Over the past several days, it’s become clear that the White House’s talks with religious leaders — over the “accommodation” to HHS’s recent regulations on mandatory contraceptive benefits in insurance plans — are not going terribly well.
The president of the Catholic Bishops’ conference, Timothy Cardinal Dolan, penned a letter to his fellow bishops last Friday that made it clear the White House has offered no meaningful concessions in the talks so far — and that he has no expectation that they ever will. An “administration official” responded by leaking to the press his or her view that the bishops are being intransigent in the meetings. Moreover, the press is also reporting that — surprise! — White House talks with “Catholic officials from other institutions” are going much better than are those with the bishops. So well, in fact, that Health and Human Services Secretary Kathleen Sebelius has indicated that she hopes the supposed accommodation will be included in a revised regulation “in the near future.”
What to say about all this?
For starters, if it is true that certain Catholic “leaders” are in discussions with the White House, and working at cross purposes with the bishops, that would be, well, a bit hard to swallow, to put it mildly. This is not your usual political fight. This is a defining moment for the country, as Cardinal Dolan and the bishops seem to recognize. They are in a struggle for nothing less than the future of religious liberty in America. Breaches of trust at this time, in this fight, after everything else that has already transpired in the health-care battle, would almost certainly cause irreparable harm. That would serve no one’s long-term interests.
The other point is that the White House has, so far, been successful in using the offer of this supposed accommodation to create great confusion in the press and in public opinion. Based on how the press has covered the issue — this story from the Washington Post is a good example — it would be hard to blame the average American for thinking that the president has already offered a solution that will fix the problem.
But, of course, nothing could be further from the truth. Unfortunately, until it is widely understood that the president’s accommodation is actually no such thing, confusion will continue to reign. Therefore, it is critical for those trying to defend religious liberty against the administration’s aggressive moves to expose the accommodation as the deception that it is, as quickly as possible.
Here, it’s worth repeating some of the basic facts. On February 10, on the same day that the administration announced it wanted to craft the so-called accommodation, it finalized the rule that had been previously issued with no change. That rule includes the infamous four-part test by which HHS bureaucrats will determine which houses of worship are pure enough to warrant a full exemption from the mandatory coverage of abortion-inducing drugs, sterilization procedures, and contraception. It is also the same rule that provides no exemption from the mandate for religious employers that provide services to the general public. So, as matters stand today, the Obama administration has implemented rules that even it concedes infringe on the traditional rights of religious employers.
Moreover, as has been pointed out by many others, the “accommodation” that was floated by the president on February 10 — which was described as moving the obligation for covering the products and services in question from the employers to the insurers — would do nothing for those religious employers who self-insure and therefore act as both employer and insurer. The administration has yet to come up with a credible response to this critique.
But even more fundamentally, the entire concept of this “accommodation” is basically hopeless because it cannot solve the core problem for the religious employers who are objecting to this obligation. As articulated by the administration, the government would force insurers to cover the products and services that the employer objects to even though the insurance contract between the insurer and the employer excludes these products and services. Thus, from the perspective of the employer, if it chooses to offer health insurance to its workers, it will know in advance that the coverage will, by definition (because of the government’s rules), be coverage that pays for the problematic products and services. Creating this artificial movement of the regulatory obligation from the employer to the insurer does not change this fundamental reality. And so this supposed accommodation really achieves nothing.
It has also been suggested by proponents of the accommodation that the cost of providing the mandated coverage could somehow come out of the insurance company’s resources and not from employer premiums. But that’s not true either. Under the supposed accommodation, when an insurer is selling a policy to an employer who objects to these products and services, the insurer will know in advance that the government will nonetheless require it to pay for these products and services when the enrollees get them from doctors and pharmacies. Consequently, the premium charged by the insurer to the employer will necessarily reflect the full cost of what the insurer is expecting in terms of benefit claims, including the explicitly covered items in the contract with the employer as well as the products and services the insurer must cover to comply with government regulations.
Finally, though the health-care law delegates great authority to the president, it doesn’t give him the authority to force privately owned insurance companies to pay for products and services that aren’t covered in the contracts that the insurers have with employers. So, even if this accommodation were worth something, which it isn’t, it almost certainly won’t work in practice because it has no basis in law.
Give the White House some credit though. Over the past month, this supposed accommodation bought them a reprieve from the pressure they were under because it fooled a lot of people. But, sooner or later — one hopes sooner — it will be exposed for the empty gesture that it is. At that point, it will be possible to frame the issue again as it should have been framed all along: as an unprecedented and unconstitutional assault by the administration on the traditional role of religious organizations in American life, for which the appropriate remedy is a sharp rebuke by the electorate at the ballot box.
— James C. Capretta is a fellow at the Ethics and Public Policy Center. He was an associate director at the Office of Management and Budget from 2001 to 2004.