It has become a common talking point that there is a Hawaii fix to the HHS mandate. But it is not much of one. Mark Rienzi, who is part of the legal team at the Becket Fund for Religious Liberty suing the Department of Health and Human services over the mandate, tells me:
The supposed Hawaii solution may look better than the current mandate, but it still isn’t constitutional. The Hawaii approach would force religious employers to give instructions to their employees about how and where to obtain abortion-causing drugs and contraceptives. Obviously people who have religious objections to paying for the drugs will usually have objections to telling people how to get them. In both cases, the government is forcing the religious objector to facilitate distribution of the drug.
Of course, the Hawaii plan points to a simple and obvious solution for the government: Why doesn’t the government just tell people where to get it? Why should there be some obsessive need to force religious objectors to be involved in this? If this were actually about access, the government would do just that.
Richard Doerflinger, of the Catholic bishops’ conference says:
“I’ve reviewed the Hawaii law, and it’s not much of a compromise,” said Richard Doerflinger of the USCCB Secretariat of Pro-Life Activities and the bishops’ chief lobbyist on life issues in the nation’s capital. “The Hawaii contraceptive mandate has many of the same features as the new federal mandate.”
Like the federal rule, he said, the Hawaii bill “covers all FDA-approved ‘contraceptives’ (including drugs that can cause an abortion); and the religious exemption is very narrow (though it does not include the requirement that the religious organization serve only people of its own faith to be eligible).
“It adds an extra feature — the requirement that any religious organization that is exempt must still tell all enrollees how they may directly access contraceptive services and supplies in an expeditious manner.”
In other words, the Catholic Church must directly send women to drugs and devices that are morally wrong and can do harm to them.
Doerflinger also raised an additional concern about the federal rule that has received little attention: Catholic institutions will be required to make referrals for services the Church deems morally illicit.
“From the Obama administration’s press release of Jan. 20, it seems this referral requirement is about to be added to the federal mandate, actually making it worse,” he said.