CHARLOTTE, N.C. - The Department of Health and Human Services' mandate that would force many religious institutions to provide free contraceptives against their consciences is illegal, former U.S. Rep. Bart Stupak said Sept. 4 during a meeting of pro-life Democrats.

During debate over the legislation that would become the 2010 Patient Protection and Affordable Care Act, Stupak negotiated an executive order with the Obama administration that guaranteed the act would not violate the Hyde Amendment, which forbids federal funding for any abortion or abortion-related care. The HHS mandate violates that executive order, as well as the Hyde Amendment itself, Stupak believes.

"Specifically, as written, it violates the law and violates the executive order," said Stupak, who decided not to seek re-election after passage of the health reform law.

Last year, as her agency set forth the nuts and bolts of the Affordable Care Act, HHS Secretary Kathleen Sebelius declared that nearly all employers must include free contraception and sterilization services in their health insurance policies.

HHS drafted a narrow exemption for religious employers who object to providing contraception, sterilization and abortion-inducing drugs as mandated, but to be exempted they must serve and hire people primarily of their own faith. Catholic schools, hospitals and charitable organizations would not qualify under that standard; they would either have to provide such coverage in violation of Catholic teaching, pay steep annual fines in order to keep providing health insurance to their employees and students, or stop providing health insurance entirely.

Stupak said he was "bewildered" and "perplexed" by the HHS mandate when it was announced last summer. Religious organizations led by the U.S. Conference of Catholic Bishops bristled, and under the vocal leadership of Cardinal Timothy Dolan of New York, conference president, they fought back. They denounced the move at first, asking the Obama administration to back off the HHS mandate. Belmont Abbey College in North Carolina was one of the first to file a federal lawsuit challenging the constitutionality of the HHS mandate. More than 20 similar lawsuits are now in the works.

In response to the criticism, President Barack Obama announced a compromise, giving Catholic institutions a year's reprieve from having to comply with the HHS mandate and allowing them to pass the coverage costs onto their insurance carriers rather than pay for it directly.

But the bishops and other religious institutions argued that the mandate itself was unconstitutional because it violates the First Amendment protection for religious freedom.

The Affordable Care Act was upheld by the U.S. Supreme Court earlier this year, but the court did not review the HHS mandate or other details of the act. One justice even hinted in her written opinion that the HHS mandate, if challenged in federal court, is at risk of being ruled unconstitutional.

Stupak said he agrees with the public outcry over the HHS mandate and its assault on religious organizations' freedom to not offer health insurance coverage for services they consider immoral. He smiled when he was asked about the court battles now getting under way, and he said the Catholic bishops are absolutely right to challenge the HHS mandate. He also noted, without giving specifics, that there have been some moves by the Obama administration to modify the mandate. Dolan and the USCCB staff have asked to meet with administration officials to work out a fix, but those efforts have so far been unsuccessful.

Stupak hinted it is in the Obama administration's best interest to bend on this controversial issue, because the HHS mandate could be overturned in court.

"We don't want this stuck in the courts, being challenged for years," he said.