Smoke and Mirrors from HHS

by L. Martin Nussbaum
The freedom to choose applies to conscientious objectors, too.

On Friday, the Obama administration announced — again — that it wants to achieve a “balance”: It will keep its commitment to give women free “contraceptive services” through their employers’ health plans while “respecting religious beliefs” of employers that conscientiously object. Its solution was one new regulation and the draft of another. These regulations, the seventh and eighth on this subject since 2011, are not balanced, and they are not respectful of those with sincerely held religious beliefs.

First, let’s be clear about language. The administration, as part of its “war on women” rhetoric, describes its employer mandate as one for “contraceptive services.” If the mandate were only about preventing conception, employers like Hobby Lobby would have no moral objection. Hobby Lobby willingly provides 16 of 20 FDA-approved drugs the government calls “contraceptives.” It refuses only four, on the understanding that they function, as the FDA admits for two of them, to induce abortion. The mandate includes, in addition to contraception and abortifacients, sterilization and related counseling. Hence, a more accurate term for this would be “the CASC mandate.”

The draft regulation seeks to undo Hobby Lobby’s U.S. Supreme Court win and prevent closely held businesses from operating according to their owners’ religious values. It does this by making those employers subject to the “accommodation” the administration had previously given to ministries it disfavors — ministries that include the nursing homes operated by the Little Sisters of the Poor. (The administration favors, with full exemption, the ministries it calls “houses of worship.”) Under the “accommodation,” employers that cannot in good conscience provide all the CASC services are treated as merely morally squeamish. It says they do not have to provide such services directly so long as they force someone else to do so. For those with self-funded plans, the administration’s mechanism for accomplishing this is a form that the employer gives to its third-party administrator (TPA). By force of law, the form hijacks the employer’s health plan; amends it; adds a second binder to the employer’s plan, consisting of CASC coverage; and requires the TPA to ensure and pay for delivery of those services.

During the Civil War, the government exempted Amish, Mennonites, and other pacifists from the draft so long as they engaged surrogates to serve in their places. They were exempted only if they ensured that others would do what they hold to be wrong. It takes little moral imagination to understand that a government that insists on such an arrangement does not respect their conscience.

So how does the new regulation better respect the conscience of religious employers that cannot participate in the “accommodation”? It says that, instead of providing the form to the employer’s TPA, the employer can now provide a different form to the government, along with the name and contact information of the employer’s TPA. The government will then inform the same TPA that the employer’s plan is, by force of law, amended; that the plan thereafter includes a second binder of CASC coverage; and that the TPA is thereafter required to ensure and pay for delivery of the services to which the employer objects. Sound familiar?

It gets worse. Under the first “accommodation,” an employer had legal authority, under the Employee Retirement Income Security Act (ERISA), to amend its plan and appoint its plan administrator. That is why it was the employer that had to sign the form and deliver it to its TPA. Under the new regulation, the Obama administration, through its “broad rulemaking authority,” assumes authority to modify the terms and appoint the administrator of an employer’s health plan. This means that the administration believes it can unilaterally change or ignore ERISA, a statute enacted by Congress.

It is not news that there is a deep divide in the United States over moral and public-policy issues related to abortion, sterilization, and contraception. Freedom of choice is invoked to protect these options. It ought also to protect the freedom of those who, because of sincerely held religious belief, choose not to participate in them.

— L. Martin Nussbaum is a Colorado attorney who advocates for religious institutions nationwide.