Friday night document dump: Yet another “accommodation” on HHS mandate

posted at 11:31 am on August 23, 2014 by Ed Morrissey

After getting stung two months ago by the Hobby Lobby decision, the Obama administration had to go back to the drawing board to salvage the HHS contraception mandate. Late yesterday, HHS announced a new “accommodation” that supposedly will pass court muster after the Supreme Court decision, but will it? The new regulation offers for-profit businesses the same mechanism it had previously offered non-profits, and offering non-profits a more direct way of rejecting contraception coverage:

Effective immediately, the U.S. will start allowing faith-affiliated charities, colleges and hospitals to notify the government — rather than their insurers — that they object to birth control on religious grounds.

A previous accommodation offered by the Obama administration allowed those nonprofits to avoid paying for birth control by sending their insurers a document called Form 700, which transfers responsibility for paying for birth control from the employer to the insurer. But Roman Catholic bishops and other religious plaintiffs argued just submitting that form was like signing a permission slip to engage in evil.

In a related move, the administration announced plans to allow for-profit corporations like Hobby Lobby Inc. to start using Form 700. The Supreme Court ruled in June that the government can’t force companies like Hobby Lobby to pay for birth control, sending the administration scrambling for a way to ensure their employees can still get birth control one way or another at no added cost.

How serious is this proposal? Well, offering it in a Friday night document dump certainly doesn’t instill much confidence in the effort. Why not roll this out during a substantial news cycle? After all, the Hobby Lobby decision was a high-profile loss by the White House, so offering something under the media radar should raise suspicions about just why the administration wants to push this out in the most low-profile manner possible.

At first blush, HHS seems to have created at least one of the same problems that the Supreme Court noted. The Hobby Lobby decision didn’t even get to the issue of whether the regulation violated the First Amendment rights of business owners, but instead hinged on the second threshold of the Religious Freedom Restoration Act (RFRA). The first threshold tests to see whether a regulation “substantially burdens” religious expression, which the court held it did:

The second threshold is whether the government used the least-burdensome method of satisfying a compelling state interest (we should note that the court didn’t address whether the interest was compelling in Hobby Lobby, either). The opinion written by Justice Samuel Alito noted that HHS offered Form 700 to non-profits but not to for-profit businesses, which meant that HHS even by its own standards didn’t meet the least-burdensome test. That’s why the Supreme Court ruled that HHS’ mandate violated RFRA — even though the court never got around to addressing whether Form 700 actually solved the overall issue of substantial burdens on religious expression. The court only concluded that the government believes it to be effective relief:

hl-4

So now we have HHS offering for-profits the same Form 700. That would answer the challenge from Alito, yes? Well, actually no, because now HHS is offering another option to non-profits and attempting to sell that as less burdensome than Form 700 on religious expression. That leaves HHS in the same position as they were in the Hobby Lobby case — providing clear evidence that they aren’t using the least-burdensome method by their own definition to address what they see as a compelling state interest.

Why did they put themselves in this trap? The Supreme Court will be hearing cases involving non-profits next term, including the Little Sisters of the Poor and even more dangerous cases for the HHS contraception mandate. The Obama administration clearly wants to moot those cases and gain a little time, hoping to wait out the challenges to the mandate and perhaps tire out the plaintiffs challenging it. The Family Research Council calls this new “accommodation” nothing more than the same old, same old:

“This new proposed rule maintains the threat of crippling fines on non-profits who stand up for their freedom of conscience.

“What remains an insulting accounting gimmick does not protect the rights of Americans with sincere conscientious objections. It is simply another clerical layer to an already existing accounting gimmick that does nothing to protect religious freedom because the employer still remains the legal gateway by which these drugs and services will be provided to their employees. It’s very disappointing that the Obama administration is doubling down on its plans to punish charities and non-profits that assist the poor and homeless, who in some cases have nowhere else to turn for assistance.

“Effective immediately, this latest rule still orders charities, like the Little Sisters of the Poor, non-profit Christian colleges, like Wheaton College, and religious broadcasters, like EWTN to violate their consciences simply because they legally contract for health coverage. The government uses their contract as the basis to force their insurers to provide their employees with free contraception and drugs that can kill human embryos, against their sincere conscientious beliefs.

“If these charities and non-profits follow their conscience and decline to participate in the meaningless accounting gimmick, the administration will make them pay huge penalties accruable on a daily basis — one hundred dollars per employee per day.

“Additionally, the government is also soliciting comment on new ways to force family businesses to violate their deeply held moral and religious convictions due to the HHS mandate in an attempt to address and skirt the recent Supreme Court ruling. However, the government’s actions here still force family businesses to be complicit in what they view as morally wrong.

