Dame first entered the scene as having a stake in this decision.
Snead outlined the two main objections to this mandate, the pro-life objection and the religious liberty objection. He said he planned to focus on the second, but he would address the first briefly. The main pro-life objection is that some approved drugs can kill the developing human embryo before or after implantation, specifically the drug EllaOne.
The second objection that Snead discussed was an assertion that forcing companies to provide contraception for their employees was a violation of religious liberty for those institutions and companies which have religiously-based objections to providing preventative services.
The final interim rule did propose an exemption on a religious basis, but Snead noted that “there has never been an exemption as narrow as this” on a federal level. This means that most Catholic institutions, including Notre Dame are not included in this exemption.
Snead talked about the negative reaction to this mandate and particularly its bipartisan nature. This push led to the announcement of a ‘compromise’ that shifted the burden of paying for contraception from the employers to the insurers.
However, this compromise did not address the concerns of self-insured organizations like Notre Dame. No specific plan was given to address this concern, prompting Notre Dame to file a lawsuit against the government.
Snead went on to address reasons for serious concern, including an unprecedented violation of religious liberties and conscience. He explained that religious freedom “is not simply the freedom to worship, but also the freedom to live, act, and organize your affairs with integrity.”
Another criticism that Sneed brought forth is the belief that this mandate is a gravely flawed form of governance and irresponsible social engineering. He noted that no other alternatives were explored that could have lifted the burden from those objecting on a religious basis.
Looking forward, Snead was asked what would happen if the mandate was not lifted. He responded with an analogy that compared a hypothetical situation, in which the government were to ban celebrating Mass on Wednesdays, to the enforcement of the HHS mandate. Banning the celebration of Mass would be an intrusion of religious freedom, but Catholics would technically be able to live with the legislation. In the same way, if the HHS mandate is enforced, Notre Dame would find a way to live with the mandate in accord with our consciences.
When asked what he hoped Notre Dame students had gotten out of the lecture, Snead replied, “I hope that the students now have a better understanding of the normative, legal, and public policy dimensions of this issue, and a clearer sense of what is at stake, particularly from the perspective of institutions like Notre Dame.”
The second part of this discussion and continuation of the conversation will be on Friday, September 21 at noon in the North Dining Hall. The topic “Why is ND suing the Obama Administration to protect religious freedom? And should it be doing so?” will be discussed by a faculty panel.
Erin Stoyell-Mulholland is a sophomore business major who lives in fear of her loft. When she is not sleeping on the couch, she can be found organizing dance parties throughout her dorm. Contact her at firstname.lastname@example.org.