Not-So-Safe Harbor
Wheaton vs. President Obama’s HHS.


Buried in the August news was yet another regulatory rewrite from the Obama administration pertaining to the Department of Health and Human Services mandate. As the Democratic Convention has been celebrating its version of freedom in Charlotte — one where mandating coverage of contraception, sterilization, and abortion-inducing drugs trumps religious liberty — an Evangelical college was back in court, in a suit against the federal government. On Monday, Wheaton College filed an appeal in federal court after a D.C. district court in late August dismissed the college’s lawsuit challenging the HHS mandate. The court held that the latest version of the administration’s “safe-harbor” rule — which gives some faith-based entities, including Wheaton, one year to comply with the mandate — made the college’s suit premature. Kyle Duncan, general counsel at the Becket Fund for Religious Liberty, explains what this means for Wheaton and for religious liberty in an interview with National Review Online’s Kathryn Jean Lopez.

KATHRYN JEAN LOPEZ: How does the latest rewrite of the HHS mandate’s “safe-harbor” rule affect the religious liberty of schools such as Wheaton College?

KYLE DUNCAN: It leaves them somewhat better off, for the time being. In response to Wheaton’s lawsuit, the government expanded the one-year safe harbor to include religious organizations that discovered objectionable drugs in their health plans, acted to remove them, but were unable to complete the exclusion process before the cutoff date. As originally written, the safe harbor plainly didn’t include such organizations. Now it does. This means those organizations have the additional safe-harbor year before the government fines them for not providing insurance that violates their religious beliefs.


: What is the “safe harbor”?

DUNCAN: The “safe harbor” is essentially the federal government’s promise that — for one additional year after the mandate’s effective date of August 1, 2012 — it will not enforce the mandate against certain religious organizations. It’s not the same as being “exempt” from the mandate, which would mean the mandate doesn’t apply to you at all. The government has chosen to “exempt” only organizations that narrowly qualify as houses of worship under the Internal Revenue Code. By contrast, the “safe harbor” is merely the government’s promise not to enforce a law that actually does apply to the organization. It’s as if the government said, “This law binds you, but we are not going to enforce the law’s penalties against you for the time being.”

: Was the court’s August 24 ruling a victory for Wheaton and religious liberty, even though their case was dismissed?

DUNCAN: It is a victory — but a temporary and partial one. Wheaton and presumably many other religious groups in a similar position have been promised they will not face the threat of heavy government fines until sometime after August 2013 (depending on when their insurance year starts). It should be obvious why a victory on those terms is limited, however. The threat to religious liberty is still out there; it’s merely been postponed. The government seems to be saying, “Trust us, we’ll fix the mandate down the road.” But that is not how rights work. Our government cannot put religious believers in a position where practicing their faith has been deemed illegal but they are granted a temporary reprieve. And the safe harbor itself isn’t entirely “safe,” anyway. During the safe-harbor period, religious organizations can still be sued by any covered employees or their family members who think the organization should be providing the mandated drugs.

: How is Wheaton about to be in violation of federal law, despite the rewrite, and despite the court’s apparent lack of concern or recognition of this?

DUNCAN: The government has merely promised not to enforce the mandate for an additional year. During that time, however, the mandate continues to apply. So, each and every day of the safe harbor, an organization is — in a very real sense — in violation of federal law. During that time, the clock continues to tick toward the date when the government will begin enforcing the mandate. An organization in that position can only wait to see if the government comes through with some kind of “fix” for the mandate. But as of right now, the government has only made a nonbinding promise to come out with some new, unspecified mandate by August 2013. And, as I said above, during that period an organization is still legally exposed to private lawsuits by any employee unhappy with the organization’s stance on the mandate. It would be understandable if a religious organization felt its rights deserved more robust protection. The courts are the ones who should provide that protection.

: How can the federal government keep playing with a rule like it has with this one? And what does this mean for the rule of law?

DUNCAN: It’s important to remember that the HHS mandate itself is not a product of legislation, but of regulation. Congress didn’t pass it; an executive agency issued it through a rulemaking process. Administrative agencies have a great deal of flexibility with the rules they promulgate, although that flexibility cannot be unlimited. Furthermore, the safe harbor isn’t even a regulation. Rather, it’s the agency’s “guidance” position advising how it will enforce the rule. What does all this mean? That, as it stands now, the government has created a kind of tiered system for organizations with religious objections to the mandate. Some are completely exempt (churches, for the most part); some are granted a temporary reprieve (religious colleges, hospitals, charities, etc.); others have no protection whatsoever (religious business owners). I will leave it to the philosophers to say what this means for the “rule of law.” To me, it seems like there are much better ways of running a railroad.

: Everyone will be talking about politics during these next weeks. How can your work inform the political conversation?

DUNCAN: The HHS litigation is not about whether it’s socially or morally desirable for government to promote free contraception. That’s an important argument our society should be having, but it’s one for the political process. The litigation can help inform the political process, however, by drawing attention to where the government’s contraceptive project infringes on basic liberties — here, it’s religious freedom. So, the litigation is saying, “The people, through their representatives, can determine whether to promote free contraception. But they cannot do so by forcing religious objectors to provide it against their consciences.” That’s what the government has done through the HHS mandate. It can’t do that.     

 Kathryn Jean Lopez is editor-at-large of National Review Online.