On Friday, the Obama administration issued a proposed rule change following from the supposed accommodation they promised a year ago to the controversial, coercive Department of Health and Human Services abortion-drug, contraception, and sterilization mandate. Mark Rienzi is a professor of constitutional law at the Columbus School of Law at The Catholic University of America and an attorney at the Becket Fund for Religious Liberty, and he talks about why the religious-liberty problem remains.
KATHRYN JEAN LOPEZ: Was Friday’s release from the Department of Health and Human Services on the controversial abortion-drug, contraception, sterilization mandate an “olive branch” as the headline on E. J. Dionne’s column in the Washington Post puts it?
MARK RIENZI: 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.”
LOPEZ: The Notice of Proposed Rulemaking says that the government is changing some parts of the “religious employer” exemption. Isn’t that a good thing?
RIENZI: It is a welcome development, but one that even the administration says does not actually broaden the exemption to any employer who was not previously covered.
When the administration first announced the “religious employer” definition in 2011, they said churches could only qualify if they turned away needy people of other faiths who sought their help and if they refused to hire people of other faiths. This was always perverse: Who thinks that it is a good thing to force a Catholic soup kitchen to turn away hungry atheists or Jews?
Thankfully, the administration has dropped this terrible idea that religious groups should refuse to help their neighbors.
Why did they do this? The explanation is downright bizarre. Although the government itself originally wrote this turn-away-your-neighbor requirement, it now says it “was never the Departments’ intention” to exclude religious entities just because they “provide charitable social services to persons of different religious faiths.” This is remarkable because it was the departments themselves who expressly included precisely that limitation in the current final rule.
In any case, the administration is also quick to point out that its proposed change to the definition will have absolutely no impact on the number of entities qualifying for the “religious employer” exemption. As the departments explain, the new 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.” This is because the exemption is still only available for churches and religious orders, and not to non-profit 501(c)(3) organizations, such as schools and hospitals.
So this proposed change rids us of a requirement the government said it never really meant, and will have no impact at all on who is exempt. That doesn’t mean the change is not welcome: It was always an embarrassment that our government would purport to tell people that they were not religious enough if they served their fellow human beings in need. But as a practical matter, the change is essentially symbolic.
LOPEZ: Why is the National Catholic Reporter describing what HHS released Friday as a “new, broad compromise”?
RIENZI: Lots of news organizations ran with that story because the administration said it was announcing a new, broad compromise. The president has a powerful bully pulpit, and part of that is the ability to control how and when he announces rules, including how the rules will be spun to the press.
But a closer look at the 80-page document released Friday shows that it is not “new,” it is not “broad,” and it is not a “compromise” at all.
First and foremost, the proposed rules do nothing at all to protect religious business owners who cannot provide insurance for abortion-inducing drugs. The administration takes the position that anyone who earns profits cannot possibly engage in religious exercise. Logic and experience, of course, prove the opposite is true. Muslim business owners following Islamic law cannot sell alcohol or pork, and cannot take out certain types of business loans. Certain Jewish business owners cannot sell leavened bread in their stores at certain times and cannot operate their stores (or even hire others to operate their stores) on the Sabbath. For-profit medical offices and hospitals have long been permitted to assert religious objections to involvement in abortion. Profit-making doctors are subject to AMA ethics requirements forbidding them, on ethical grounds, from participating in capital punishment, even indirectly. People of all different faiths can exercise their religion in their work.
The government’s complete omission of these people from the “accommodation” is surprising because the issue was obviously on the administration’s radar screen. In fact, over the past year, the administration has been fighting religious-liberty claims by for-profit businesses and their owners in at least 14 different suits and it is losing badly. To date, eleven of the 14 for-profit business plaintiffs have received preliminary injunctions from the federal courts.
A truly “new, broad compromise” would have recognize that people should be free to earn a living without having to give up their religion. Yet the administration ignores these citizens entirely, as if they silently trade in their religious freedom when they open shop in the morning. Indeed, while the administration promises that it will “insulate” and “protect” non-profit objectors from “contracting, arranging, paying, or referring for such coverage,” it continues to assert in court that contracting and paying for such coverage imposes no burden at all on religious business owners.
Second, even for the non-profit entities who might receive the claimed “accommodation,” the promised change is not new and is not a compromise. A year ago, the president announced the same proposed accommodation by which non-profit religious objectors would be spared from having to sign a contract that included the words “contraceptive” and “abortion-inducing,” but the same insurers would be ordered by the federal government to provide the same drugs to the same employees as a result of that same contract. This is essentially the same policy that Friday’s announcement moves one step closer to becoming law.
Here is how that policy proposal was greeted by the United States College of Catholic Bishops when first announced last year:
However the term “religious organization” is ultimately defined, the Administration’s suggested “accommodation” for such organizations, as described in the ANPRM, will not relieve them from the burden on religious liberty that the mandate creates. Under the ANPRM, the central problem for insured plans remains: conscientiously-objecting non-exempt religious organizations will still be required to provide plans that serve as a conduit for contraceptives and sterilization procedures to their own employees, and their premiums will help pay for those items. For self-insured plans, the Administration has invited comment on a number of different approaches. As a practical or moral matter, none of them will solve the problem that the mandate creates for non-exempt religious organizations with a conscientious objection to contraceptive coverage.
