Proponents of Obamacare’s anti-conscience mandate on preventive care kept telling critics to wait and see what the final rules held. As of Friday afternoon, we now know. It wasn’t worth the wait.
If there was a question Friday morning whether the Obama administration might cede ground, there was no doubt at the end of the day. They haven’t budged.
Despite what President Obama said at his White House press conference, the actual regulations make permanent the “interim final regulations” issued August 3, 2011 — the ones that sparked the furor in the first place.
Prefaced by 17 pages of the kind of rhetorical squid ink that President Obama defensively deployed at his press conference, the words that have the force of law appear on pages 18 to 20. That’s where the actual amendments to the Code of Federal Regulations are made by three departments — Treasury, Labor, and Health and Human Services — that Congress previously granted joint oversight of employer health plans.
The bottom line is this: “Accordingly, the amendment to the interim final rule with comment period amending 45 CFR 147.130(a)(1)(iv) which was published in the Federal Register at 76 FR 46621-46626 on August 3, 2011, is adopted as a final rule without change.” [Emphasis added.]
Translation: The Obama administration Friday afternoon put into federal law the very regulation that drew objections from almost 200 Catholic bishops, some 50 religiously affiliated colleges and universities, 65 North American bishops of Orthodox churches, numerous other Jewish, Evangelical and Lutheran leaders, and even some liberals — and without changing so much as a comma.
From this point forward, any changes to this regulation have to go through the formal regulatory process all over again.
The administration admits as much in the preamble to these regulations when it states that Treasury, Labor, and HHS “plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing. Under this approach, the Departments will also require that, in this circumstance, there be no charge for the contraceptive coverage.”
Thus, instead of delaying final regulations until they could be revised to reflect the prospective changes President Obama outlined Friday, the administration went ahead and locked into regulation its original position, accompanied by a (non-binding) promise to revisit the issue.
Furthermore, even assuming that the administration followed through in good faith on this promise, it still leaves the technical problems identified yesterday in a Heritage Foundation blog post — how to handle employers that “self-insure” and don’t buy coverage from an insurer — that make the president’s proposal unworkable.
Meanwhile, the administration simultaneously issued “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans, and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing . . .” (yes, the title keeps on going for another two lines).
Bottom line on the guidance: The administration has said it won’t enforce the new law on religious employers until after August 1, 2013. However . . .
Let’s say you are one of those “certain employers” — e.g., the director of a Baptist food bank, headmaster of a Jewish school, or operator of a crisis-pregnancy center — and you wish to take advantage of this “grace period.” The guidance says that you not only have to certify to HHS that you are eligible, but you also have to include the following notice of contraceptive coverage in the information you distribute to your employees at their next health-plan enrollment:
NOTICE TO PLAN PARTICIPANTS
The organization that sponsors your group health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing. During this one-year period, coverage under your group health plan will not include coverage of contraceptive services.
Meaning what? It means that religious institutions such as Colorado Christian University, Belmont Abbey College, and EWTN — all three of which are represented by the Becket Fund for Religious Liberty in lawsuits against the federal government over the anti-conscience mandate — must send this notice to their employees simply to be allowed the one-year reprieve.
The strong implication is that such religious employers will get that and no more.
As for all the rest of what we heard in the Obama administration’s media blitz to fend off criticism, these final rules do not back it up. The rest of the content in these documents — about working over the next year to modify this regulation and accommodate objections — are just so many words: words that have no force of law, and are simply promises and obfuscating squid ink.
— Ed Haislmaier is senior research fellow in health-policy studies and Jennifer A. Marshall is director of domestic-policy studies at the Heritage Foundation.
In the face of this Administration, the only moral and practical course is massive civil disobedience. People simply have to stop following Federal regulations - in a wide variety of areas - until the laws become Constututional again.
(Irony alert: captchas reads "black and white.")
Reply to this commentLinkReport AbuseAye.
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Reply to this commentLinkReport AbuseThat's precisely why the original "accommodation" was nothing more than a delay in implementation until after the election -- Obama can't afford to have churches across the country launch a massive "civil disobedience" right before of the election.
After Nov 2012, he hopes it will be too late!
