Ethics & Public Policy Center

The Latest Mandate Announcement: ‘We Need a Process to Get Past November!’

Published in National Review Online on March 16, 2012


At 4:15p.m.this afternoon, the Obama administration issued its latest pronouncement on the HHS mandate, in the form of an Advanced Notice on Proposed Rulemaking (ANPRM). So what did the administration have to say on this late Friday afternoon?

Basically, it was a thinly veiled attempt to punt the entire issue into 2013, thus allowing the president to continue his doublespeak on the issue—pretending that he is interested in protecting religious liberty with pronouncements about a forthcoming concession while the policies he actually implements go in exactly the opposite direction.

In the ANPRM, the administration said it is seeking input and comments on the so-called “accommodation” that the president announced on February 10. But the ANPRM also makes it clear that this process of getting input and issuing new rules will be very long and drawn out—so much so that the administration doesn’t expect to issue final regulations until August 1, 2013. Thus, with the issuance of the ANPRM, the administration is basically saying it won’t be making any further policy in this regard prior to this November’s election. That’s telling in and of itself. The administration is desperate to get past November without this issue further hurting the president. Thus they announce an elaborate process that they expect to take more than a year to complete. Meanwhile, the president will undoubtedly continue to reiterate his interest in protecting religious liberty—it’s just that he can’t tell us how exactly he will do so until he has safely secured a second term.

Still, despite the transparent stalling tactics, it is abundantly clear from the text of the ANPRM that this process is essentially a waste of time. The administration is seeking comment only on its dead-end “accommodation” proposal that doesn’t come close to satisfying legitimate religious-liberty interests, including those expressed yet again by the nation’s Catholic bishops this week in their latest statement on the matter.

In particular, the ANPRM seeks comment on how to go about implementing a requirement that supposedly moves the obligation to provide free contraception, sterilization procedures, and abortion-inducing drugs from employers to insurers. But this approach does not change the moral calculus for the employers: If they offer coverage to their workers, the objectionable products and services will be part of the package, no matter what, because the government is making it so. That’s the problem that needs to be solved. And the only way to solve it is to allow these employers to offer health insurance that does not cover these products and services. If the government wants to make them available to the workers nonetheless, it needs to find a way to do so without involving the employers’ insurance plans.

Further, the rule does not open up for comment the ridiculously narrow definition of “religious employer” that allows full exemption from the mandate. The notorious four-part test is to remain in place, which essentially excludes religious employers that serve a broader community of persons (such as universities and hospitals).

And finally the rule doesn’t even pretend to be interested in the religious-liberty rights of ordinary Americans, both the workers who have no ability to sign up with insurance plans that don’t cover these mandated items and the employers who have religious convictions but don’t fall under the definition of a “religious” employer.

So, in sum, today’s announcement is what one might have expected at this point: a political stunt that buys time for the president but actually concedes nothing.

James C. Capretta is a fellow at the Ethics and Public Policy Center and project director of e21’s ObamaCare Watch. He was an associate director at the Office of Management and Budget from 2001 to 2004.

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