The ‘Accommodation’ That Isn’t
It’s a dead end, and probably illegal too.


James C. Capretta


Over the past several days, it’s become clear that the White House’s talks with religious leaders — over the “accommodation” to HHS’s recent regulations on mandatory contraceptive benefits in insurance plans — are not going terribly well.

The president of the Catholic Bishops’ conference, Timothy Cardinal Dolan, penned a letter to his fellow bishops last Friday that made it clear the White House has offered no meaningful concessions in the talks so far — and that he has no expectation that they ever will. An “administration official” responded by leaking to the press his or her view that the bishops are being intransigent in the meetings. Moreover, the press is also reporting that — surprise! — White House talks with “Catholic officials from other institutions” are going much better than are those with the bishops. So well, in fact, that Health and Human Services Secretary Kathleen Sebelius has indicated that she hopes the supposed accommodation will be included in a revised regulation “in the near future.”

What to say about all this?

For starters, if it is true that certain Catholic “leaders” are in discussions with the White House, and working at cross purposes with the bishops, that would be, well, a bit hard to swallow, to put it mildly. This is not your usual political fight. This is a defining moment for the country, as Cardinal Dolan and the bishops seem to recognize. They are in a struggle for nothing less than the future of religious liberty in America. Breaches of trust at this time, in this fight, after everything else that has already transpired in the health-care battle, would almost certainly cause irreparable harm. That would serve no one’s long-term interests.

The other point is that the White House has, so far, been successful in using the offer of this supposed accommodation to create great confusion in the press and in public opinion. Based on how the press has covered the issue — this story from the Washington Post is a good example — it would be hard to blame the average American for thinking that the president has already offered a solution that will fix the problem.

But, of course, nothing could be further from the truth. Unfortunately, until it is widely understood that the president’s accommodation is actually no such thing, confusion will continue to reign. Therefore, it is critical for those trying to defend religious liberty against the administration’s aggressive moves to expose the accommodation as the deception that it is, as quickly as possible.

Here, it’s worth repeating some of the basic facts. On February 10, on the same day that the administration announced it wanted to craft the so-called accommodation, it finalized the rule that had been previously issued with no change. That rule includes the infamous four-part test by which HHS bureaucrats will determine which houses of worship are pure enough to warrant a full exemption from the mandatory coverage of abortion-inducing drugs, sterilization procedures, and contraception. It is also the same rule that provides no exemption from the mandate for religious employers that provide services to the general public. So, as matters stand today, the Obama administration has implemented rules that even it concedes infringe on the traditional rights of religious employers.