Reply to this commentLinkReport AbuseI don't think he was ever in danger of having churches launch any kind of civil disobedience - at least not any Catholic churches. The Bishops lost their backbone long ago when it comes to standing firm against left-liberalism. As for Obama's hopes for re-election, I fear those hopes are less and less unfounded as the November approaches. I'd love to be wrong, but I don't think I am.
Reply to this commentLinkReport AbuseI don't always agree with her but I have to give her credit. In her WSJ column yesterday, Peggy Noonan predicted that when there was outcry about these policies from the Church and its supporters, Obama -- for whom this is a base-pleasing maneuver --- would begin a number of transparent pullbacks designed to mollify the faithful with false promises, while buying time until the election.
Reply to this commentLinkReport AbuseIt's just like the health care takeover law itself. Once enacted, by whatever means, the issue is done. "I won," he said. As far as he's concerned, that's all that matters.
Up to a point, he's right. Clawing our way back to something resembling freedom after all this is going to be a long, uphill, struggle.
Reply to this commentLinkReport AbuseVery important to get this information out. First of all to the like minded, and then to the press, and then to the whole country. Is this appearing on the pro-life sites, Weekly Standard, Red State, and all the rest of the major blogs? The Friday compromise was 100%--or at least 99.9%--farce.
Thanks, Ed and Jennifer, for your hard work on this.
Reply to this commentLinkReport AbuseAre you suggesting that the org choosing to opt out of providing contraception coverage shouldn't have to notify their employees they are being denied said coverage? Having to put in a disclaimer with that years coverage paperwork doesn't seem like much of a burden. it seems odd that in your concern about the well being of these organizations there so little thought given to the interests and well being of their employees. They have a right to know what benefits they are being denied by their employer.
Reply to this commentLinkReport AbuseThey aren't being "denied" anything. At a minimum, health care insurance is a gift from your employer. Yes, you might pay a little but it is still a major gift. At most, it is a negotiated benefit that significantly raises the cost of your employment to your employer. Since when is any of that the Federal government's business? I know that Obamacare states that everything is their business, just like the Commerce Clause is interpreted by Liberals to cover all commerce, not just commerce between states. Interesting enough, the Commerce Clause doesn't cover health insurance. In fact, Congress voided the Commerce Clause specifically for insurance. This is one reason insurance is so expensive, a lack of competition. When did Congress get the right to void the Constitution?
The only healthcare the federal government has any business looking at is the healthcare for their (make that OUR) employees.
As far as the "gift" nature of healthcare, I am self employed. I spend over $1,000/month for healthcare insurance (a family of 3). Perhaps if Congress would tend to their business I could save money. Maybe Congress should be restricted in what they can do (The Constitution). Maybe they shouldn't be able to do anything until a budget is passed!
Reply to this commentLinkReport AbuseNo Bob. Don't be thick. Ed and Jennifer state plainly that the problem is that the statement suggests that this is just a one-year deferment. "The strong implication is that such religious employers will get that and no more," meaning one year and no more.
Reply to this commentLinkReport AbuseThe Obama/Sibelius farcical press conference where they have announced a “compromise” which is patently nothing other than an absurd bit of posturing is extraordinary only by their shamelessness.
It’s like they are playing a children’s game of hide and seek where just by simply muttering ‘pax’, the eyes and ears of those they are playing with are magically suspended from seeing and hearing.
That by the afternoon we discover the pretend 'compromise' isn't, only adds to the surreal nature of the kabuki performance.
Reply to this commentLinkReport AbuseEven if the Obama exemption was sincere and permanent, what good is it for a person of faith that works for a secular company, as nearly all people of faith do?
All the faith "protections" of Obamacare transfer only to the owner of a company and NOT to the employee. If you're an Eastern Orthodox HVAC repairman who does want to be forced to pay for abortifacients or contraception in your monthly contribution to your insurance premiums, you have no exemption whatsoever. You are left with having to quit your livelihood to go search for an employer who will bestow HIS exemption onto you. Even if Obama exempted all employers who request a religious exemption, there is still no freedom of conscience for the individual.
Reply to this commentLinkReport AbuseWhy are abortion and contraception the only moral issues that get special treatment? Why did my tax dollars have to pay for the Iraq War, which needlessly led to the deaths of thousands of innocent people?
Reply to this commentLinkReport AbuseI see that Mark Steyn's piece is titled "The Church of Obama," which was my precise thought after reading the above commentary.
