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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