Mandate a cure in search of a disease

posted at 8:40 am on February 15, 2012 by Ed Morrissey

The fight over the employer mandate to provide free contraception, even for religious organizations, won’t end any time soon.  The US Conference of Catholic Bishops are now pointing out that the so-called “accommodation” didn’t actually change the text of the rule at all, and that it leaves the door wide open for mandates on sterilization and abortion coverage.  That prompted columnist John Leo to wonder exactly how the Constitution can force religious organizations to violate their own principles in funding and facilitating products and services banned by their own doctrines, and notes that the issue has been with us for longer than we think:

In the conventional liberal narrative, the refusal of Boston Catholic Charities to approve gay adoptions was a simple issue of discrimination. Generally absent from the discussion was this question: Under what conditions can the state force churches and religious agencies either to violate their own principles or to quit providing social services altogether?

Jean Bethke Elshtain, a professor of social and political ethics at the University of Chicago Divinity School, calls this establishment pressure “liberal monism.” She means that those who talk the most about diversity and pluralism are often the most willing to mandate that all private and religious institutions conform to one ideological framework.

Liberals, she says, are eradicating the differences needed to make tolerance a viable practice. In order to enhance diversity, it is necessary to suppress it. That’s why the current battle against Washington-imposed monism is so crucial, and why it should be much more than a fringe issue in the fall campaign.

In that case, the church only sought to apply its own principles to adoptions it facilitated.  It made no attempt to interfere with other adoptions, nor did it seek to change Massachusetts state law.  As Leo writes, the diocese only asked for as much tolerance for its own religious views as the diocese gave to secular views on the issue of gay adoptions … and didn’t get it.  Instead, it went out of the adoption business in Massachusetts, where it had handled nearly a third of the hard-to-place adoption cases for the state, almost entirely at its own expense.

Unfortunately, religious organizations face the same choice under ObamaCare and this mandate.  Either they will have to fund and/or facilitate products and services that violate their religious doctrine or go out of business altogether.  Thanks to the new federal employer mandate to provide health insurance in ObamaCare, these organizations no longer have the option of just canceling their insurance provisions to avoid the mandate.  And why is this mandate necessary in the first place?  Is there some great crisis of access to contraception and abortifacients among employed people that only employers can solve?  In my column for The Week, I look at the CDC’s in-depth survey of contraception use and find out that the question of access never even comes up as a barrier:

Employers still have to provide coverage — at no cost, not even copays — for contraception and abortifacients such as “ella” and Plan B, as well as IUDs. Here’s a question few are asking: Why? Obama and his administration insist that women need better access to contraception and abortifacients, but few women have problems accessing them. The CDC reported in 2009 that contraception use wasn’t exactly lacking: “Contraceptive use in the United States is virtually universal among women of reproductive age: 99 percent of all women who had ever had intercourse had used at least one contraceptive method in their lifetime.” Of all the reasons for non-use of contraception in cases of unwanted pregnancy, lack of access doesn’t even make the CDC’s list; almost half of women assumed they couldn’t get pregnant (44 percent), didn’t mind getting pregnant (23 percent), didn’t plan to have sex (14 percent), or worried about the side effects of birth control (16 percent). In fact, the word access appears only once in this study of contraceptive use, and only in the context of health insurance, not contraception.

I’ve mentioned this before, but the notion of no-cost contraception mandates for the employer don’t make a lot of business or political sense, either.  In the latter context, who decided to put the employer in the bedrooms of their employees?  Does that sound like a good idea to anyone?  Many businesses self-insure, which means that their HR department will know exactly what they’re buying on behalf of the employee.  From the business side, the mandate turns the concept of risk management on its head:

The mandate for no-cost insurance coverage makes no business sense, either. Insurers operate risk pools, and the more risks one group creates, the more they are expected to contribute to balance the risk for the other participants. For instance, when a driver buys insurance, his rates depend on a number of factors, including age, vehicle type, area of residence, driving record, and the number of miles driven in a year. If a driver chooses to drive more than 7,500 miles in a year, the risk increases, and so do premiums for that driver. If the insurer spread the cost of this one driver’s increased risk across the whole pool of drivers, it would disincentivize risk minimization. Adults can choose to be sexually active. They might require contraception. But if the government mandates coverage of those products, shouldn’t the people choosing that riskier behavior be expected to contribute more rather than less, to keep the rest of the risk pool from paying for their increased access?

The White House and HHS insist that this is immaterial, because it’s cheaper to provide the contraceptive coverage than to exclude it. This is based on a cost-benefit analysis that claims that the use of contraception and abortifacients lower health-care costs for women. If that’s true, however, health insurers wouldn’t need a mandate to add such coverage to existing plans. The problem with this analysis is that it ignores the fact that insurers have to cover the up-front cost of such products and services, while any possible savings (by preventing more expensive pregnancy and childbirth costs) would occur over a much longer period of time. Those up-front costs will be borne by those paying the premiums — in this case, the employers (and sometimes, partially, by employees.)

