The Compromise That Isn’t

President Obama and HHS Secretary Kathleen Sebelius depart the White House press room, February 10, 2012.


The White House has offered something it calls a compromise on the so-called contraception mandate — and by “compromise” the Obama administration apparently means offering a symbolically tweaked plan to go forward with trampling Americans’ religious liberties while pretending to accommodate them. In truth, nothing of substance has changed from the administration’s January 20 announcement that religious employers will be forced to provide services they find morally objectionable. 

Here’s what the Obama plan would mean in practical terms: If a “non-exempt religious employer” — that is, a religiously affiliated employer, such as a Catholic social-service agency, that is not exempt from the mandate as a house of worship — chooses to offer health insurance to its workers, that insurance must always include among its benefits free contraception, sterilization, and access to abortion-inducing drugs. Which is to say that if they offer health insurance at all, many religious employers would be complicit in funding products and services that are in direct violation of the fundamental norms of their faiths. The substance of the “compromise” is the fact that the requirement to provide these services free of charge would be relocated, moving out of the employers’ insurance contract and into a federal regulation governing what insurers must include in the policies they sell to non-exempt religious employers. In effect, religious employers will be told that they can buy whatever policies they want, but insurers will be able to sell them only policies that cover contraception, sterilization, abortifacients, and the like. This “compromise” leaves religious employers in precisely the same position they were in before: with no way to offer insurance that does not include coverage they find morally objectionable.

It should go without saying that this coverage is not free and that insurers aren’t going to be eating the expenses. The cost of providing these products and services will be exactly the same as before, irrespective of how the requirement is enforced. Non-exempt employers will be paying exactly the same premiums as under the previous policy, and their premiums will be paying for benefits that violate their religious liberties.

Catholics and others who have joined together in a groundswell of opposition to the heavy-handedness of the White House on these matters should not be duped by this act of political theater. What is at stake is a matter of first principles: If the federal government can impose this kind of pernicious requirement on religious institutions, what can it not do? Even those who are generally friendly toward contraception and abortion should be given pause by this: Any future pro-life Republican president would be invested with precisely the same powers to write his every whim into federal insurance law.

The solution to this problem is not to be found in legislative compromises or political horse-trading but in the Constitution: The American people are guaranteed the right to religious liberty by the First Amendment. That means protecting both the rights of religious institutions and those of individual citizens. There are tens of millions of pro-life Americans, representing a variety of religious affiliations. Some own businesses, and most work for non-religious employers. They have rights, too. Shouldn’t they be allowed to buy and sell health-insurance plans that do not violate their consciences? At an absolute minimum, any resolution to this dispute must ensure that they do.

The fundamental problem here is the Patient Protection and Affordable Care Act, which invests the president, through the secretary of health and human services, with extraordinary powers to dictate terms to consumers, employers, and health-care providers. Such unaccountable power reliably leads to abuse, and this assault on our religious liberties will not be the last of them, and perhaps not the worst of them.


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