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:
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.