Does the new HHS mandate resolve religious-liberty concerns?

posted at 11:31 am on February 2, 2013 by Ed Morrissey

Actually, the answer is no, and it wasn’t intended to do so either, as I write in a new column for The Fiscal Times.  The Obama administration was under a court order to modify the mandate regulation after a legal representation to a federal court that HHS never intended to enforce the mandate in its then-current form.  The court ruled that a binding commitment and ordered HHS to submit a new regulation for their review by March 31st.  Yesterday’s release of the new regulation is intended to win the court’s approval in dismissing a lawsuit brought by Belmont Abbey College and Wheaton College, and nothing more.

It may succeed in doing so, and it may let other religious-affiliated non-profits off the hook, too, although that’s still debatable.  What isn’t debatable is that the new mandate does little to resolve the underlying issue of the intrusion of the federal government into the definition of religious practice:

Furthermore, the new regulations appear to once again assert that the only entities for which free exercise of religion applies are churches, synagogues, and temples, and now their affiliates.  The new rules do not offer any exemptions for private business owners running for-profit organizations to refuse involvement in contraception coverage.  That means plaintiffs like Hobby Lobby and other firms owned by those with religious objections will remain subject to the mandate.  The federal government will still force them to provide contraception for free to their employees, even though there aren’t any access issues for contraception now, especially for women who earn their own living.

The Becket Fund, which represents Belmont Abbey and Wheaton and now represents Hobby Lobby, underscored that point in a statement to LifeNews. “Today’s proposed rule does nothing to protect the religious liberty of millions of Americans. The rights of family businesses like Hobby Lobby are still being violated,” Kyle Duncan, General Counsel for The Becket Fund For Religious Liberty, said.

HHS clearly wants to get the Catholic Church and other denominations back on the sidelines of this fight, and focus their efforts on imposing mandates on the private sector for their own social engineering.  This new “modification” only applies to the scale of the insult to religious liberty and practice, rather than retreating from it entirely.

And even with religious-affiliate non-profits, it’s still imposing a weird shell game:

However, HHS still can’t quite let these organizations off the hook entirely.  For those that purchase insurance, the self-certification has to be presented to the insurer, which then has to offer no-cost contraceptive care to the employees directly.  For self-insured organizations – and there are quite a few in the religious-organization sector – the self-certification is presented to the third-party administrator, who then has to find contraception insurance for the employees.

In both cases, everyone has to pretend that (a) the employer isn’t facilitating this in some manner in contravention to their religious principles, and (b) contraception is entirely free.

HHS in its statement writes that insurers will be glad to offer free birth control without raising premiums on employers because the suddenly-free access to birth control will lower the costs of medical care. That only works if all of these employed women never had access to birth control in the first place — which we know is absurd, as the CDC’s 20-year study on unplanned pregnancies demonstrated.  If these women have been accessing birth control already as the study demonstrates, then there are no cost savings and insurers will have to pay more.  Those costs will result in higher premiums, either for the specific employers or across the board as the cost shifts from the patient to the risk pool.

Besides, if insurers could save money by offering free contraception and sterilization, they would already be doing so.  They are the experts at avoiding risk and minimizing liabilities.  This mandate treats both women and insurers as children who couldn’t possibly determine their own best interests without government intervention and a patronizing intrusion into a personal choice.

Will it pass muster with the courts? In the case of Belmont Abbey and Wheaton Colleges, I’d guess that it will.  Employers like Hobby Lobby will have to continue to push their case for religious liberty in the courts.


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Julia!

Electrongod on February 2, 2013 at 11:35 AM

Rooting for HOBBY LOBBY on this one!!

Khun Joe on February 2, 2013 at 11:35 AM

Julia!

Electrongod on February 2, 2013 at 11:35 AM

Does she work at HOBBY LOBBY?
/

Khun Joe on February 2, 2013 at 11:36 AM


What disgusts me about this entire issue is that we are having the debate at all.

When did we become a country that can force anyone to buy anything against their will or belief?

cntrlfrk on February 2, 2013 at 11:43 AM

I don’t understand how this new fix differs from the old fix.