“The Family Research Council urges the administration to offer a full exemption from the mandate to charities and non-profits that have sincere conscientious objections and to respect the Supreme Court’s ruling regarding family businesses like Hobby Lobby and Conestoga Wood Specialties.”

The Becket Fund for Religious Liberty, which represents several of the plaintiffs in these challenges, responded yesterday by saying the eighth time probably isn’t the charm:

This is latest step in the administration’s long retreat on the HHS Mandate. It is the eighth time in three years the government has retreated from its original, hard-line stance that only “houses of worship” that hire and serve fellow believers deserve religious freedom.

We look forward to reviewing the new rule and its implications for the 102 cases, including religious charities like Little Sisters of the Poor (see video), Mother Angelica’s Eternal Word Television Network (see video), and religious colleges like Colorado Christian University.  Ninety percent of religious ministries challenging the mandate have received relief from the courts, and we are hopeful the administration’s new rule will reflect the robust protections that have always been given to religious individuals in this country.

Religious ministries in these cases serve tens of thousands of Americans, helping the poor and homeless and healing the sick. The Little Sisters of the Poor alone serve more than ten thousand of the elderly poor. These charities want to continue following their faith. They want to focus on ministry—such as sharing their faith and serving the poor—without worrying about the threat of massive IRS penalties.

“It’s like groundhog day,” Becket Fund notes elsewhere, “over and over and over again.” The courts will likely agree, especially when it comes to least-burdensome routes for for-profit businesses.


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The natural state of the world regresses towards the mean and Obamacare will follow suit. It will remain as named but nearly all of the distasteful liberal garbage it contains will dissipate or disappear.

rplat on August 23, 2014 at 11:35 AM

I dunno but wouldn’t this have to come from Congress? As like an amendment or something?

Akzed on August 23, 2014 at 11:38 AM

After all, the Hobby Lobby decision was a high-profile loss by the White House, so offering something under the media radar should raise suspicions about just why the administration wants to push this out in the most low-profile manner possible.

Um, that would require lefties to admit they lost something or were wrong about something, ANYTHING, and that simply won’t happen. As for raising suspicions, the MSM simply doesn’t have any suspicions about the Obama White House – period. Anything the Obama White House does passes muster with the mainstream media, by definition.

…and, Bishop!

DublOh7 on August 23, 2014 at 11:41 AM

Well they passed it and we keep finding out what’s in it.

CW on August 23, 2014 at 11:42 AM

Effeective immediately, the U.S. will start allowing…

That’s the nut of it.

wolly4321 on August 23, 2014 at 11:43 AM

What I fail to understand is why this ever even showed up. Anyone old enough to engage in sex should be old enough to buy their own damn contraception.

It is what we did and it was relatively cheap and it still is relatively cheap.

Grow up,America!

Sheese.

Mariadee on August 23, 2014 at 11:46 AM

Effeective immediately, the U.S. will start allowing…

That’s the nut of it.

wolly4321 on August 23, 2014 at 11:43 AM

Ain’t that the truth. Thy royalty is to allow us. How imperialistic of them.

Buckshots on August 23, 2014 at 11:48 AM

Fluke off, morons.

This will make your day, socialists.

Schadenfreude on August 23, 2014 at 11:51 AM

These so-called accommodations are nothing but bull$hit. The government has the objecting employer fill out a form, and then the government forces the objecting employer’s insurance provider to give the employer’s employees “free” contraceptives — and we’re all supposed to pretend that the insurance company provides all these “free” contraceptives out of the goodness of its heart (or plucks them off its “free” contraceptives tree), and not from the money it collects from its insurance customers (including the objecting employer).

Just because Obama is a dimwit who doesn’t have a clue how insurance companies operate, it doesn’t mean everybody else is that ignorant.

AZCoyote on August 23, 2014 at 12:01 PM

No one cares, because no one can do anything about it.

albill on August 23, 2014 at 12:13 PM

AZCoyote on August 23, 2014 at 12:01 PM

Liberal lexicon:

Free = Somebody else pays for it

BobMbx on August 23, 2014 at 12:13 PM

Just curious, but if they have access to birth control, why should they need an abortion? If it is a verified danger to the mother’s life, rape, or incest then the insurer should not be responsible for paying. By verified, a panel of doctors (not just a Planned Parenthood doctor)or a police report should be required.

DAT60A3 on August 23, 2014 at 12:13 PM

When it comes to Obama and Company, you can’t fix STUPID.

