Today the Obama administration’s Department of Health and Human Services has issued a final “accommodation” rule concerning their Obamacare abortion-drug, contraception, female sterilization mandate that has brought so many religious organizations to Court, as well as business owners. Today’s release comes after the Hobby Lobby’s Supreme Court win and is meant to address the likes of the Green family – business owners’ whose consciences mandate the coercive regulation cannot be a part of the way they operate.

I asked O. Carter Snead, William P. and Hazel B. White Director of the Center for Ethics and Culture and professor of law at the University of Notre Dame for his reaction:

Well, this finalizes the so-called “accommodation” by which the government makes the health plans of religious non-profits the channel through which objectionable drugs and medical procedures are provided.  It bears reiterating – these benefits are only available to plan members.  For self-insured plans, the government by fiat (and contrary to the terms of ERISA [The Employee Retirement Income Security Act of 1974] – the statute that governs self insured plans) changes the very terms of the employer’s health plan instrument, directing the third party administrator (the agent and fiduciary of the employer!) to do very thing the employer opposes.  In effect, the final rule allows the government (through the Department of Labor) to hijack the employer’s own contract and forcibly modify it in a way that contradicts the sincerely held beliefs of the employer.  For religious non-profits that contract with insurance companies to provide coverage, the decision to provide health care for workers triggers the provision of the objectionable drugs and procedures without cost sharing.

The regulation extends this same phony accommodation to closely held for profit entities like Hobby Lobby.

The government implicitly acknowledges that this phony “accommodation” entangles the objecting religious nonprofits in the provision of the drugs and services in a way that compromises their religious identity and witness.  How so?  Because the government does not subject churches to the same arrangement; they simply exclude them from the mandate altogether.  If the “accommodation” effectively separated the religious employers from the provision of these drugs and services, why not extend the same arrangement to houses of worship?  

The most galling thing about this coercion is that it is wholly unnecessary to achieve the government’s purposes.  They could easily provide free contraceptives, etc., to people through numerous other channels just as easily and without involving objecting religious nonprofits or closely held for-profits.  They could do so through Title X funding, through tax credits, even through the state and federal exchanges created by virtue of the ACA — which include multiple insurance companies who are already providing these drugs and services without cost sharing.

Because this accommodation still amounts to a substantial burden on religious employers, and because there are alternative, less restrictive ways for the government to achieve its goal, I remain hopeful that the courts will see their way clear to providing relief under the Religious Freedom Restoration Act.