The Latest Step in the HHS Mandate Saga: The Non-Accommodation Is Still Not a Solution

Published August 22, 2014

National Review Online

The Obama administration suffered two stinging defeats at the Supreme Court this summer related to the so-called “HHS mandate” — the rule that requires employers to include free contraceptives, sterilization services, and products that can induce early-pregnancy abortions in their health plan offerings to workers.

In the Hobby Lobby case, the Supreme Court ruled that closely held for-profit companies had rights under the Religious Freedom Restoration Act (RFRA), and that the contested HHS rule did not meet RFRA’s “least restrictive means” test for imposing this requirement on employers with religious objections.

A few days later, the Supreme Court granted a preliminary injunction to Wheaton College — a not-for-profit institution that objects both to complying with HHS mandate and to the terms of the “accommodation” the Obama administration had written for institutions with such objections. Wheaton will not be forced to comply with the regulation while its case is pending in the courts.

In response to these high-court rulings, the Obama administration released another round of rulemaking today.

The new rules have two parts:

  • First, the administration issued an interim final rule to change the procedure for granting the supposed accommodation to religious not-for-profit organizations.  An earlier rule required objecting employers to fill out a self-certification form indicating their objections, and then to submit that form to the insurer that was providing the coverage to the employers’ workers (or to the third-party administrator that pays claims, if the organization is self-insured). The interim rule allows religious not-for-profits to instead write a letter to the HHS stating their objections to the mandate.
  • Second, the administration has proposed a new rule to allow closely held for-profit corporations with religious objections to the mandate to avail themselves of the same supposed accommodation provided to the religious not-for-profits. The rule asks for public comment on how to narrow the definition of for-profits eligible for the exemption. It presumes the accommodation would not apply to publicly traded companies, and it leaves open the question of how many owners a company might have and still be “closely held.”

It’s no surprise that the Obama administration is trying to use the supposed “accommodation” to extricate itself from the political and legal jam in which it now finds itself.

The administration purposely wrote a coercive and overbearing HHS mandate rule to create a political issue. The president’s campaign team wanted objections to the rule because the objectors could then be demonized as waging a “war on women.” That would presumably help drive Obama supporters to the polls in 2012.

The problem is that people and institutions have religious-liberty rights in this country, and the HHS mandate is obviously trampling on those rights.

As the legal setbacks have mounted, the administration has attempted to construct a way out for itself.  The “accommodation” is their attempt at an escape: On the one hand, the administration wants to tell the courts that employers with religious objections to the mandate no longer have a case because, under the supposed accommodation, these employers can sponsor insurance plans for their workers that exclude the services and products to which they object. On the other hand, the administration also wants to tell its most ardent supporters that it hasn’t backed down because all of the people working for these employers, and their families, will still get free contraceptives. Magically, the insurance plans that work with the objecting employers will be required to provide the products and services to the employees — for free.

In other words, the supposed “accommodation” changes nothing that matters.  It is a moral farce.

Under the administration’s rules, all employer-sponsored insurance, including plans sponsored by employers with religious objections to the HHS mandate, will provide free contraceptives, sterilization procedures, and abortifacient products.  The only difference between a plan offered by an employer with no objections and one with objections is that the employer with objections gets to write a letter to HHS saying “I object.”

Put another way, all insurance-plan contracts written for employers will include provisions specifying that coverage will be provided for the products and services required by the HHS mandate. It’s just that the contracts drawn up for employers with objections to the HHS mandate will have these provisions written in invisible ink.

In a moral sense, the supposed “accommodation” is meaningless. If an employer with religious objections to the HHS mandate offers insurance to its workers, that coverage will, by definition, always include the objectionable services and products. There’s no way around it. The objecting employers therefore know, in advance of making the decision to offer coverage, that if they do offer coverage, the insurance plan they sponsor will provide full coverage for these products and services that they find morally objectionable.

The real solution is of course a full exemption, not this convoluted non-accommodation. Employers with religious objections to the HHS mandate should be allowed to offer insurance in conformance with their consciences. It’s that simple. This would likely affect a very small percentage of the American workforce.

Contrary to the administration’s claims, there never was a crisis of inadequate access to contraceptives in this country. The products are generally inexpensive, widely available, and heavily subsidized by the federal government. But if the Obama administration is concerned that granting a broader exemption will hamper access to these products and services, it can easily propose direct provision of these products and services to the employees of the objecting firms through existing public clinics.

The Obama administration is hoping this non-accommodation will confuse the debate sufficiently to defuse the remaining opposition to its rulemaking. That shouldn’t happen. The employers fighting the mandate, including many Catholic institutions, have come too far to accept a phony compromise now. The accommodation should be exposed for the shell game that it is, and the fight should continue until genuine religious liberty is protected.

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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