GarandFan on August 23, 2014 at 12:17 PM

It would seem the least burdensome method would be to do away with the “contraception mandate”, seeing as how it appears nowhere within the PPACA, it is not required in the least by the PPACA, and is, in fact, wholly a creation of Team Obama in order to patronize their unhinged Progressive base which wants free crap.

William Teach on August 23, 2014 at 12:19 PM

We have gotten here because of the Civil Rights Act of 1964, Wickard v. Filburn, and a host of other decisions by the Supreme Court that in essence allow the Federal Government to require commerce between two entities in which one of the entities does not want to engage.

In this case, we have not only a freedom of religion argument, but also an involuntary servitude argument — both of which translate to an over arching “freedom of association” right.

Should people be forced to do business with those with whom they do not wish to do business? Once, it was a farmer who wanted to grow his own chicken feed rather than buy it on the open market. Then it became a hotel who didn’t want to rent to blacks but was forced to because the Federal Government provided a service (a road) which was essential to the operation of the hotel.

When does forcing photographers to photograph gay weddings or forcing bakers to bake cakes for same become the more generalized argument that you can force someone to do works which are completely against his or her morals?

The above is why liberals are so scared of what the Supreme Court would decide, and why they are pushing hard to secure a majority on that Court. That a freedom of association might come to be scares them deeply.

unclesmrgol on August 23, 2014 at 12:20 PM

“It’s like groundhog day,” Becket Fund notes elsewhere, “over and over and over again.” The courts will likely agree, especially when it comes to least-burdensome routes for for-profit businesses.

Liberals are like a old ram just keep backing up and charging again and again, you either leave the lot it’s in or dispose of it. There is no middle ground.

wifarmboy on August 23, 2014 at 12:20 PM

Effective immediately, the U.S. will start allowing faith-affiliated charities, colleges and hospitals to notify the government — rather than their insurers — that they object to birth control on religious grounds.

Is this the USA or is it now the Marxist States of America? We as a people don’t have to continue to accept this crap.

bgibbs1000 on August 23, 2014 at 12:35 PM

But these Obamacare posts are about whistling past the graveyard, by next Novemeber Democrats will be openly running on the ACA. Mark my words.

libfreeordie on December 20, 2013 at 10:14 AM

Schadenfreude on August 23, 2014 at 12:36 PM

Shhhhh…..we don’t talk about obamacare around here anymore.

everdiso on July 22, 2014 at 1:27 PM

Schadenfreude on August 23, 2014 at 12:37 PM

Remember when Nancy Pelosi said about Obamacare:

“We have to pass it, to find out what’s in it”

A physician called into a radio show and said:

“That’s the definition of a stool sample”.

That pretty well sums it up.

Schadenfreude on August 23, 2014 at 12:41 PM

Enjoy your flight, dummies.

Schadenfreude on August 23, 2014 at 12:44 PM

Schadenfreude on August 23, 2014 at 12:41 PM

Best description I have seen yet. Covers everything about it.

wifarmboy on August 23, 2014 at 12:46 PM

Best description I have seen yet. Covers everything about it.

wifarmboy on August 23, 2014 at 12:46 PM

Indeed, wifarmboy. Hope your weekend goes good.

Our overlords, may they all spontaneously combust, on their hammers, brooms and petards.

Schadenfreude on August 23, 2014 at 12:49 PM

In the Navy, when a ship’s in as bad a shape as BarryCare, the admiral has the good grace to have a destroyer put a couple of torpedoes in her and sink her.

formwiz on August 23, 2014 at 12:50 PM

Indeed, wifarmboy. Hope your weekend goes good.

Our overlords, may they all spontaneously combust, on their hammers, brooms and petards.

Schadenfreude on August 23, 2014 at 12:49 PM

Have a good weekend too. They are not our overlords as long as we fight them to the end.

wifarmboy on August 23, 2014 at 12:54 PM

As a Protestant, I don’t wish to bash my Roman Catholic brethren. But as a matter of historical fact I’ve been telling them since the late 1950′s that the Catholic church has been leaning hard left. They seem more interested in the “social ” gospel, which is modified Marxism. (They have not been alone. Protestant seminaries have been right there with them.) They have supported increasingly intrusive government at every level, especially at the Federal level and it’s finally turned to devour THEM. Will they wake up? Time will tell.

oldleprechaun on August 23, 2014 at 12:55 PM

E-mail floater

The definition of the word Conundrum is: something that is puzzling or confusing.

