Another Non-Accommodation

Published February 5, 2013

National Review Online

In his latest column for the Washington Post, E. J. Dionne says there has been a “Big Religious War” under way and that a proposed “compromise,” issued by the administration last Friday, should end it. Well, at least he got part of it right.

Yes, there is a “Big Religious War” under way, but not the one that Dionne suggests, a manufactured “war” prosecuted by “right-wing” Catholics out of animosity toward the president. No, what’s under way is a real struggle over fundamental principles–namely the preservation of genuine religious freedom–with profound consequences for the country.

And it wasn’t started by the president’s political opponents. The aggressor here is the Obama administration. One year ago, it finalized regulations imposing the so-called HHS mandate–the requirement that forces employers to include free coverage of all forms of contraception, sterilization procedures, and abortion-inducing drugs in the health-insurance plans they organize for their workers. Under the rules issued last year, even religiously affiliated employers–and, most notably, many institutions associated with the Catholic Church–must comply with this requirement, despite fundamental moral objections to doing so. Business owners with religious objections to the mandate must also comply.

Dionne is entirely wrong when he suggests that the proposed regulation issued last Friday is an olive branch that can serve to bridge the differences between the warring parties. It’s not. On the contrary, it is a renewed statement by the administration that it will not allow religious institutions or believers to dissent from the prevailing secularism of the day.

The problem began when the Obama political team decided that, among other things, what they really needed was a wedge issue that they could use to get young unmarried women to vote in large numbers for Democratic candidates in the 2012 elections. And so we learned in early 2012–after hearing nothing about it during the preceding three years–that the GOP was secretly making plans to wage a “war on women,” including by restricting access to contraceptives.

Never mind that access to free and low-cost contraception has been the norm in the United States for years. Never mind that there is not a shred of evidence that large numbers of women have trouble securing low-cost contraception. There is no such evidence because there is no such problem. The federal government already directly subsidizes the widespread distribution of free contraceptives through numerous programs. It didn’t matter. What the president and his team wanted was an issue–and they got one when they decided that they would make every employer-sponsored insurance plan in the country cover these products for free, even employers with deep and enduring moral objections to paying for such coverage.

This wasn’t a fight that the Catholic Church or its bishops wanted, but once the administration made it plain that it was the Obama way or the highway, the bishops did the only thing they could do–which was to take the administration to court.

Scores of lawsuits have now been filed, and, as they have been winding their way through the legal system, it’s become clear that the bishops and their allies have very strong cases.

The administration knows this, which is why it has been suggesting for months that it was working on a genuine compromise that would make the court cases irrelevant.

With the issuance of last week’s faux accommodation, it’s clear that the lawsuits are as relevant as ever.

In last year’s regulatory action, the administration exempted from the mandate’s requirements only religious organizations that could meet a very narrowly drafted test. Essentially, only “houses of worship” could meet such a test. Now, in the proposed rule the administration issued last week, the definition of exempt employers is still exceedingly narrow; it’s just that the definition is lifted from existing IRS rules, which are only modestly less restrictive than the rule now on the books.

More important, the administration still insists that religiously affiliated charitable and educational activities are not exempt from the mandate. So, for instance, Catholic universities and hospitals are not allowed to offer health insurance to their workers that excludes coverage of the objectionable products and services.

Instead, the administration is suggesting that these institutions should be amenable to the proposed regulations’ formulation for administering the mandate’s requirements. Under the proposed rule, the burden would supposedly shift from the employer to the insurer. The insurance plan sold to the employer would notionally exclude the objectionable items. But the insurer would still be required to provide the coverage to the workers under a separate policy that would automatically be issued to the employer’s workers.

This shell game was thoroughly debunked months ago when the administration first tried it. Under the administration’s proposal, a non-exempt religious employer choosing to offer insurance at all would know in advance that this coverage would automatically come with a rider covering everything the employer would like to avoid. That’s essentially no different from doing it directly in the employer plan. It’s not a solution.

Moreover, the proposed rule provides no clear path to allowing non-exempt employers that sponsor self-insured plans to get out from under the mandate’s requirements. The rule suggests the problem could be solved for these employers by conscripting the “third-party administrators” that typically assist in the administration of these plans into providing the mandate’s required insurance coverage instead of the employers. This non-solution suffers from the same problem as the one suggested for fully insured plans as well as the added problem that third-party administrators are in the business to process claims, not provide insurance. Many of them may not even be licensed in the states to provide insurance.

And the rule doesn’t even pretend to offer a way out for the conscientious business owner who provides insurance for his workers but does not want to comply with the mandate for religious reasons. The administration has absolutely no sympathy for such a person and apparently has no qualms forcing him to violate his conscience.

The proposed rule issued last week by the administration resolves nothing. The stakes in this fight remain just as high as they have been for the past year. The administration believes that the supposed public good of free contraception is so important that it justifies just about anything–including trampling on the rights the country was founded to secure.

It’s not surprising that Dionne finds the administration’s latest proposal to be a moderate compromise; after all, he thought that even last year’s proposal should satisfy the bishops. So he’s an unreliable barometer of what constitutes a fair resolution of this matter. Meanwhile, for those who are genuinely concerned with protecting religious liberty and not just striking any compromise to make the issue go away, there’s still no choice but to fight on.

James C. Capretta is a senior fellow at the Ethics and Public Policy Center and a visiting fellow at the American Enterprise Institute.

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