The President’s Outrageous ‘Accommodation’ Changes Nothing

by Mario Loyola

The fact that the insurance companies will be required to provide contraception “free of charge” apparently means that they will be required to shift the cost of contraception from the religious organizations to their non-religious organizations. But at the end of today’s fact sheet, the White House notes that in some cases covering contraception can reduce premiums. That means that if the insurance companies actually cost-shift the coverage of contraception to non-religious organizations, it might lower the insurance premiums of non-religious organizations and raise premiums for religious ones. Either way, this just piles a mess on top of a mess. Otherwise, as Yuval points out, today’s announcement changes nothing. 

Religious organizations should not back down an inch. With the tax penalty on individual health insurance, the federal government forced employers to become part of the national infrastructure of health care. Their freedom of choice is illusory because their participation is coerced, through a tax penalty on individual purchase of insurance, which is economically equivalent to a tax penalty on them. On top of that tax penalty, Obamacare imposes an employer mandate, with a more explicit tax penalty. Now, having forced employers, including religious organizations, to purchase health insurance, the federal government is going to require them to provide a service that they think is murder.

It doesn’t matter what gimmick the president comes up with to hide the fact. Religious organizations are penalized if they don’t provide health insurance, and their health insurance must cover contraceptives and  abortifacients. Today’s announcement is an “accommodation” only in the minds of those who share the president’s infantilized understanding of economics.  

If the Supreme Court were still enforcing the inherent limitation in Congress’s power to regulate commerce “among the several States” under the Constitution, we wouldn’t even have this problem because the federal government wouldn’t be able to regulate health care at all. But since the New Deal, the Court has abandoned its role as guardian of the Constitution’s limits on federal power. In that sense, our country is in a post-constitutional era, slouching towards a tyranny-of-the-majority. As Walter Lippmann predicted would happen if the New Deal was allowed to stand, “constitutional checks and bills of rights exist only by consent of the majority.”

What Obama is doing with the contraception mandate should shock the conscience of everyone who believes in the protections that our Constitution is supposed to provide. Obama took an oath to uphold the Constitution. That makes his lack of interest in what the Constitution says even more inexcusable than his economic illiteracy. All Americans should be outraged by this casually tyrannical assault on our basic rights.  

— Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.  

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