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

HHS secretary Kathleen Sebelius with President Obama


The government’s complete omission of these people from the “accommodation” is surprising because the issue was obviously on the administration’s radar screen. In fact, over the past year, the administration has been fighting religious-liberty claims by for-profit businesses and their owners in at least 14 different suits and it is losing badly. To date, eleven of the 14 for-profit business plaintiffs have received preliminary injunctions from the federal courts.

A truly “new, broad compromise” would have recognize that people should be free to earn a living without having to give up their religion. Yet the administration ignores these citizens entirely, as if they silently trade in their religious freedom when they open shop in the morning. Indeed, while the administration promises that it will “insulate” and “protect” non-profit objectors from “contracting, arranging, paying, or referring for such coverage,” it continues to assert in court that contracting and paying for such coverage imposes no burden at all on religious business owners.

Second, even for the non-profit entities who might receive the claimed “accommodation,” the promised change is not new and is not a compromise. A year ago, the president announced the same proposed accommodation by which non-profit religious objectors would be spared from having to sign a contract that included the words “contraceptive” and “abortion-inducing,” but the same insurers would be ordered by the federal government to provide the same drugs to the same employees as a result of that same contract. This is essentially the same policy that Friday’s announcement moves one step closer to becoming law.

Here is how that policy proposal was greeted by the United States College of Catholic Bishops when first announced last year:

However the term “religious organization” is ultimately defined, the Administration’s suggested “accommodation” for such organizations, as described in the ANPRM, will not relieve them from the burden on religious liberty that the mandate creates. Under the ANPRM, the central problem for insured plans remains: conscientiously-objecting non-exempt religious organizations will still be required to provide plans that serve as a conduit for contraceptives and sterilization procedures to their own employees, and their premiums will help pay for those items. For self-insured plans, the Administration has invited comment on a number of different approaches. As a practical or moral matter, none of them will solve the problem that the mandate creates for non-exempt religious organizations with a conscientious objection to contraceptive coverage.

The bishops also explained that the proposal would effectively make these drugs available to the minor children of their employees, without parental notice or involvement. As to the suggestion that the bishops’ distaste for this proposed “accommodation” was unclear, the bishops filed more than a dozen federal lawsuits challenging the mandate just three months after the accommodation was first proposed.

Their objection was joined by religious leaders across the spectrum. The Orthodox Jewish Union filed comments explaining that they “are troubled by a regulation that creates an exemption only for religious organizations that are ‘religious enough’ or that act in a government-approved way.” The Union continued:

Even if some religious organizations bend to the Departments’ will, being forced to do so will drive a wedge between the government and many of this country’s most important and significant civil institutions. It would be very regrettable, and will engender a predictable and lasting bitterness, if the Departments finalize a regulation that forces good-hearted and religious citizens to choose between their conscience and the law. In the end, no one will benefit from a government that imposes that choice upon many of its kindest and most productive citizens.

Sister Carol Keehan of the Catholic Health Association, a supporter of the president and the Affordable Care Act, likewise is on record opposing the alleged accommodation. Sister Keehan and CHA explained that, instead of this accommodation, “the government will need to develop a way to pay for and provide such services directly to those employees who desire such coverage without any direct or indirect involvement of religious employers.”

Nor were these objections limited to religious leaders. When the accommodation idea was announced last year, the head of the Economics Department at Harvard University explained that the proposal was mere “semantics” and made no functional difference “other than using slightly different words to describe it.” Another economist summed up the attempt to sell this approach as an accommodation with a blog post titled “Your President Hopes You Are Stupid.”

Yet this proposal is precisely what the Friday announcement moves forward. It is hard to call re-offering the same alleged solution, which has already been publicly rejected and prompted many federal lawsuits, an attempt at “compromise.”

LOPEZ: What happens next?

RIENZI: The for-profit cases which the administration is currently losing 11-3 will move on in the courts of appeal. This proposal does not harm those lawsuits, because those plaintiffs get nothing under it.

The non-profit cases will likely continue as well. The administration could have solved all of those cases simply by giving them the exemption that is required under federal law. Because the government instead offered the “accommodation” scheme, the plaintiffs in those cases will presumably sit down to think about whether the proposed accommodation satisfies their religious objection. The glorious thing about religious liberty in America is that everyone gets to reach their own religious conclusions: It doesn’t really matter what religious leaders or the president think the right answer is. So it is theoretically possible that some employers who had religious objections to contracting for this coverage of abortion-inducing drugs would have no religious objection to the proposed arrangement. If such employers exist, those suits will go away. But I suspect that most cases will continue through the courts: The administration has made clear that it is not going to let these religious objectors escape involvement in providing these drugs, which means most of these plaintiffs will need to seek protection from the courts.