Published on July 3, 2013
For the past 18 months, as the battle over the “HHS mandate” — the requirement that all employers must include free contraception, sterilization procedures, and abortifacients in their health-insurance plans for workers — heated up, the Obama administration insisted, to courts and the general public alike, that it had a plan to make the political firestorm go away. An “accommodation” was being written, we were told, and it was so clever and imaginative that it could somehow satisfy both the religious sensibilities of employers objecting to the mandate and those who insist that our laws must provide for an absolute right to free contraception and other “reproductive” services through job-based insurance — with no exceptions.
Of course, it was never going to be possible to square this circle; something would have to give. The administration could either do what previous administrations would have done, which is to recognize the importance of providing ample space for those with religious sensibilities to follow their consciences without running afoul of the government’s laws and regulations, or it could ignore our nation’s history of religious tolerance and impose an inviolate “right to contraception” on every employer, religious objections notwithstanding.
But the administration insisted it did not have to choose, because of its clever “accommodation.” Some people even believed them, or at least said they did.
In its original form, the “accommodation” was supposed to create a “rider” policy, triggered whenever a qualified religious employer objected to providing the products and services required by the mandate. In these cases, the contract between the insurer and employer would make no reference to the objectionable products and services, but the insurer would be required to issue a separate insurance plan to all the employer’s workers providing coverage for the items supposedly excluded from the employer’s plan. A similar requirement was imposed on the companies — called “third-party administrators” — that process the claims for employers who self-insure. These companies are often not even insurance providers. No matter. The administration was going to force them to issue insurance products to perpetuate the fiction of religious tolerance.
Of course, this ruse did not satisfy those seriously objecting to the mandate, because it did not fundamentally change the moral equation. An employer objecting to the mandate would know in advance that sponsoring job-based insurance would necessarily trigger free coverage for the objectionable products and services in the form of the rider policy. That’s no different from directly providing for the coverage in the employer’s insurance contract itself. It also didn’t satisfy the insurers and the third-party administrators who objected to the idea because of the many administrative problems it would cause.
The administration’s final rule on the subject exposes the fraudulence of the entire “accommodation” exercise. In response to the concerns expressed by insurers, the rule drops the fig leaf of a separately issued insurance plan and instead simply requires insurers and third-party administrators to provide the items and products covered by the mandate for free to workers and their families, even if a religious employer elects to exclude those products and services from the insurance contract. In other words, these products and services are covered in every insurance plan sponsored by employers (with the exception of a narrowly drawn list of churches and houses of worship), whether or not it says so in the insurance contract. Amazingly, the administration asserts that this is an “accommodation” to take seriously.
Of course, the Obama administration never made a pretense of being sympathetic to the concerns of for-profit employers who object to the rule. They have no choice but to provide the coverage — in clearly visible ink — or pay the fines under Obamacare for not offering insurance to their workers.
As usual, the administration issued this rule when it hoped to generate the least media attention, on a Friday before a congressional recess. The irony — undoubtedly lost on the administration — is that this recess is devoted to the nation’s birth, which was motivated heavily by the pursuit of genuine religious toleration.
The fight is not over, and can still be won. Those opposed to the mandate are exercising their constitutional rights and are suing the administration. And there’s reason to believe the courts will ultimately defend and honor the religious-liberty traditions of this country in a way the administration would not.
Moreover, this issue can and should be contested in the political arena. There is no public-policy rationale for the HHS mandate, because the products and services covered by it are already widely and readily available, and heavily subsidized by the government for those with low incomes. The administration is imposing this requirement for entirely ideological reasons. The GOP should expose the zealotry that is at work here, which would then pave the way for undoing it through legislation or at the next available opportunity to rescind the rule.
— James C. Capretta is a senior fellow at the Ethics and Public Policy Center and a visiting fellow at the American Enterprise Institute.