Cindy Munford on February 2, 2013 at 11:44 AM

cntrlfrk on February 2, 2013 at 11:43 AM

When did the Obamacare Tax pass?

Cindy Munford on February 2, 2013 at 11:45 AM

Cindy…June 28, 2012

CoffeeLover on February 2, 2013 at 11:47 AM

What disgusts me about this entire issue is that we are having the debate at all.

When did we become a country that can force anyone to buy anything against their will or belief?

cntrlfrk on February 2, 2013 at 11:43 AM

Agree totally. Going after religious liberty makes it even more disturbing.

CoffeeLover on February 2, 2013 at 11:49 AM

This mandate treats both women and insurers as children who couldn’t possibly determine their own best interests without government intervention and a patronizing intrusion into a personal choice.

…liberals are such hypocrites!

KOOLAID2 on February 2, 2013 at 11:50 AM

The 1st commenter veered dangerously close (Julia!) to the cold heart of the matter, but it goes deeper than simply nanny statism.

At its core, this whole ‘don’t judge my promiscuity and subsidize my contraception / abortion or you wage war on women’ agitprop seeks to undermine human free will and responsibility for self control of our more base urges. IE; sex, and all resulting actions and consequences are merely biology that needs to be medically managed, like any other disease or malady.

The true tragedy of this secular progressive worldview is that the human condition is merely the obvious outworking of ‘ biological victimization’ – and only BIG GOVT. can help.

locomotivebreath1901 on February 2, 2013 at 11:51 AM

11:43, Since June 28th 2012 and Justice Roberts decided he rather make the history books than defend the Constitution.

sanjuro on February 2, 2013 at 11:52 AM

I don’t really think this is a way out of the religious liberty issues with the HHS contraceptive mandates. Who really thinks that insurance companies would provide ‘free’ contraceptives without jacking up the cost of the regular insurance to the religious organization? I hope theCatholic Church and others keep fighting for all employers’ conscience rights.

mathgal60 on February 2, 2013 at 11:52 AM

CoffeeLover on February 2, 2013 at 11:47 AM

Oh, that’s the SCOTUS date, I had to think about that for a minute.

Cindy Munford on February 2, 2013 at 11:53 AM


What disgusts me about this entire issue is that we are having the debate at all.

When did we become a country that can force anyone to buy anything against their will or belief?

cntrlfrk on February 2, 2013 at 11:43 AM

They’re not buying anything. It’s just a tax. /sarcasm

Fenris on February 2, 2013 at 11:56 AM

I don’t understand how this new fix differs from the old fix.

Cindy Munford on February 2, 2013 at 11:44 AM

…until they can fix this fix of the fix silly!

KOOLAID2 on February 2, 2013 at 11:56 AM

KOOLAID2 on February 2, 2013 at 11:56 AM

It’s like their donor exemptions but this time they hope they can shut up the noisy people. If the courts decide only religious institutions fall under this exclusion, we are so screwed.

Cindy Munford on February 2, 2013 at 12:00 PM

What’s the big fuss you hicks/hayseed Conservatives? We’re creating the best kind of God for you to worship and serve. THE FEDERAL BEAST.

The Federal Government can provide you with food and shelter and good health. Soon the Feds will be providing fair and equal paychecks and they’re going to be testing us for BMI and cholesterol and they’re going to put us on meds that we need and if we don’t obey they’ll have no choice but to “help us along the road to good health”. And the FedGov and the Ruling class can let us use our charitable urges to help build houses in poor communities to be disrespected and torn down by the low income in the homeowners hearts. And the FedGov can teach our kids and even us.

And at some point very very soon they’ll be able to help us decide what careers are best and what we can think and say and post online. And the best part FINALLY someone (the NHS or some other wonderful agency) will be able to tell citizens the proper way to urinate or to wipe our behindses.

ALL hail our new god (the one we can see)…………THE FEDERAL GOVERNMENT.

Next up? a 90 foot statue made of gold in the likeness of Uncle Sam to worship?

PappyD61 on February 2, 2013 at 12:01 PM

I am the federal government thy god. Thou shalt not have any other gods before me.

