Wassup with the HHS Mandate?

by Kathryn Jean Lopez

Catholic University law professor and Becket Fund lawyer Mark Rienzi explains in a Q&A here

He offers an image for Friday’s release:

My grandfather used to tell me a story about how parents got children of his generation to eat their dinner without complaining. If my grandfather didn’t like his dinner, his parents simply said: “That’s okay, son, you don’t have to eat it.” The next morning, when my grandfather sat down to breakfast, he’d get the same plate of food he’d rejected the night before, just colder, more stale, and less appetizing. And if he didn’t eat it then, he’d get it for lunch, and every meal thereafter, until he finished it. Soon, my grandfather learned who was boss, and he stopped refusing his dinner.

Friday’s announcement from the administration was an “olive branch” in the same way that cold, stale plate of leftover dinner was an “olive branch” to my grandfather the next morning: It is simply a re-offering of the same unappetizing ideas that have already been explicitly rejected, in hopes that religious objectors will swallow now what they would not swallow a year ago.

That turn of events is a profound disappointment for those of us who had hoped that the administration would reach the easy, obvious, and legally required solution of just exempting all religious objectors. The government obviously has many ways it could get these drugs to people without forcibly involving religious objectors. Instead, the government took a year to think about the issue and came back with essentially the same proposal everyone already rejected last spring. That is an odd kind of “compromise.”

And Kim Daniels writes at Catholic Voices USA writes (full disclosure: I’m a director there): 


Most objecting religious employers are in the same position they were before Friday, faced with a choice between giving up their religious beliefs or facing crippling government fines.

Take that narrow exemption. Its most objectionable language has been removed, but functionally the exemption hasn’t been broadened at all. The administration admits as much, stating that “this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.” In other words, colleges, hospitals, and most social service organizations are still not exempt from the mandate.

Or take the accommodation for religious non-profits. Once again the administration ignores many groups’ view that it’s not just about the money: facilitating access to objectionable goods and services violates their religious beliefs as well. Instead of responding to this concern, the administration offers an updated version of its accounting gimmick, requiring the religious groups’ insurance companies to automatically issue separate policies to cover contraception, sterilization, and abortion-causing drugs. It remains unclear where HHS gets the authority to force insurers to issue these policies, and who will ultimately pay. And as before, those who self-insure are left without a concrete, workable solution.

What about for-profit employers? Once again, the latest proposal fails to protect their religious freedom. But when it comes to religious liberty, why should it matter whether an organization is run as a non-profit or a for-profit entity? Private employers have raised strong religious liberty claims that have yet to receive adequate answers.

Common-sense conscience protections are routinely included in legislation that raises religious liberty concerns. Had that path been pursued at the outset, this intractable controversy could have been avoided. Instead, religious employers still struggle to be heard. With this latest round of mandate revisions, the administration has missed another opportunity to take religious liberty seriously.

You saw our editorial yesterday? And Jim Capretta’s response to the E. J. Dionne column I was talking about here

Please, America, don’t give up and in on our first freedom

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