Not a Real Olive Branch

Original Article

The Obama administration pulled another fast one last week, announcing its much-anticipated “compromise” on the free-birth-control rule as it affects religious employers opposed to contraception. There was hope in some quarters that the administration would back off its narrow religious exemption. Alas, a careful reading of the proposed rule shows that instead of offering a true modus vivendi, the administration launched a stealth power grab. Not only does the “compromise” maintain the previous aggressive government intrusion into the religious sphere, but it uses the controversy as a pretext for increasing Obamacare’s control over private insurers.

To understand the game that is afoot, a little history. Before last year, health insurance was regulated at the state level, and most of the states that required certain policies to cover birth control also offered conscience exemptions. Then came Obamacare. In February 2012, interpreting its authority under the new law, the Department of Health and Human Services issued a rule requiring all employers with 50 full-time workers or more to provide them health insurance covering contraception, sterilization, and morning-after pills free, with a conscience exemption limited to churches or associations of churches as well as the “exclusively religious activities” of these groups. Catholic employers were the most conspicuously affected, since the Catholic church’s position on these issues is well established. Thus, under last year’s rule, the Catholic Ecclesiastical Province of Newark presumably would not have had to provide free birth control, but most Catholic schools, universities, hospitals, and other charities would.

This ignited a firestorm. Bishops protested. Civil libertarians decried the assault on the First Amendment. Lawsuits were threatened. With an election near, the Obama administration delayed the effective date of the rule as it applied to these objecting religious organizations until August 1, 2013, and promised to fashion a new approach. The rule went into effect for all other employers on August 1, 2012.

Now the new rule has been unveiled. Simply extending to the schools and charities the same exemption churches enjoy would have been the obvious, most respectful, and constitutionally appropriate resolution of the controversy, short of doing away with the mandate entirely. But that isn’t the Obama way.

Instead, there will now be two classes of religious objectors under the rule. The first are the churches previously exempted. All other religious nonprofits opposed to contraception—the ones about which the big fuss was made—will receive a mere “accommodation.”

This accommodation is smoke and mirrors. It requires all female employees (and eligible dependents, among them teenage girls) of the objecting groups to be covered for free contraception, like it or not. Here’s how the accommodation will work:

  • The employer must comply with the provisions of the Affordable Care Act and purchase a general group health plan.
  • The employer must certify to its insurance carrier that it objects to contraception for religious reasons.
  • The insurance carrier then must “automatically enroll participants and beneficiaries in a separate health insurance policy that covers recommended contraceptive services.”
  • The insurance carrier must provide this supplemental policy to employees free of charge.

Thus the religious employer’s purchase of health insurance—required by law—automatically triggers the free coverage of contraception.

This means that in many cases, even nuns will be insured for birth control. The objecting organizations remain complicit in furthering an activity their faith deems sinful—with no opt-out other than to break the law by not buying health insurance and then face stiff fines.

The proposed rule also impinges on the liberty of the private sector by compelling insurers to provide a free product to specified organizations for the purpose of furthering the administration’s goal of “gender equality” (as Department of Justice lawyers have argued in legal briefs). Thus, insurers will be able to charge companies like Google and Sears for contraception and sterilization coverage. They will also be able to charge churches that are not doctrinally opposed to birth control and thus do not qualify for either exemption or accommodation. But insurers will not be allowed to charge Catholic Charities or Georgetown University, while still having to provide contraceptive coverage—an act of blatant conscription.

Defenders of the new approach excuse the fiat by noting that issuers of free insurance policies “may qualify for a reduction in the user fee” they pay for participating in federally facilitated insurance exchanges. But note the paper-pushing required to obtain the offset. Insurance companies providing free birth control coverage must, among other bureaucratic reporting requirements:

  • “Provide monthly data on the number of individuals to whom the contraceptive coverage is being provided”;
  • Attest that all recipients of the policy “received a copy of the written notice” of coverage that must be given to all employees;
  • Attest “that the issuer provided contraceptive coverage” according to the provisions of the rule;
  • “Identify the QHP(s) [Qualifying Health Plan(s)] being offered through a Federally-facilitated Exchange with respect to .  .  . the user fee reduction”;
  • “Submit an estimate of the cost of contraceptive coverage to HHS for approval, in the manner and timeframe specified by HHS, concurrent with documentation or data supporting that estimate.”

Rather than do all that—or sue the government for forcing them to supply a free product—many insurers may find it easier not to offer coverage to religious organizations opposed to contraception. Hmm .  .  . perhaps that is one of the points.

When you think about it, the free-birth-control “compromise” is ingenious statism. With the private sector forced to foot the bill for unwanted contraceptive coverage, the regulation appears more difficult to oppose on First Amendment grounds. This allows the media to claim, falsely, that the administration has backed off its moral imperialism against (mostly) Catholic charitable organizations. It also generates bitterness, churning, turmoil, and political division—the Obama administration’s favorite governing stance—and does so in such a complicated way that opponents of this coercion can be made to appear as if they are the unreasonable ones.

The issue here is not contraception, but the demolition of limited government. If the Obama administration can force the private sector to provide a free product to help the government circumvent a constitutionally protected freedom, what can it not do? Why not also one day mandate free, universal coverage of abortion? After all, the president and many of his supporters plainly would regard this as enlightened policy. For that matter, why should the ability to force the private sector to pay for favored social agendas be limited to health care? If this “compromise” sticks, all manner of power grabbers and social engineers will be rubbing their hands in eager anticipation of all the “good” they can do.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.