JimLennon on February 2, 2013 at 12:01 PM


What was even more disturbing to me, was reading, now a couple years ago sadly, that the Obama Administration defense was based on “wickard v. filburn”.

Going all the way back to 1942 to use bad law, to defend bad law is certainly frightening.

.

cntrlfrk on February 2, 2013 at 12:02 PM

Resistance is futile. You will be assimilated. But we’ve evolved. We’ll do it bit by bit, so that you never notice. Ultimately, you’re ours. :-)

tommy71 on February 2, 2013 at 12:15 PM

So, Obama is betting that the supreme court that has already ruled that corporations are treated as individuals with respect to their rights to political speech will rule corporations and businesses do not have the right to religious freedom, or “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

STL_Vet on February 2, 2013 at 12:18 PM

When did freedom of religion only become applicable to large groups or institutions? I thought it was an individual right of “we the people”.
Where is my exemption?

Mimzey on February 2, 2013 at 12:23 PM

The left won’t be satisfied until there are free condoms and BC pills in dispensing machines in the breakrooms at every workplace until someone complains about the colors or flavors.

docflash on February 2, 2013 at 12:25 PM

I wonder when these dumbazzes are going to realize that we need more babies. Or are undocumented workers just easier to support with a minimum of emotional attachment?

Cindy Munford on February 2, 2013 at 12:26 PM

Anyone up for an HHS chip implant party? Chips will be inserted into foreheads or right hand? Your choice.

Mr. Arrogant on February 2, 2013 at 12:27 PM

While I applaud the opposition of the bishops and others to Obama’s assault on out religious liberties, i question if protection can be applied to private citizens. Quakers, 7th Day Adventists, Amish and others are protected from harm in many areas of belief and practice. But all individuals are required to pay taxes to the various levels of govt and those taxes pay for activities quite at odds with religious belief. Notably the federal tax used to pay for the national defense establishment. So I think that Hobby Lobby’s owners, however admirable their stand, are not protected from the law. Would a believeing Muslim landlord be protected from federal housing statutes if he refused to rent to a homosexual couple? No. He would suffer penalties and consequences of the law.

xkaydet65 on February 2, 2013 at 12:28 PM

So the government would say that ‘collectively’, one can “practice” the tenets of their religion. Privately, they may not?

Sounds like our resident “Constitutional scholar” has flubbed it again.

But then, was he ever really a ‘scholar’ of anything, other than dipping his hand into the pocket of someone else?

GarandFan on February 2, 2013 at 12:28 PM

What disgusts me about this entire issue is that we are having the debate at all.

When did we become a country that can force anyone to buy anything against their will or belief?

cntrlfrk on February 2, 2013 at 11:43 AM

When “we” elected Democrats into majories into the House and Senate, Obambi into the White House, and Chief Justice Roberts didn’t invalidate OBAMACARE when he should have…

THAT’S WHEN…

Khun Joe on February 2, 2013 at 12:32 PM

What part of “Congress shall make no law” is difficult to understand?

EdmundBurke247 on February 2, 2013 at 12:34 PM

When did freedom of religion only become applicable to large groups or institutions? I thought it was an individual right of “we the people”.
Where is my exemption?

Mimzey on February 2, 2013 at 12:23 PM

Correct, that’s exactly what they’re thinking.

22044 on February 2, 2013 at 12:35 PM

On the issue of religion, have you seen this about the WWP? I have no idea why this bunch has to be so nasty to our wounded vets to refuse funds to help them?

http://radio.foxnews.com/toddstarnes/top-stories/wounded-warrior-refuses-to-accept-money-from-church.html
L

letget on February 2, 2013 at 12:49 PM

They did it for three reasons (off the top of my nakid head)

1) Curtail religious freedom (communists cannot tolerate competition-neither can faux messiahs be subservient to real Messiahs)

2) Curtail everyone’s right to conscience.

3) Force the closure of charities and Cloward Piven the rabble over to the government’s control.