Here are six Conundrums of socialism in the United States of America:
1. America is capitalist and greedy – yet half of the population is subsidized.
2. Half of the population is subsidized – yet they think they are victims.
3. They think they are victims – yet their representatives run the government.
4. Their representatives run the government – yet the poor keep getting poorer.
5. The poor keep getting poorer – yet they have things that people in other countries only dream about.
6. They have things that people in other countries only dream about – yet they want America to be more like those other countries.
Think about it! And that, my friends, pretty much sums up the USA in the 21st Century.

Makes you wonder who is doing the math.

These three, short sentences tell you a lot about the direction of our current government and cultural environment:
1. We are advised to NOT judge ALL Muslims by the actions of a few lunatics, but we are encouraged to judge ALL gun owners by the actions of a few lunatics.
Funny how that works. And here’s another one worth considering…

2. Seems we constantly hear about how Social Security is going to run out of money. But we never hear about welfare or food stamps running out of money? What’s interesting is the first group “worked for” their money, but the second didn’t.
Think about it…..and Last but not least,

3. Why are we cutting benefits for our veterans, no pay raises for our military and cutting our army to a level lower than before WWII, but we are NOT stopping the payments or benefits to illegal aliens.
Am I the only one missing something?

Schadenfreude on August 23, 2014 at 12:58 PM

Now there you right wing, KKK loving Tea Partier’s go again complaining about Obama, he gives you want you want, but your never satisfied. (Headlines For Liberal Media).

DDay on August 23, 2014 at 12:59 PM

The thought occurs: with all these Friday night dumps, why don’t the MSM do Saturday morning political news shows?

Silly question, I know.

PersonFromPorlock on August 23, 2014 at 1:00 PM

e thought occurs: with all these Friday night dumps, why don’t the MSM do Saturday morning political news shows?

Silly question, I know.

PersonFromPorlock on August 23, 2014 at 1:00 PM

Too hungover from partying with the politicians on Friday night?

wifarmboy on August 23, 2014 at 1:07 PM

I read something interesting about this decision when it first came down but haven’t heard anything about it since.

While the left was so exercised about Hobby Lobby winning the right to refuse to pay for 4 out of 20 methods of birth control, Catholics supposedly won the right to refuse to pay for ALL methods of birth control.

Hobby Lobby only objected to 4 methods and so that’s all they won on. Hobby Lobby covers/pays for the other 16 methods. But winning that exemption apparently means non-profits don’t have to cover/pay for any birth control methods they find to be against their religious restrictions. Object to all methods on religious grounds, pay for none.

Meremortal on August 23, 2014 at 1:17 PM

The Government has won this one as long as they require insurers to cover abortions and abortifacients and contraceptives. What an insurer is required to do defines the landscape. The biggest win for conservatives will be when insurers don’t have to provide coverage for things which are against their faith, and employers are allowed to contract with said insurers for coverage.

All of this is just a cover for the real target — insurers.

unclesmrgol on August 23, 2014 at 1:20 PM

Hahahahahaha…

“Well it’s Groundhog Day … again“.

Jaibones on August 23, 2014 at 1:22 PM

Or do you prefer…

“This is pitiful. A thousand people freezing their butts off waiting to worship a rat. What a hype.”

Pretty much sums it up for Obama’s entire presidency.

Jaibones on August 23, 2014 at 1:27 PM

I’ll note that AP’s writer Josh Lederman promotes the Obama Administration’s false narratives. He repeats talking points that conflate objections to abortifacients and abortions to objection to all forms of birth control. He repeats the patent falsehood that the “accomodations” of the Obama Administration prevent denial of access to birth control.

For anyone who wants to challenge this jackhole on his grossly misleading regurgitation of WH propaganda, Lederman’s twitter handle is @joshledermanAP, and this is the link to his tweet promoting this article.. Be sure to include @AP in your comments.

And keep it clean, please. Exposing these liars and hypocrites in the social media isn’t facilitated by personal insults.

novaculus on August 23, 2014 at 1:34 PM

Perfect, Schad:

Here are six Conundrums of socialism in the United States of America:
1. America is capitalist and greedy – yet half of the population is subsidized.
2. Half of the population is subsidized – yet they think they are victims.
3. They think they are victims – yet their representatives run the government.
4. Their representatives run the government – yet the poor keep getting poorer.
5. The poor keep getting poorer – yet they have things that people in other countries only dream about.
6. They have things that people in other countries only dream about – yet they want America to be more like those other countries.

And that, my friends, pretty much sums up the USA in the 21st Century.

Am I the only one missing something?

Schadenfreude on August 23, 2014 at 12:58 PM

To be a conservative in 2014 America is to constantly wonder if you are the last sane person on earth. We’re with you, Homes.

