Birth Control Mandate Revised by Default, Not Design
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The Fiscal Times
February 1, 2013

One year after the Obama administration touched off a fight with the Catholic Church and a wide range of religious organizations over the freedom of religious expression, contraception, and intervention in free-market choice, Health and Human Services retreated – a little.  HHS revised its contraception mandate to restrict religious institutions, this time including affiliated non-profit organizations such as schools, hospitals, and charities.  But those changes do not solve the core complaint over government defining religious expression, which the Obama administration had no intention of resolving

The changes on Friday come in large part from a court ruling a few months earlier.  Attorneys for HHS had argued in federal court in response to a lawsuit that the plaintiffs – two universities with ties to churches, Belmont Abbey College and Wheaton College – had filed their complaint too soon.  HHS had no intention of enforcing the mandate “in its current form,” and was planning a modification in order to avoid penalizing religious organizations. 

Fine, the court replied – and then ordered HHS to provide the modified regulation by March 31, 2013.  The judge ruled that the legal argument by HHS attorneys constituted a “binding commitment” for the modification.  The court also ruled that its jurisdiction would continue until the government submitted a rewritten regulation that satisfied the court that the plaintiffs would have no further standing for their complaint.  In short, the Obama administration had been hoist with its own petard.

So it was hardly in the spirit of cooperation and compromise that the new HHS regulation was promulgated. 

But what of the new regulation itself?  It’s good news – for churches. The document notes that HHS has eliminated the bizarre requirements that exempt organizations can only employ and serve “primarily” those who belong to its faith.  Furthermore, exemptions will now be extended to any non-profit organization that “holds itself out as a religious organization,” and which “self-certifies that it meets these criteria,” as long as it “specifies the contraceptive service for which it objects to providing coverage.”  That would cover hospitals, schools, and charities run by Catholics and other religions.

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.

“Issuers generally would find that providing such contraceptive coverage is cost neutral because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths,” HHS writes. “The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.”

In other words, instead of the employers footing the bill for contraception coverage, either the insurers or the government will pick it up.  HHS helpfully tells insurers that birth control will lower costs, but that assumes that these women aren’t accessing birth control already.  A 20-year study by the CDC  found no issues with access for women who wanted to avoid pregnancy, so the basis of that assumption is as mystifying as the assumption that insurers couldn’t calculate their own best interests in the first place.  If the HHS argument is valid, insurers would already provide free birth control.  After all, they are in the business of risk avoidance.

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.  HHS continues to impose yet another cost on businesses and insurers at a time when job creation remains stagnant and the economy is contracting.  At the same time, the Obama administration continues to operate on two levels of condescension: presuming to tell business owners what their religious beliefs should be and treating women in the workplace as children who can’t take care of their own birth control needs without a patronizing freebie from their bosses.

The Obama administration may have modified the HHS mandate, but they haven’t modified their arrogance a single whit.

Political analyst Edward Morrissey has been writing and blogging since 2003. He is also a senior editor at Hot Air, part of the Townhall/Hot Air group of conservative publications, and hosts a weekly radio show in Minnesota.