Not New, Not Broad, Not a Compromise
HHS serves up a profound disappointment.

HHS secretary Kathleen Sebelius with President Obama


On Friday, the Obama administration issued a proposed rule change following from the supposed accommodation they promised a year ago to the controversial, coercive Department of Health and Human Services abortion-drug, contraception, and sterilization mandate. Mark Rienzi is a professor of constitutional law at the   Columbus School of Law at The Catholic University of America and an attorney at the Becket Fund for Religious Liberty, and he talks about why the religious-liberty problem remains.


: Was Friday’s release from the Department of Health and Human Services on the controversial abortion-drug, contraception, sterilization mandate an “olive branch” as the headline on E. J. Dionne’s
column in the Washington Post puts it?

MARK RIENZI: My grandfather used to tell me a story about how parents got children of his generation to eat their dinner without complaining. If my grandfather didn’t like his dinner, his parents simply said: “That’s okay, son, you don’t have to eat it.” The next morning, when my grandfather sat down to breakfast, he’d get the same plate of food he’d rejected the night before, just colder, more stale, and less appetizing. And if he didn’t eat it then, he’d get it for lunch, and every meal thereafter, until he finished it. Soon, my grandfather learned who was boss, and he stopped refusing his dinner.

Friday’s announcement from the administration was an “olive branch” in the same way that cold, stale plate of leftover dinner was an “olive branch” to my grandfather the next morning: It is simply a re-offering of the same unappetizing ideas that have already been explicitly rejected, in hopes that religious objectors will swallow now what they would not swallow a year ago.

That turn of events is a profound disappointment for those of us who had hoped that the administration would reach the easy, obvious, and legally required solution of just exempting all religious objectors. The government obviously has many ways it could get these drugs to people without forcibly involving religious objectors. Instead, the government took a year to think about the issue and came back with essentially the same proposal everyone already rejected last spring. That is an odd kind of “compromise.”

: The Notice of Proposed Rulemaking says that the government is changing some parts of the “religious employer” exemption. Isn’t that a good thing?

RIENZI: It is a welcome development, but one that even the administration says does not actually broaden the exemption to any employer who was not previously covered.

When the administration first announced the “religious employer” definition in 2011, they said churches could only qualify if they turned away needy people of other faiths who sought their help and if they refused to hire people of other faiths. This was always perverse: Who thinks that it is a good thing to force a Catholic soup kitchen to turn away hungry atheists or Jews?

Thankfully, the administration has dropped this terrible idea that religious groups should refuse to help their neighbors.

Why did they do this? The explanation is downright bizarre. Although the government itself originally wrote this turn-away-your-neighbor requirement, it now says it “was never the Departments’ intention” to exclude religious entities just because they “provide charitable social services to persons of different religious faiths.” This is remarkable because it was the departments themselves who expressly included precisely that limitation in the current final rule.

In any case, the administration is also quick to point out that its proposed change to the definition will have absolutely no impact on the number of entities qualifying for the “religious employer” exemption. As the departments explain, the new proposal “would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” This is because the exemption is still only available for churches and religious orders, and not to non-profit 501(c)(3) organizations, such as schools and hospitals.