The HHS Mandate Has Not Changed


Under the Department of Health and Human Services’ contraceptive mandate, many employer-provided health-insurance plans are required to provide, for free, all FDA-approved forms of contraception, including those that sometimes operate as abortifacients, as well as sterilization services.

It’s fitting that the Obama administration used the business day right before Groundhog Day to announce the next bureaucratic step in its supposed “accommodation” of employers who have religious objections to complying with the mandate. For despite the claims of some White House courtiers (and, alas, a few opponents of the mandate whose naïve hopes have gotten the better of their judgment), there was nothing meaningfully new last week. We seldom have occasion to agree with the New York Times editorial board, but its assessment that the recently proposed rules do “not seem to depart in any significant way” from what was proposed a year ago is clearly correct.

One year ago, there was the Advance Notice of Proposed Rulemaking (ANPRM). Now there’s the new Notice of Proposed Rulemaking.

One year ago, the Obama administration proposed “to accommodate [only] non-exempt, non-profit religious organizations” that had religious objections to the HHS mandate, and to provide no relief at all to the many for-profit employers (and heads of non-“religious” nonprofits) who strive to run their operations in a manner that is consistent with their religious beliefs. At the same time, it provided no legal analysis of how its failure to offer relief to these other employers could be reconciled with the commands of the federal Religious Freedom Restoration Act. Exactly the same is true of last week’s order.

One year ago, the ANPRM proposed that health insurers, rather than eligible objecting employers, “assume the responsibility for the provision of contraceptive coverage” for those employers’ workers, paying for such coverage “from the estimated savings from the elimination of the need to pay for services that would otherwise be used if contraceptives were not covered.” In other words, the insurance provided by the employer would still cover contraception, and the employer would still be billed the same amount. The ANPRM did not venture to explain how this made any difference. Exactly the same is true of last week’s order.

One year ago, the ANPRM floated three possible approaches by which a nonprofit religious organization that self-insures might instead have the third-party administrator of its plan arrange and pay for the contraceptive coverage. Again, the ANPRM did not explain how an employer who objects to facilitating that coverage wouldn’t still be compelled to do so. Last week’s order likewise floats three possible competing approaches, none of which is sufficiently concrete even to have been translated into proposed rules that can be examined and assessed.

One year ago, the Washington Post’s E. J. Dionne Jr. (along with other Catholics on the left) celebrated the Obama administration’s “compromise” and urged American bishops to seek to protect only the interests of church entities. Now Dionne touts the administration’s supposedly new “olive branch” and contends that the Catholic Church somehow “made a mistake in arguing its case on the grounds of ‘religious liberty.’”

As Bill Murray would put it, it’s the same large squirrel. Americans serious about defending religious liberty need to recognize that nothing has changed.