The Obama administration pulled another fast one last week, announcing its much-anticipated “compromise” on the free-birth-control rule as it affects religious employers opposed to contraception. There was hope in some quarters that the administration would back off its narrow religious exemption. Alas, a careful reading of the proposed rule shows that instead of offering a true modus vivendi, the administration launched a stealth power grab. Not only does the “compromise” maintain the previous aggressive government intrusion into the religious sphere, but it uses the controversy as a pretext for increasing Obamacare’s control over private insurers.
To understand the game that is afoot, a little history. Before last year, health insurance was regulated at the state level, and most of the states that required certain policies to cover birth control also offered conscience exemptions. Then came Obamacare. In February 2012, interpreting its authority under the new law, the Department of Health and Human Services issued a rule requiring all employers with 50 full-time workers or more to provide them health insurance covering contraception, sterilization, and morning-after pills free, with a conscience exemption limited to churches or associations of churches as well as the “exclusively religious activities” of these groups. Catholic employers were the most conspicuously affected, since the Catholic church’s position on these issues is well established. Thus, under last year’s rule, the Catholic Ecclesiastical Province of Newark presumably would not have had to provide free birth control, but most Catholic schools, universities, hospitals, and other charities would.
This ignited a firestorm. Bishops protested. Civil libertarians decried the assault on the First Amendment. Lawsuits were threatened. With an election near, the Obama administration delayed the effective date of the rule as it applied to these objecting religious organizations until August 1, 2013, and promised to fashion a new approach. The rule went into effect for all other employers on August 1, 2012.
Now the new rule has been unveiled. Simply extending to the schools and charities the same exemption churches enjoy would have been the obvious, most respectful, and constitutionally appropriate resolution of the controversy, short of doing away with the mandate entirely. But that isn’t the Obama way.
Instead, there will now be two classes of religious objectors under the rule. The first are the churches previously exempted. All other religious nonprofits opposed to contraception—the ones about which the big fuss was made—will receive a mere “accommodation.”
This accommodation is smoke and mirrors. It requires all female employees (and eligible dependents, among them teenage girls) of the objecting groups to be covered for free contraception, like it or not. Here’s how the accommodation will work:
- The employer must comply with the provisions of the Affordable Care Act and purchase a general group health plan.
- The employer must certify to its insurance carrier that it objects to contraception for religious reasons.
- The insurance carrier then must “automatically enroll participants and beneficiaries in a separate health insurance policy that covers recommended contraceptive services.”
- The insurance carrier must provide this supplemental policy to employees free of charge.
Thus the religious employer’s purchase of health insurance—required by law—automatically triggers the free coverage of contraception.
This means that in many cases, even nuns will be insured for birth control. The objecting organizations remain complicit in furthering an activity their faith deems sinful—with no opt-out other than to break the law by not buying health insurance and then face stiff fines.
The proposed rule also impinges on the liberty of the private sector by compelling insurers to provide a free product to specified organizations for the purpose of furthering the administration’s goal of “gender equality” (as Department of Justice lawyers have argued in legal briefs). Thus, insurers will be able to charge companies like Google and Sears for contraception and sterilization coverage. They will also be able to charge churches that are not doctrinally opposed to birth control and thus do not qualify for either exemption or accommodation. But insurers will not be allowed to charge Catholic Charities or Georgetown University, while still having to provide contraceptive coverage—an act of blatant conscription.