Jaibones on August 23, 2014 at 1:40 PM

After getting stung two months ago by the Hobby Lobby decision, the Obama administration had to go back to the drawing board to salvage the HHS contraception mandate.

To heck with this stuff. As an old gazook, I want to hear about the Obamacare death squads. You know: the Bureau of “Weed the People.”

Dr. Charles G. Waugh on August 23, 2014 at 1:49 PM

Here are six Conundrums of socialism in the United States of America:

Schadenfreude on August 23, 2014 at 12:58 PM

7. We are such a racist and unjust nation that millions, that will be
considered minorities once in the US, voluntarily enter legally
and illegally.

Buckshots on August 23, 2014 at 1:53 PM

Here are six Conundrums of socialism in the United States of America:

Schadenfreude on August 23, 2014 at 12:58 PM

7. We are such a racist and unjust nation that millions, that will be
considered minorities once in the US, voluntarily enter legally
and illegally.

Buckshots on August 23, 2014 at 1:53 PM

Correction:

7. We are such a racist, unjust, violence ridden, gun-toting, war mongering nation that millions, that will be considered minorities once in the US, voluntarily enter legally and illegally.

Buckshots on August 23, 2014 at 1:58 PM

nothing to worry about guys, boehner and the gop have your back

-hotair staff

renalin on August 23, 2014 at 2:00 PM

nothing to worry about guys, boehner and the gop have your back

-hotair staff

renalin on August 23, 2014 at 2:00 PM

And with men and women in Congress like McCain, Graham, Ryan, Susan whatever in the hell is her last name and so many more why would anyone concern themselves with the future of the nation.

Buckshots on August 23, 2014 at 2:11 PM

I love how we pretend we have all this freedom, when in fact we are completely at the mercy of the federal government. We have rule by decree; who knows what tomorrow will bring? The court system, which is supposed to be the last bulwark of protection for the constitution, is now in the process of deciding which kind of chains we should all wear in this post-constitutional, big-government, corporatist tyranny. Who gives a rip what decision they make here? This is like getting to decide where the urinal in our cell block should be located. Oooh, I think it’ll look nice right over there next to the bars and the cinderblocks.

stout77 on August 23, 2014 at 2:19 PM

Let’s see. the insurance company pays for the contraceptives. And who’s rates are they going to raise at renewal time. the employer-whether profit or non-profit. there is no accomodation for this.

gerrym51 on August 23, 2014 at 2:22 PM

Lipstick on a pig comes to mind

Pelosi Schmelosi on August 23, 2014 at 2:38 PM

This PPACA thing is going to implode and collapse of its own weight. There is no way this house of cards can be reconciled with good governance and effective health insurance provisions.

ExpressoBold on August 23, 2014 at 3:27 PM

The thought occurs: with all these Friday night dumps, why don’t the MSM do Saturday morning political news shows?

Silly question, I know.

PersonFromPorlock on August 23, 2014 at 1:00 PM

Remember when Nancy Pelosi said about Obamacare:

“We have to pass it, to find out what’s in it”

A physician called into a radio show and said:

“That’s the definition of a stool sample”.

That pretty well sums it up.

Schadenfreude on August 23, 2014 at 12:41 PM

The liberals are the Klingons orbiting Uranus.

partsnlabor on August 23, 2014 at 3:59 PM

I dunno but wouldn’t this have to come from Congress? As like an amendment or something?

Akzed on August 23, 2014 at 11:38 AM

The original birth control mandate didn’t come from congress, isn’t part of any law, and certainly wasn’t in the ACA.

It was an HHS requirement from the start. SO no, it wouldn’t require an act of Congress for an executive branch office to change their internal decision.

Of course that decision doesn’t carry as much weight as a law would; as they found out when they ran headlong into the RFRA… and they’ll find out again when they do the same thing.

gekkobear on August 23, 2014 at 4:14 PM

The left will not be happy until nuns joyfully pay for birth control.

Happy Nomad on August 23, 2014 at 5:08 PM

Note: Penalty for providing health care coverage without no-copay birth control is 18X-19X the penalty for not providing health care coverage at all.

Anyone think this isn’t a conspiracy to force people into the federal exchange?

J-Paul00 on August 23, 2014 at 7:43 PM

Will Muslim organizations also pay for birth control?

virgo on August 24, 2014 at 12:26 AM

When Obama and the DemoRats are told NO means NO, Obama says NO IT DOESN’T. Stop me if you can! But unless you can, I am going to do what I want to do. Sqru YOU!

Nat George on August 24, 2014 at 11:29 AM