The bishops also explained that the proposal would effectively make these drugs available to the minor children of their employees, without parental notice or involvement. As to the suggestion that the bishops’ distaste for this proposed “accommodation” was unclear, the bishops filed more than a dozen federal lawsuits challenging the mandate just three months after the accommodation was first proposed.
Their objection was joined by religious leaders across the spectrum. The Orthodox Jewish Union filed comments explaining that they “are troubled by a regulation that creates an exemption only for religious organizations that are ‘religious enough’ or that act in a government-approved way.” The Union continued:
Even if some religious organizations bend to the Departments’ will, being forced to do so will drive a wedge between the government and many of this country’s most important and significant civil institutions. It would be very regrettable, and will engender a predictable and lasting bitterness, if the Departments finalize a regulation that forces good-hearted and religious citizens to choose between their conscience and the law. In the end, no one will benefit from a government that imposes that choice upon many of its kindest and most productive citizens.
Sister Carol Keehan of the Catholic Health Association, a supporter of the president and the Affordable Care Act, likewise is on record opposing the alleged accommodation. Sister Keehan and CHA explained that, instead of this accommodation, “the government will need to develop a way to pay for and provide such services directly to those employees who desire such coverage without any direct or indirect involvement of religious employers.”
Nor were these objections limited to religious leaders. When the accommodation idea was announced last year, the head of the Economics Department at Harvard University explained that the proposal was mere “semantics” and made no functional difference “other than using slightly different words to describe it.” Another economist summed up the attempt to sell this approach as an accommodation with a blog post titled “Your President Hopes You Are Stupid.”
Yet this proposal is precisely what the Friday announcement moves forward. It is hard to call re-offering the same alleged solution, which has already been publicly rejected and prompted many federal lawsuits, an attempt at “compromise.”
LOPEZ: What happens next?
RIENZI: The for-profit cases which the administration is currently losing 11-3 will move on in the courts of appeal. This proposal does not harm those lawsuits, because those plaintiffs get nothing under it.
The non-profit cases will likely continue as well. The administration could have solved all of those cases simply by giving them the exemption that is required under federal law. Because the government instead offered the “accommodation” scheme, the plaintiffs in those cases will presumably sit down to think about whether the proposed accommodation satisfies their religious objection. The glorious thing about religious liberty in America is that everyone gets to reach their own religious conclusions: It doesn’t really matter what religious leaders or the president think the right answer is. So it is theoretically possible that some employers who had religious objections to contracting for this coverage of abortion-inducing drugs would have no religious objection to the proposed arrangement. If such employers exist, those suits will go away. But I suspect that most cases will continue through the courts: The administration has made clear that it is not going to let these religious objectors escape involvement in providing these drugs, which means most of these plaintiffs will need to seek protection from the courts.
LOPEZ: From the point of view of religious leaders and religious plaintiffs, is there any winning here? Is there any point in continuing to fight?
RIENZI: Of course there is winning. As the Declaration of Independence explains, governments are created by the people to protect the people’s inherent rights. Our religious freedom is not some government benefit to be doled out selectively by political leaders. Nor is it some bargaining chip to be used or traded in at some point before moving on to the next issue up for debate. Religious freedom is a fundamental right that pre-exists government, a right of all human beings to seek and live out higher truths as they understand them, subject only to truly necessary limitations by government. Continuing to fight to preserve religious freedom for themselves and for others is a noble and necessary contribution religious leaders of all faiths can and should make.
LOPEZ: What about the small-business man who has a problem with this mandate? Does he just need to get with the program?
RIENZI: No. If the religious business owner cannot comply with an unnecessary mandate like this, he should fight it. Just “getting with the program” is what my grandfather had to do when the authorities in his house made him eat last night’s dinner for breakfast. In public life, just “getting with the program” is what subjects do. But in a free country there are no subjects, just citizens. Citizens do not and should not quietly acquiesce when the government deprives them of their fundamental freedoms.
One way businesspeople can fight back is by suing in court. Another is by publicly talking about the ways in which the mandate jeopardizes their business and their employees’ health insurance. The administration is threatening businesses that create jobs and provide health insurance, and suggesting that it can put them out of business for their sin of taking the wrong view about abortion. The public should hear more about how the administration is willing to pursue abortion orthodoxy even if it means destroying thousands of jobs.
LOPEZ: Why is there not more outrage about all of this?
RIENZI: The proposal was 80 pages long, announced on a Friday, and full of regulatory legalese. That means it necessarily takes a while before people can fully understand what the proposal contains, and what it does and does not do. I suspect that as the details sink in, we will see the same levels of opposition to the accommodation we saw last June, when even the president’s prior allies were publicly saying he was wrong about religious liberty.
LOPEZ: Is this really and truly about religious freedom? Or is that just a convenient way to spin it?
RIENZI: This fight is only about religious freedom and always has been. Before the mandate took effect last August, every woman in America already had easy access to these abortion-inducing drugs, both by prescription and over the counter. Yet how many of these plaintiffs had filed religious-liberty lawsuits about it? Exactly zero.
The claims have always been all about the fact that the government is suddenly trying to force these employers to do something their religion forbids: to make themselves the conduit for their employees (and their employees’ minor children) to receive drugs that destroy human life. In a free and pluralistic country, our government should be able to respect that some people have religious objections to participating in the use of these drugs, just like we respect people who have religious objections to participating in capital punishment, assisted suicide, or war.
— Kathryn Jean Lopez is editor-at-large of National Review Online.