The real problem in this issue isn’t access to contraception.  When 99% of women of reproductive age have accessed it without an employer mandate, access is as universal as it can get.  The real issues are religious liberty, as we have often discussed, and the more acute problem of ObamaCare itself.  This is not just some benign federal resource-sharing program designed to make it easier to find coverage; this is, as we repeatedly warned, a mechanism for the federal government to take control of the health-care industry and have unelected bureaucrats rule one-sixth of the American economy by diktat.  Repealing the mandate is the first step; repealing ObamaCare will be the only way to ensure that bureaucrats don’t have the power to do this again.

On that first step, Harry Reid backed down yesterday and will allow a vote on Roy Blunt’s bill to repeal the mandate and insert a broad religious exemption into ObamaCare, while it lasts:

Senate Majority Leader Harry Reid, D-Nev., relented on Tuesday and now says he’ll allow a Senate vote on an amendment that would reverse the White House’s controversial requirement that all insurers provide birth control free of charge to women. The proposal put forward last week by Sen.Roy Blunt, R-Mo., would exempt employers from providing any care they find immoral.

It’s unlikely to pass the Senate, and Reid blocked the vote last week. But he gave in on Tuesday, providing a potential opportunity for his fellow Democrats Ben Nelson of Nebraska (a cosponsor of Blunt’s amendment), Robert Casey of Pennsylvania, and Joe Manchin of West Virginia to reaffirm their anti-abortion credentials and reassure constituents concerned about preserving religious scruples.

Opponents object to the broader language, saying it will allow employers to opt out of any coverage they find offensive — which is exactly what they could do before the passage of ObamaCare, or have the option of not offering it at all.    The House will almost certainly pass its own version quickly.  It looks like Reid will force Obama to veto the bill to which it is attached, which will make Obama look even more radical than the Senate his party controls.  That should be … interesting.

Meanwhile, Republicans need to focus on repealing ObamaCare and ending the anachronistic tax regulations that perpetuates the third-party-payer, employer-delivery system for health insurance and transform coverage into a personal choice for the individual consumer.  That’s the true path to health-insurance reform, and one that doesn’t hand massive power to federal bureaucrats who want to dictate our choices and violate our religious doctrines.

Update: Does the mandate violate existing federal law?  Ed Whelan and David Rivkin argue that it does:

The birth-control coverage mandate violates the First Amendment’s bar against the “free exercise” of religion. But it also violates the Religious Freedom Restoration Act. That statute, passed unanimously by the House of Representatives and by a 97-3 vote in the Senate, was signed into law by President Bill Clinton in 1993. It was enacted in response to a 1990 Supreme Court opinion, Employment Division v. Smith.

That case limited the protections available under the First Amendment’s guarantee of free exercise of religion to those government actions that explicitly targeted religious practices, by subjecting them to difficult-to-satisfy strict judicial scrutiny. Other governmental actions, even if burdening religious activities, were held subject to a more deferential test.

The 1993 law restored the same protections of religious freedom that had been understood to exist pre-Smith. The Religious Freedom Restoration Act states that the federal government may “substantially burden” a person’s “exercise of religion” only if it demonstrates that application of the burden to the person “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest.

The law also provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act. The birth-control mandate proposed by Health and Human Services is thus illegal.


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Comment pages: 1 2

: Does the mandate violate existing federal law? Ed Whelan and David Rivkin argue that it does:

When has that ever stopped them?

spinach.chin on February 15, 2012 at 12:35 PM

Romney claimed to Sarah Palin that he’s for the 2nd amendment. So long as he doesn’t vehemently defend the 1st one he’s not fit to win anything.

Schadenfreude on February 15, 2012 at 12:43 PM

This is exactly right. There is NO access to affordable birth control problem. Its easy to find its readily available and its realtively cheap and to poor people its free…already. Its also not the 1950′s or 60′s.

Now I want to know why the Democratic women aren’t worried about the access and affordablility of contraception to those women who work for employers who have Obamacare waivers. Isn’t there some way Obama could mandate someone else to pay for these poor union women?/sarc.

magicbeans on February 15, 2012 at 12:57 PM

You know, when I thought this mandate merely violated the Constitution I couldn’t see what all the hubbub was about. But now that I realize it also violates some law I’ve never heard of, I’m kind of P.O.’d.

rogaineguy on February 15, 2012 at 10:59 AM

It is important because “Employment Division vs. Smith” pretty much stripped away religious liberty, and they passed a law to rectify that.

cptacek on February 15, 2012 at 12:59 PM

Next up:

Mandate that car insurance pay for oil changes every 3000 miles, new brakes every 15,000 miles and new tires every 40,000 miles.

