Ethics & Public Policy Center

A Clash of Conscience

Published in National Review Online on January 30, 2012



The decision last week by Health and Human Services Secretary Kathleen Sebelius to reject the appeals of scores of religious leaders and retain a very narrow “religious” exemption from Obamacare’s so-called contraception mandate has ignited an uproar among Catholic leaders, as well it should—because it’s hard to fathom a government dictate more offensive than this one.

Here’s how we got where we are: Obamacare includes within its massive delegation of power to the federal government the authority to define what constitutes “preventive services” that must be covered by all health-insurance plans sold and purchased in the United States, including plans sponsored by employers. Services defined by HHS as preventive for purposes of this provision are required under the new law to be covered by the insurer or employer with no charge to the insurance plan’s enrollees.

Last August, in the course of writing a rule that would determine preventive health services for women, HHS decided that free contraception and sterilization services are a must. As a practical matter, that means all health-insurance plans sold in the United States in the very near future will include full coverage of products that terminate pregnancies, since some products classified by the FDA as contraceptives—and thus covered under the HHS definition—also act as abortifacients. While it is true that many insurance plans cover such products today, that’s mainly been the choice of the insurers and employers sponsoring the plans. HHS has now made such coverage obligatory nationwide, thus forcing tens of millions of pro-life Americans to pay for “services” with their health-insurance premiums that they find morally objectionable. (Grandfathered plans are exempt from this and other Obamacare rules, but the number qualifying for grandfathered status is expected to decline precipitously in the next couple of years.)

Bad as all that is, it gets worse. Not only must Catholics who work for non-Catholic employers pay for such products with their premiums, HHS also wants religious employers to cover such products in their health plans. Knowing that Catholic leaders and others would strongly object to this requirement, HHS included in the regulation issued last August a narrow exemption from this requirement for employers that are basically houses of worship. Much larger religiously affiliated institutions, such as Catholic universities, hospitals, and charitable enterprises, do not fit within the HHS exemption.

Not surprisingly, Catholic leaders were more than alarmed by the promulgation of this rule and have spent the time since its publication imploring the Obama White House and HHS to reverse course and loosen the exemption definition so that the full array of Catholic institutions and social-service agencies could get out from under this onerous and pernicious requirement. Among the more prominent groups that have weighed in on this are Catholic Charities USA, the University of Notre Dame, and the network of Catholic hospitals that serve millions of U.S. patients every year.

This is not exactly a who’s-who list of the Catholic Right. If ever there were a group of Catholic institutions to which you would think that the Obama administration would want to be accommodating, this would be it.

And so, what was the administration’s reaction to the pleadings of these friendly leaders? Basically, the back of the hand. Last Friday, Secretary Sebelius announced that religious organizations that do not fit within the previously stated exemption criteria will have only one additional year to comply with the regulation’s requirements.

On one level, this was a truly stunning decision. Everything the administration has been doing in recent months has been political, with reelection plainly the primary motivation. But on the surface, this looks to be anything but a smart political move. With one decision, the Obama White House has made it all but impossible to sustain a serious Catholic argument in its favor. The veneer of religious tolerance, so carefully cultivated by Obama in the 2008 campaign, has now been completely stripped away.

On another level, however, there’s nothing at all surprising about what has transpired. Indeed, with Obamacare, it was inevitable—only a matter of time.

The central purpose of Obamacare—and the reason it was and is so strenuously opposed by so many Americans—is to transfer all of the critical decisions about how American health care operates to the federal government. Despite what the president contends, it is a federal takeover. The federal bureaucracy is now in the driver’s seat.

And, with the federal government now calling all of the shots, it is a foregone conclusion that a decidedly secularist and utilitarian point of view will be pervasive in everything that is done. It is simply beyond the capacity of the modern federal government to even consider arguments questioning the wisdom of governmental policies promoting free and abundant contraception. Indeed, it is an article of faith in the modern bureaucratic context that pushing such “prevention” measures onto the American public is one more step on the long march to a more just and humane society.

This is the environment in which we live. The hard truth is that the federal government cannot be trusted today with these kinds of decisions, and there’s no prospect of that changing anytime soon. That’s a big reason why Obamacare should never have been allowed to pass in the first place. Just the sight of Catholic leaders’ being forced to go begging before federal officials ought to be enough to convince most Americans that handing over so much power over such sensitive matters to the federal government was a terrible, terrible mistake.

If the Sebelius decision is allowed to stand, large Catholic institutions all over the country will be forced to stop offering health coverage to their workers, because continuing to do so will be incompatible with their mission. And when they drop that coverage, they will be forced by Obamacare to pay huge fines to the federal government ($2,000 per worker at the outset). For a Catholic institution with 5,000 employees, that’s $10 million that won’t go toward helping the poor, taking care of patients, or educating future leaders.

It is possible that the Obama administration will pull a political stunt later this year and broaden the exemption to curry favor with some gullible voters just before the election. But even if that were to happen, the real lesson of this episode should not be lost on anyone. Obamacare has handed over immense power to a federal government that is essentially hostile to religious sentiments. That’s a very dangerous state of affairs. Job number one must be to reverse course and replace Obamacare with a program more consistent with our Constitution and values.

James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.

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