WASHINGTON — As religious groups maintain their drumbeat of opposition to the new federal rule mandating contraception coverage for all private employer health plans, some commentators have identified Hawaii’s bill as a possible “compromise” that could address criticism.

But a key official in the U.S. Conference of Catholic Bishops says the Hawaii bill — repeatedly cited in media commentary — would not resolve the conference’s concerns and would, in any case, be overridden by the federal rule.

“I’ve reviewed the Hawaii law, and it’s not much of a compromise,” said Richard Doerflinger of the USCCB Secretariat of Pro-Life Activities and the bishops’ chief lobbyist on life issues in the nation’s capital. “The Hawaii contraceptive mandate has many of the same features as the new federal mandate.”

Like the federal rule, he said, the Hawaii bill “covers all FDA-approved ‘contraceptives’ (including drugs that can cause an abortion); and the religious exemption is very narrow (though it does not include the requirement that the religious organization serve only people of its own faith to be eligible).

“It adds an extra feature — the requirement that any religious organization that is exempt must still tell all enrollees how they may directly access contraceptive services and supplies in an expeditious manner.”

In other words, the Catholic Church must directly send women to drugs and devices that are morally wrong and can do harm to them.

Doerflinger also raised an additional concern about the federal rule that has received little attention: Catholic institutions will be required to make referrals for services the Church deems morally illicit.

“From the Obama administration’s press release of Jan. 20, it seems this referral requirement is about to be added to the federal mandate, actually making it worse,” he said.

Hannah Smith, the senior counsel for the Becket Fund for Religious Liberty, said her public-interest group was still evaluating the Hawaii bill.
“We are looking into the Hawaii issue more deeply,” said Smith. “The Hawaii plan sounds better than the federal mandate. Still, many employers may continue to object to being forced to tell people about ‘alternate ways’ they can violate Church teaching. As I understand it, the Hawaii plan would force religious employers to tell people where else they could get these drugs and services, which is objectionable as government-forced speech.”

A number of commentators — on television shows and on newspaper editorial pages — have cited the Hawaii bill as a workable solution, accommodating the administration’s desire to increase access to contraception while addressing the concerns of religious groups.

In his widely linked column that criticized the controversial federal rule as “botched,” E.J. Dionne, a self-identified liberal Catholic political commentator, proposed a “compromise idea” initially floated by Melissa Rogers, the former chairwoman of Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships.

“In The Washington Post’s ‘On Faith’ forum in October, she pointed to a Hawaii law under which religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing the fact and describing alternative ways for enrollees to access coverage for contraceptive services. The Hawaii law effectively required insurers to allow uncovered individuals to secure this coverage on their own at modest cost,” wrote Dionne.

“Unfortunately, the administration decided it lacked authority to implement a Hawaii-style solution. The Obama team should not have given up so easily, especially after it floated a version of this compromise with some Catholic service providers who thought it workable,” he said. “Obama would do well to revisit his decision on the Hawaii compromise.”

The Hill mentioned the Hawaii bill in a story today that cited Obama administration officials saying that “it was too early to say whether an optional “rider”— offered in states like Hawaii — would be included in the plan.”

Television talk shows have referenced the Hawaii bill, but Doerflinger contends the discussion is “irrelevant.”

“The administration says it is making no more changes to its mandate. The laws of Hawaii and every other state, and their exemptions, will be overridden by the sweeping national mandate,” stated Doerflinger.

But is that the case? With the unexpected backlash from religious groups, some commentators say the White House may still back down, if only to prevent the electoral consequences of Catholic “swing voters” shifting to the GOP ticket.

Today, The New York Times addressed this issue in a post,  “White House May Look to Compromise on Contraception Decision,” that quoted Obama’s senior campaign adviser, David Axelrod. On MSNBC this morning, Axelrod said the president would “look for a way” to address Catholics concerns.

“We certainly don’t want to abridge anyone’s religious freedoms, so we’re going to look for a way to move forward that both provides women with the preventive care that they need and respects the prerogatives of religious institutions,” Axelrod said.

He then repeated the administration’s claims that bolstered its position and good-faith effort to identify workable solutions. The USCCB characterized those arguments as “false” in a statement released on its website this week.

The story in the Times noted that “Mitt Romney, the president’s likely Republican opponent in the fall, seized on the issue in a campaign appearance in Colorado late Monday evening.”

Romney has initiated a petition campaign, reported the Times “to stop the attacks on religious liberty,” signaling that his campaign has made the issue a priority.

“The Obama administration is at it again,” Romney says in the introduction to the petition. “They are now using Obamacare to impose a secular vision on Americans who believe that they should not have their religious freedom taken away.”

Still, some pollsters and commentators suggest that while the Obama campaign may have miscalculated the extent of a Catholic backlash, it’s still possible that they have decided to accept the outcome. After all, those swing voters no longer provide the reliable base of support they once did in elections before they brought President Reagan to victory.

But what if the White House identifies a “compromise” measure that appears to address the concerns of religious groups and thus provides cover for the administration? For now, church leaders show no sign that they are willing to accept any compromise short of a total repeal of the contraception mandate.  But for the White House,  adoption of the Hawaii bill language, or something like it, may provide a political fix without really changing anything.

UPDATE: On Feb. 8, the Becket Fund’s Eric Rassbach sent this assessment of the Hawaii bill:

“Although the supposed “Hawaii Compromise” may look better than the current HHS mandate, it still isn’t constitutional. A federal version of the Hawaii approach would force religious employers to give instructions to their employees about how and where to obtain abortion-causing drugs and contraceptives.

“The “Hawaii Compromise” is actually *worse* in some ways than the current HHS mandate. The current extremely narrow religious exemption at least lets some religious organizations like churches out of compliance entirely. The Hawaii Compromise would appear to impose forced speech requirements even on the small sliver of religious objectors who are already exempt. 

“HHS does not have the authority under the Affordable Care Act to issue a “Hawaii Compromise” rule. We don’t think that the Affordable Care Act gives HHS the power to require religious institutions and individuals to pay for contraception, sterilization, and abortion-causing drugs; the “Hawaii Compromise” is even further outside the authority Congress gave to HHS as part of the Affordable Care Act. Indeed, few can believe that Congress really authorized HHS to take the anti-religion position it has thus far.

“Finally, the “Hawaii Compromise” points to a simple and obvious solution for the government: Why doesn’t the *government* just tell people where to get it? Why should there be some obsessive need to force religious objectors to be involved in this? If this were actually about access, the government would do just that. In reality this is a cram-down of religious individuals and institutions.

“In short, the “Hawaii Compromise” is not a compromise and is not constitutional,” concluded Rassbach.

Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.