Backed Into a Corner

Original Article

Last year, the Department of Health and Human Services promulgated regulations under the Affordable Care Act (aka Obamacare), requiring all business owners with 50 or more full time workers provide health insurance providing free birth control, sterilization surgeries, and the morning after pill to female employees. That rule conflicted with the religious beliefs of tens of millions of Americans, setting off political conflict.

There are three different categories of religious “objectors” to the rule: First, are houses churches or associations of churches as well as the “exclusively religious activities” of these groups. Second, are religious organizations acting in the world, such as nonprofit hospitals, universities, and charities. And third, are private business owners.

The original rule created a very narrow exemption for the first category only. Religious organizations and objecting religious business owners were treated identically: Either violate your faith by providing the coverage or face a stiff fine!

That set off a political fire storm as to the religious organizations. 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, sparking scores of lawsuits against the government. The business owners have experienced differing results in the lower courts so far. For example, Hercules Industries, a Colorado air conditioning and heating manufacturer, has been protected by the courts (as I reported here attothesource.) In contrast, Hobby Lobby—the largest chain of craft stores in the nation—has been refused protection by the courts and currently faces ruinous penalties for refusing to cover the morning after pill because of its abortifacient potential. The fate of the Free Birth Control Rule as it affects private business owners will almost certainly be decided by the Supreme Court.

Meanwhile, the administration recently announced its proposed revised rule as it impacts non house of worship religious organizations. Those hoping the administration would back off were bitterly disappointed. Instead of offering a truemodus vivendi, the administration launched a stealth power grab. Not only does the proposed “compromise” continue the government’s intrusion into the religious sphere, but it concomitantly uses the contraception coverage controversy as the pretext for increasing Obamacare’s control over the private insurance sector.

Instead of simply exempting all religious organizations with faith-based objections to contraception from compliance with the rule, there will now be two classes of religious objectors. The first are those previously given an exemption. All other religious nonprofits opposed to contraception—the ones about which such a fuss was made—receive a mere “accommodation.”

Here’s how the “accommodation” will work:

  • The organization must comply with the provisions of the Affordable Care Act and purchase a general group health plan.
  • The organization must certify to its insurance carrier that it objects to contraception for religious reasons.
  • The health 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 these girls and women free of charge.

Thus the mere act of purchasing health insurance by the religious employer—required by law—automatically triggers forced free coverage for contraception.

This means that in many cases, even nuns will have to be insured for birth control. The accommodation also forces objecting organizations to be complicit in furthering an activity their faith deems sinful—with no opt/out other than to break the law by not buying health insurance—which would be detrimental to all their employees—and facing stiff fines.

The proposed rule also impinges on the liberty of the private sector by compelling carriers to provide a free product to identified organizations for the purpose of furthering the administration’s social goal of “gender equality” (as Department of Justice lawyers have argued in legal briefs). Thus, insurance companies will be able to fully charge for-profit companies like Google or Sears for covering contraception and sterilization surgeries. They will also be able to charge the Episcopalian and Lutheran Churches—neither of which is doctrinally opposed to birth control, and thus do not qualify for the accommodation. But companies will not be allowed to charge Catholic Charities or Georgetown University, while still having to provide the same contraceptive coverage as to its other customers—an act of blatant conscription.

When you think about it, the Free Birth Control Rule “compromise” is ingeniously camouflaged statism. By forcing the private sector to foot the bill for unwanted contraceptive coverage, the regulation becomes more difficult to resist on First Amendment grounds. It allows the media to claim, falsely, that the administration backed off its moral imperialism against (mostly) Catholic charitable organizations. Even better from the president’s perspective, it generates increased bitterness, churning, turmoil, and political division, and does so in such a complicated way that opponents to the administration’s coercion can be made by media and other apologists to appear as if they are the unreasonable ones.

The issue here is not contraception—but principle—e.g. resisting the current administration’s ongoing demolition of limited government. If the private sector can be forced to provide a free product to allow the government to circumvent what should be a constitutionally protected religious objection, in order to promote administration-desired social goals, why not also (one day) mandate similar universal coverage (sometimes on the private sector’s dime) for free abortion? Indeed, why should the make-the-private-sector-pay-for-controversial-government-social-agendas gambit be limited to health care?

If this compromise sticks, as a famous advertisement slogan once put it, imagine the possibilities.

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.