Ethics & Public Policy Center

A New Round of Intolerance

Published in National Review Online on February 1, 2013



As Kathryn noted, the Department of Health and Human Services today released a notice of proposed rulemaking on Obamacare’s preventive services rule–the rule that among other things requires all employers, including those with religious objections, to provide coverage for abortive and contraceptive drugs and procedures with their employees’ health coverage.

This is basically just the next step in the process of formally issuing a revision to a rule, and although there was some talk in the last 24 hours about the possibility that this revised rule would offer relief to employers with religious objections to abortion or contraception, this notice did not do so. Houses of worship, religiously-affiliated institutions, and private individual employers with religious objections are all in the same positions they were in before this latest round.

The administration did back down from what was conceptually (though not practically) among the more egregious elements of the original rule: its definition of a religious employer (and thus an employer exempted from the rule) as not simply an entity recognized by the IRS as a church but only one whose purpose is “the inculcation of religious values,” and which both primarily employs and primarily serves people who share its religious faith.

This was an absurdly narrow definition of a religious institution, as it excluded institutions that care for or serve people of other faiths, which of course essentially all religious charities do. But I say this was egregious mostly as a conceptual matter (that is, in showing just how narrow the administration’s understanding of civil-society institutions is) because the first part of the definition, which relied on the IRS definition of a church, already excluded most religiously affiliated institutions that were not actual houses of worship. Today, the administration just removed the language about serving and employing mostly people of the same faith and so has defined a religious employer by just referring to the IRS definition. This makes the rule less insulting to the American tradition of faith-based civil-society institutions, but as far as I can see it doesn’t actually exempt from the rule’s requirements any employers who weren’t already eligible to be exempted. In fact, HHS says so plainly in today’s rule: “this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” It is still the case that essentially only houses of worship are exempted.

Private employers who have religious objections to the requirement are offered no relief, and religious employers that are not houses of worship, like Wheaton College or your local Catholic hospital, are still required to provide employees with health insurance the gives them access to abortive and contraceptive drugs despite their conscientious objections. For those institutions, this rule reiterates the thoroughly inadequate “remedy” offered in the last round of rulemaking (and broadly rejected by religious institutions): Basically, religious organizations subject to Obamacare’s employer mandate would provide notice to their insurers who would then be required to provide each institution’s covered employees (or students, in the case of a university) with abortive and contraceptive coverage through “separate individual health insurance policies” that don’t cost them any additional money. It is of course far from clear what right HHS has to order insurers to do this, but since Obamacare makes insurers the government’s playthings anyway, it hardly matters I suppose.

So basically, the religious institutions are required by the government to give their workers an insurer and that insurer is required by the government to give those workers abortive and contraceptive coverage, but somehow these religious employers are supposed to imagine that they’re not giving their workers access to abortive and contraceptive coverage. If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t.

And that’s just the point here. This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. It’s not “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” but the right to answer to what you are persuaded is the evident and inflexible reality of existence, of meaning, of the universe, and of the mystery of human life. It’s not the right to do what you want; it is the right to do what you must.

Governments have to recognize that by restricting people’s freedom to live by the strictures of their faith they are forcing them to choose between the truth and the law. It is therefore incumbent upon the government of a free society to seek for ways to allow people to live within the strictures of their consciences, because it is not possible for people to live otherwise.

There are times, of course, when the government, in pursuit of an essential public interest, simply cannot make way for conscience, and in those times religious believers must be willing to pay a heavy price for standing witness to what they understand to be the truth. But such moments are rare, and our system of government is designed to make them especially so. Both the government and religious believers should strive to make them as rare as possible by not forcing needless confrontations over conscience. And in this case, I think it is just perfectly clear that the government has forced a needless and completely avoidable confrontation and has knowingly put many religious believers in an impossible situation. It is no secret that most of America’s largest religious denominations are opposed to abortion, and that some are opposed to contraception as well. And there are many alternative means by which the government can (and does) make abortive and contraceptive drugs and procedures available to people. The purpose of refusing to provide a religious exemption from this rule would therefore appear to be to force religious employers themselves to make those drugs and procedures available-to bend a moral minority to the will of the state. It is not only a failure of statesmanship and prudence, it is a failure of even the most minimal toleration.

Yuval Levin is Hertog fellow at the Ethics and Public Policy Center and editor of National Affairs.

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