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The ‘Compromise’



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Today, the president announced a so-called compromise on his mandate for free abortion-inducing drugs and contraception from employers. This new proposal changes virtually nothing, except perhaps the president’s re-election chances, if the public can be seduced by appearances.

The “compromise” from his original rule — which sparked a firestorm among religious groups and landed his administration in three federal courts — is not the obvious fix, which would be to expand the mandate’s current exemption so it spares all organizations with conscience-based objections.

No, under the “compromise,” the exemption — the narrowest conscience protection in any federal or state law — has not budged. (It still protects only the fraction of religious organizations that primarily employ and serve people of their own faith and that inculcate religion as their primary purpose — thus still excluding religiously affiliated schools, universities, shelters, and many others that serve their larger communities.)

For the host of religious organizations not exempt from the mandate, the president today promised a different plan. Now, under a rule yet to be developed, their insurance companies — not the religious employers themselves — would be forced to pay for the abortion-inducing drugs, sterilization, and contraception. So we are to believe that these for-profit insurance companies will simply forego piles of revenue: HHS Secretary Kathleen Sebelius has repeatedly asserted the cost of birth-control pills alone to be up to $600 per person every year.

Anyone who understands business or economics knows how companies respond to such edicts: When the balloon is squeezed at one end, it swells at the other. They shift charges around so their customers still bear the cost; companies cannot magically eliminate costs. Religious employers would still ultimately be paying for these services against their conscience, with the costs spread through higher insurance premiums for their employees.

And the problems with the president’s new plan don’t end there.

First, hundreds if not thousands of religious organizations have self-insured plans, where the religious organization is the “insurance company.” The new “compromise” offers them nothing. They remain in the same morally untenable position. Ironically, many religious organizations chose self-insurance to avoid state contraception mandates.

Second, it’s still unclear whether, even under the new proposal, non-exempt religious organizations (for-profit organizations, individuals, or non-denominational organizations) will have their religious liberty protected at all. The announcement today only reinforces how the government’s policy intends to treat different religious groups and individuals differently — another constitutional sin.

Most telling is that the details of this supposed compromise will probably not congeal into a binding new rule until — you guessed it — after the election. The process that produced the current mandate likewise began with lofty assurances from the president himself, repeated just months ago, that it would protect the right of conscience. We all now know how that turned out. Fool me once, shame on you. Fool me twice? Not so fast.

— Hannah Smith is senior counsel at the Becket Fund for Religious Liberty, the only law firm that has challenged the mandate in three separate federal lawsuits. 



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