Don L on February 2, 2013 at 12:49 PM

On the issue of religion, have you seen this about the WWP? I have no idea why this bunch has to be so nasty to our wounded vets to refuse funds to help them?

http://radio.foxnews.com/toddstarnes/top-stories/wounded-warrior-refuses-to-accept-money-from-church.html
L

letget on February 2, 2013 at 12:49 PM

Very bad move of them. I hope they’ll change their mind.

22044 on February 2, 2013 at 12:56 PM

Khun Joe on February 2, 2013 at 12:32 PM

That’s the flower of the plant. The seed was planted at least as far back as TR of “speak softly and carry a big stick” fame.

chemman on February 2, 2013 at 1:00 PM

letget on February 2, 2013 at 12:49 PM

My daughter who gave money monthly to them has stopped donating because of this. She also said they refused to take money from gun organizations.

chemman on February 2, 2013 at 1:02 PM

chemman on February 2, 2013 at 1:02 PM

I saw that also about the gun organizations. I wonder if Toby Keith, the c/w singer, is aware of what the wwp is doing? I can’t get my head around Toby going along with this bunch on their actions?
L

letget on February 2, 2013 at 1:14 PM

BTW, I should add, isn’t the wwp what President Bush does bike rides, almost yearly, with the wounded vets?
L

letget on February 2, 2013 at 1:16 PM

In all this legal posturing, it has to be clear that the administration hoped to step on the Catholic church, an erstwhile supporter of their progressive causes (e.g. open immigration).

Are there no Islamic organizations whose principles are being infinged by this unprecedented intrusion by the federal government? When did Islamic organizations start sponsoring free contraception? (Or, have they already got a “waiver” from this administration?)

virgo on February 2, 2013 at 1:27 PM

22044 on February 2, 2013 at 12:56 PM

This is indeed very stupid. The youngest Boy Wonder (son) is playing in two different banks in an all day concert benefiting them today. I was going to go and now I think I will skip it.

Cindy Munford on February 2, 2013 at 1:33 PM

BTW, I should add, isn’t the wwp what President Bush does bike rides, almost yearly, with the wounded vets?
L

letget on February 2, 2013 at 1:16 PM

No I don’t think so. He road with the Warrior 100 and the LSM kept referring to them as wounded warriors. But I don’t think they’re affiliated with the WWP.

As for the WWP, I quit giving some time ago after reading negative comments from Vets and reading their financials. A lot of money at the top end. There are other better run organizations that help our Vets. JMO
You can check them out here…read some of the reviews too.
http://www.charitynavigator.org/index.cfm?bay=search.summary&orgid=12842

Deanna on February 2, 2013 at 1:41 PM

6,000 years of recorded history……and in all of that history…….how many years of it have the people of any nation, any nation been “free”?

about 200.

And the last 100 we’ve been slipping back into the patterns of the past thousands of years.

This is a fight that predates us, and…….will outlast us.

PappyD61 on February 2, 2013 at 1:54 PM

Deanna on February 2, 2013 at 1:41 PM

Thanks for your information.
L

letget on February 2, 2013 at 2:03 PM

Oh no… this means Obama has joined the War On Women!

It’s the same thing the evil Republicans wanted, right?

drunyan8315 on February 2, 2013 at 2:41 PM

–snip–
Are there no Islamic organizations whose principles are being infinged by this unprecedented intrusion by the federal government? When did Islamic organizations start sponsoring free contraception? (Or, have they already got a “waiver” from this administration?)

virgo on February 2, 2013 at 1:27 PM

My understanding is that they already have an exemption from this legislation and regulation.

Overall, I think the Administration is trying to split hairs in ever-slimmer slivers, and are not making any progress–which they can’t as the position is untenable. Only a Big Government person would think that by making the insurance company, which gets its fees from the employers, could fund something without the complicity of the employers. Unless and only unless, the insurer has an employer-independent (open to anyone regardless of employer or other insurance status) charity to provide such contraception and abortion pills, The money for said charity would have to come directly out of the insurers’ profits and not the fees.

Kevin K. on February 2, 2013 at 2:42 PM

Shorter Ed Morrissey: “Am I ever going to stop b*tching & whining about EVERYTHING associated with Obama and the Democrats?” No, not really.

