Bench Memos

Inept NYT Op-Ed Defending HHS Mandate—Part 2

Dorothy Samuels’s legally inept op-ed defending the HHS mandate is replete with other distortions. To cite a few:

1. Samuels contends that Catholic bishops are making a “specious claim to impose their religious views on millions of Americans who do not share them” and “[i]n essence … are arguing that they are above the law and their beliefs should be elevated over pressing societal interests.”

That’s nonsense. What Catholic bishops are making is a claim that they and other objecting religious employers shouldn’t be dragooned to violate their own religious convictions. There is no good reason why the government can’t pursue its interest in marginally increasing contraceptive access without conscripting objecting religious employers. Far from “arguing that they are above the law,” those making this claim are defending their actual legal rights under RFRA and the Free Exercise Clause and the broader tradition of religious liberty that Samuels seems so eager to trample.

2. Like many defenders of the HHS mandate, Samuels asserts that the “original rule … exempted churches, mosques, and other houses of worship.” That’s simply not true. The so-called “original rule,” which is the rule that HHS formalized as a final rule on the very day that the White House announced its intention to tweak the rule at some point down the road, provides that a religious employer will be eligible for the exemption only if it

(1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.

What reason is there to believe that a house of worship that, say, provides shelter to the homeless and English language classes to immigrants or that hires lots of staffers irrespective of their religious beliefs would be deemed to satisfy this test? There simply is no blanket exemption even for “churches, mosques, and other houses of worship.”  

3. Samuels also claims that the Obama administration “has revised its original rule … and now also relieves colleges, hospitals, charities, and other religiously affiliated groups from having to provide contraceptive coverage directly.” She claims that this supposed revision makes the mandate less vulnerable to legal attack. She’s wrong in multiple respects:

a. No actual revision has yet been made. Just vague promises evidently designed to defuse the controversy until after the election.

b. Samuels contends that the proposed revision would “put the burden on insurance companies to offer contraceptives free of charge.” But how that would happen, without the insurance companies charging a premium that requires the objecting employers to pay for the contraceptives, remains a mystery. Nor is it evident what legal authority the Obama administration would have to impose such an obligation.

c. The many entities that self-insure, like EWTN (one of the plaintiffs challenging the HHS mandate), wouldn’t benefit from this proposed revision.

d. There is no reason to think that the proposed tweak materially affects the religious objection that the employers have to facilitating the provision of contraceptives, abortifacients, and sterilization services to their employees. Exactly as with the original mandate, once an employer selects an insurance company to provide coverage to its employees, that insurance company will provide coverage of objectionable services to those employees. The employer who objects on religious grounds to providing coverage of those services is still being compelled to do exactly that.

e. Even if the tweak were meaningful, it would extend only to some as-yet-undefined category of nonprofit religious organizations. It does nothing to respect the religious freedom of other employers.

4. Samuels contends that the legislative relief that opponents of the HHS mandate are seeking “is an outrageous assault on the First Amendment.” But it’s the Obama administration’s attack on the legitimate rights of objectors under the Free Exercise Clause (as well as RFRA)—and Samuels’s support of that attack—that is the “outrageous assault.”


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