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


James C. Capretta

Moreover, as has been pointed out by many others, the “accommodation” that was floated by the president on February 10 — which was described as moving the obligation for covering the products and services in question from the employers to the insurers — would do nothing for those religious employers who self-insure and therefore act as both employer and insurer. The administration has yet to come up with a credible response to this critique.

But even more fundamentally, the entire concept of this “accommodation” is basically hopeless because it cannot solve the core problem for the religious employers who are objecting to this obligation. As articulated by the administration, the government would force insurers to cover the products and services that the employer objects to even though the insurance contract between the insurer and the employer excludes these products and services. Thus, from the perspective of the employer, if it chooses to offer health insurance to its workers, it will know in advance that the coverage will, by definition (because of the government’s rules), be coverage that pays for the problematic products and services. Creating this artificial movement of the regulatory obligation from the employer to the insurer does not change this fundamental reality. And so this supposed accommodation really achieves nothing.

It has also been suggested by proponents of the accommodation that the cost of providing the mandated coverage could somehow come out of the insurance company’s resources and not from employer premiums. But that’s not true either. Under the supposed accommodation, when an insurer is selling a policy to an employer who objects to these products and services, the insurer will know in advance that the government will nonetheless require it to pay for these products and services when the enrollees get them from doctors and pharmacies. Consequently, the premium charged by the insurer to the employer will necessarily reflect the full cost of what the insurer is expecting in terms of benefit claims, including the explicitly covered items in the contract with the employer as well as the products and services the insurer must cover to comply with government regulations.

Finally, though the health-care law delegates great authority to the president, it doesn’t give him the authority to force privately owned insurance companies to pay for products and services that aren’t covered in the contracts that the insurers have with employers. So, even if this accommodation were worth something, which it isn’t, it almost certainly won’t work in practice because it has no basis in law.

Give the White House some credit though. Over the past month, this supposed accommodation bought them a reprieve from the pressure they were under because it fooled a lot of people. But, sooner or later — one hopes sooner — it will be exposed for the empty gesture that it is. At that point, it will be possible to frame the issue again as it should have been framed all along: as an unprecedented and unconstitutional assault by the administration on the traditional role of religious organizations in American life, for which the appropriate remedy is a sharp rebuke by the electorate at the ballot box.

— James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.