Sigh.

lostmotherland on February 2, 2013 at 4:30 PM

Shorter Ed Morrissey: “Am I ever going to stop b*tching & whining about EVERYTHING associated with Obama and the Democrats?” No, not really.

Sigh.

lostmotherland on February 2, 2013 at 4:30 PM

Send him an email champ.

Apologies to Ed of course.

tom daschle concerned on February 2, 2013 at 4:35 PM

lostmotherland on February 2, 2013 at 4:30 PM

There’s a little X at the top of your browser that will allow you to not have to read anything Ed says ever again.

cptacek on February 2, 2013 at 6:57 PM

virgo on February 2, 2013 at 1:27 PM

Muslims, Amish, Christian Scientists, Scientologists, and a few others, are exempt from obamacare.
They don’t have to participate in any way.

Solaratov on February 2, 2013 at 7:05 PM

Shorter Ed Morrissey: “Am I ever going to stop b*tching & whining about EVERYTHING associated with Obama and the Democrats?” No, not really.

Sigh.

lostmotherland on February 2, 2013 at 4:30 PM

You know, lostmotherhumper, if I don’t like an author on a site, I don’t (as you seem to enjoy) piss and moan or whine and snivel about the author. I just don’t bother going to that site.

You might consider that course of action…rather than sighing like some pansy drama queen.

Solaratov on February 2, 2013 at 7:12 PM

If absolutely nothing else, what we really need to get rid of are these coverage requirements (most of which were placed by the states).

Count to 10 on February 2, 2013 at 7:54 PM

Shorter lostnannystate:

“My shame and embarrassment campaign against owners of scary boomsticks isn’t working, and now this!”

CurtZHP on February 2, 2013 at 10:12 PM

While I applaud the opposition of the bishops and others to Obama’s assault on out religious liberties, i question if protection can be applied to private citizens. Quakers, 7th Day Adventists, Amish and others are protected from harm in many areas of belief and practice. But all individuals are required to pay taxes to the various levels of govt and those taxes pay for activities quite at odds with religious belief. Notably the federal tax used to pay for the national defense establishment. So I think that Hobby Lobby’s owners, however admirable their stand, are not protected from the law. Would a believeing Muslim landlord be protected from federal housing statutes if he refused to rent to a homosexual couple? No. He would suffer penalties and consequences of the law.

xkaydet65 on February 2, 2013 at 12:28 PM

Private citizens are exactly who should be protected. What we have is the government trying to force people to pay for things that are against their religion, but not by taxes. Your example of conscientious objectors doesn’t even being to apply, since the government is not funding this with taxes that you are required to pay anyway for all government operations, but simply requiring you to pay a third party for abortifacients in the name of birth control.

If the government can require you to do this, then freedom of religion is no longer an individual right, but a right that is only given to “legitimate” religious organizations like churches.

The direct equivalent would be to declare that freedom of speech is only applicable to news organizations, not individual citizens. Or that guns are only allowed for members of federally recognized militias, not individuals.

All 3 are essentially the same issue: the fascist state trying to take individual rights and limit them to only certain recognized groups. And since the government does the recognizing, the rights mean only what the government allows them to mean.

If this is allowed to stand, then the government will effectively be able to remove free speech from any organization that gets too critical of them, remove free exercise of religion from any religious group that teaches things they don’t like, and confiscate guns from any militia or shooting range that does not comply sufficiently with federal reporting requirements.

It’s hard to regulate individuals. So much easier to put them in groups, then regulate the groups.

So yes, we need to push back against this at every opportunity.

There Goes The Neighborhood on February 3, 2013 at 1:40 AM

test post

TX-eye on February 3, 2013 at 1:45 PM

Muslims, Amish, Christian Scientists, Scientologists, and a few others, are exempt from obamacare.
They don’t have to participate in any way.

Solaratov on February 2, 2013 at 7:05 PM

Solarov, do you have the reference for this in the Obamacare text?

I would have thought there was an “unequal treatment” case to make.

Just as you can’t make a law against an individual, I would have thought exempting individuals from what is supposed to be a law by “waiver” is a sign of bad law.

virgo on February 3, 2013 at 3:02 PM