Why not? Oil changes, new brakes and tires will lead to safer cars and fewer accidents, which will lead to cheaper insurance. Right?

angryed on February 15, 2012 at 9:09 AM

Not “pay for oil changes”, -should read ‘provide free oil changes’. That does much better in the focus groups.

slickwillie2001 on February 15, 2012 at 1:05 PM

repeal is the only way to protect the freedoms of everyone not just a segment here and there.repeal is the only way to preserve the bill of rights and our rule of law for everyone.

besides the obvious violation of the constitution represented by obamacare and romenycare they both point out the very big problem with states and the federal government mandating certain types of procedures and drugs HAVE to be covered under acceptable insurance plans. it’s all these mandates for coverage individuals might not want or need( or mandates that violate their beliefs in some way) that help drive up health care and insurance costs. there really is no true free market for consumers to chose the coverage they desire and can afford- even before romenycare. complaining that the free market ruined healthcare so big brother has to step in is an outrageous lie.

insurance costs in MA have skyrocketed under romneycare.previously, they were already among the highest in the country anyway due to all the things that the state required policies to cover. romney kept up lying about how costs would be driven down. how stupid is this guy or is he just a liar? the concept of insurance has been around for sometime and the math involved is quite simple. it was clear that it was rather covering everyone by taking unfairly and disproportionately from the productive was the real intent-it’s wealth distribution pure and simple. they had to know it wouldn’t drive down costs especially with the health connector overlords in charge- being all insurance company executives- deciding what would be covered and who would get waivers. the health connector was and is the precursor of the great and might sibelius-waiver goddess and pope kitty I of health care.

if they were really concerned with driving down costs they’d dump the mandates-by making policies more streamlined, portable and providing for options the consumer may choose for themselves. health insurance( it’s not really health care is it? it’s all about insurance companies geting as much money out of the productive to cover the poor and unproductive) would be more affordable and thus available to more people.that’s not done with mandates- it’s done with freedom to choose. but it wouldn’t break the system and make socialized medicine the tyrannical cure. the mandate itself is a sop to the insurance companies to participate in their own destruction.

it’s all a sham- they all want socialized health care not socialized insurance. obamacare and romneycare were meant to break the constitution and destroy the quasi-free market insurance already in existence.

willard -give it up.

mittens on February 15, 2012 at 1:20 PM

Uppereastside on February 15, 2012 at 11:32 AM

Lighten up, Francis.

Solaratov on February 15, 2012 at 1:24 PM

So, unless there is something I’m missing (and, IANAL, so please, I am definitely interested) RFRA should apply to this federal mandate.

cptacek on February 15, 2012 at 12:57 PM

I think you are exactly in the right area of how a challenge might proceed. Sorry, I didn’t see your comment on the other thread. In “Catholic Charities v Superior Court” (2004). The CA Supreme Court ruled against the RCC who sued over a contraception law that covered Catholic Charities, though not actual churches.

Employment Division v Smith was one key to the 6-1 ruling in CA. Though as you point out RFRA didn’t apply to the states, but does currently apply to the Fed.

I’m not a lawyer either, but a RCC challenge in federal court on ObamaCare’s contraception mandate would seem to cause the court to consider two cases among several 1.) Gonzalez v UDV (as you point out) which applied RFRA to the DEA and 2.) Alamo Foundation v Labor, which identified limits on which parts of an evangelical organization received religious exemptions.

A win for the RCC based on federal law wouldn’t be a 1st Amendment win. Based on RFRA, they’d still be subject to the various contraception requirements in each state.

OptionsTrader on February 15, 2012 at 1:33 PM

Sorry, I didn’t see your comment on the other thread.
OptionsTrader on February 15, 2012 at 1:33 PM

No problem, it was pretty late :)

cptacek on February 15, 2012 at 1:35 PM

As a matter of curiosity, does the Obama mandate apply to counseling of and instruction in Natural Family Planning?

Ronald Wallenfang on February 15, 2012 at 3:31 PM

Employers that self insure could easily make hiring and firing decisions on the basis of birth control use. The minimum cost of a pregnancy must be at least $10,000 and a complicated pregnancy could easily run $100,000. It would be good business to discriminate against women of child bearing age and they might be liable for women in their late 50s that with the aid of modern science have had children. There have already been lawsuits because a company refused to let a woman work in an area where the chemicals used could case birth defects. Nothing would have to be put in writing,somebody better qualified would always be selected even if it meant delaying the hiring decision for months.

dunce on February 15, 2012 at 5:14 PM

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