People are incredulous when I tell them that every morning of my public school education in suburban New Jersey, we said the Lord's Prayer and the teacher read from Psalms.
Yesterday I read a movie review that included the comment that the real couple that the movie was based on had saved their marriage by relying on their deep faith, but fortunately the movie makers had left out that part of their story.
It is horrifying to see the Judeo-Christian underpinnings of Western civilization scorned and cast aside.
Reply to this commentLinkReport AbuseThe Stupak Fig Leaf was never introduced to the pop culture as the fraud that it was, so it is unlikely that the Bishopric Squid Ink will ever get the scrutiny it deserves.
Even the WSJ news page today runs a misleading headline saying POTUS backtracked. He has not, and any fair telling of this would require stating that up front.
But there will not be any fair telling, so get used to it. If you want to stand for principle, muster your courage and prepare to fight alone. Not saying that to discourage anyone; I say it to prepare you. The squid ink is being printed and it must be challenged.
Reply to this commentLinkReport AbuseFor we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places.
Ephesians 6:12
Reply to this commentLinkReport AbuseIt's both plain and simple. What Jeff Perren said: CIVIL. DISOBEDIENCE.
Reply to this commentLinkReport AbuseI am not a Catholic. I never have any intention of being one. By the standards of most denominations, I am not a Christian. I am not overly hard over on the contraception issue, as regards use by individuals. I do not support making others violate their beliefs. I do look at things from a long term political strategy viewpoint, which could lead me to say things as an Iago if I was not aware of the threat to my integrity. I say all this as a way to acknowledge I am not exactly an unbiased observer--I have a dog in the fight, and that fight is stopping Progressive liberalism.
And what I am going to say on this contraception issue is that whether or not the Catholic church continues this belief or not is entirely over to the Vatican, but they need to understand that from a practical perspective unless they fight back hard it is my opinon that in the United States they will lose on this issue in ten years or so. They know far more than I do that American Catholics in the mass sometimes honor some of the teachings of the church more in the breach than anything else, and that any attempt to crack down might lead to less influence and not more, fewer American parishioners and not more. I get that.
But the blunt fact is that this recent HHS ruling should be seen as what it functionally is--an attempt to bypass the church hierarchy and, going directly to the faithful, steer the American Catholic majority to a viewpoint that many of them already tacitly support. In other words, to lead the American Catholic church in a more American direction, to set up an alternative "American Vatican" (in the form of government regulations) that will make the real rulings for American Catholics (as far as how they actually act in the world) while allowing the nominal hierarchy to say whatever it cares to on Sunday mornings. In other words, to rob the American Catholic church of any real *practical* role in American life, unless that role is in harmony with other Progressive liberal values. To prevent the official Church from ever again being a symbol of honorable disagreement with Progressive values, in the sense that it simply will not do things as the Progressives want them to be done, and otherwise does good works in the real world visible to others. To have the church retreat to the Churches, where it can rail away all it wants on Sundays, impotent and ineffective--unseen by others, not doing good works in the world where it can be seen as a counter to the Progressive vision. In short, for the church to be neutered as a practical symbolic counterweight to Progressivism, while the parishioners still happily vote Democratic.
This is where I take pause and caution that I could be seen as an Iago for what I am about to say--but it is my reasoned belief that unless the Vatican and Pope take substantial actions--including excommunications of politicians and use of other elements of church discipine--then this is the future of the American branch of the church: to have the American faithful attend your masses, but to really have the Democratic party as their de-facto head, when it comes to application of faith to real world issues.
In other words, unless the church hierarchy starts fighting back a little harder, I think you are going to lose in the long run. But I admit my judgment is biased by a desire to have a blow struck against Progressivism, so I cannot say with absolute certainty I am right. I obviously would love nothing more than the fig leaf of cover given by church membership to be removed from politicos such as Nancy Pelosi. So the church is going to have to make its own determination and call. But I do caution you not to mistake your foe--they are indeed trying to steer the faithful in a direction more palatable to their beliefs.
The Democratic Party is, in my best judgment, militantly trying to be the Pope of all Americans; the determiner of all things proper; the excommunicator from American life of those who will not abide by its rulings. Why the Catholics think they would be immune from such a mind-set is beyond me.
Reply to this commentLinkReport AbuseGosh. Reminds me of "reasonable gun laws"...
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