Obama’s New ‘Accommodation’ Offers Limited Reprieve, Most Lawsuits Will Continue

Latest HHS mandate proposal still excludes Christian-owned businesses, as well as Catholic hospitals and universities.

WASHINGTON -- On Feb. 1, the Obama administration announced the latest modification to its 2012 proposed “accommodation” for religious institutions that object to the federal contraception mandate.

The announcement prompted a flurry of news reports asserting a breakthrough in the yearlong impasse between the administration and religious employers — nonprofits and for-profits — that oppose the mandate on moral grounds.

But the U.S. Conference of Catholic Bishops declined to comment until the proposal had been adequately reviewed, while the Becket Fund for Religious Liberty and other organizations defending plaintiffs in legal challenges to the HHS mandate said the modifications would not help most of their clients.

“Today, the administration is taking the next step in providing women across the nation with coverage of recommended preventive care at no cost, while respecting religious concerns,” said Health and Human Services Secretary Kathleen Sebelius. “We will continue to work with faith-based organizations, women’s organizations, insurers and others to achieve these goals.”

Yet after legal experts involved in HHS mandate cases quickly reviewed the government’s latest proposal, they could identify only a modest improvement: Catholic dioceses will likely be exempted from the mandated coverage. However, Catholic hospitals, social agencies and universities will not — though HHS proposed other ways to provide the required benefits without any direct financial or administrative involvement by objecting religious nonprofits.

“We are extremely disappointed with today’s announcement. HHS waited nearly a year and then gave us a proposed rule that still burdens religious liberty. It also gives no concrete guidance to self-insured religious organizations,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty.

“Given that today’s proposed rule was prompted in part by the D.C. Circuit’s order in the Wheaton College case, that is a remarkable and surprising omission,” Duncan said.

At present, there are 44 legal challenges to the HHS mandate, and the administration has sought to have many dismissed by arguing that forthcoming regulations would resolve the dispute.

However, the promised changes have not been finalized. Several recent rulings expressed impatience with the government's stance, and the D.C. Circuit Court of Appeals directed the government to provide an update by mid-February. 

During a Feb. 1 press call, Duncan said he could not be sure how the new proposal would likely affect some of the legal challenges, and he did not know if the D.C. Circuit Court would be content with the latest modification.

But Duncan said his organization would continue to press for broad exemptions and conscience protections for all nonprofits and for-profit employers who object to the mandate: “We remain committed to protecting religious liberty until the administration recognizes the conscience rights of all Americans.”

Cardinal Timothy Dolan of New York, president of the bishops' conference, issued a brief statement that said the bishops would “welcome the opportunity to study the proposed regulations closely. We look forward to issuing a more detailed statement later.”

Significantly, Sister Carol Keehan, the president and CEO of the Catholic Health Association, offered no endorsement of the administration’s latest proposal and said that CHA would also be “studying” the plan.

A year ago, when Obama announced his Feb. 10, 2012, “accommodation,” Sister Carol said she was “pleased” with the plan, but after a lengthy process of consultation with her membership, she subsequently issued a second statement that called on the administration to “abandon” its narrow religious exemption — a demand that legal experts contend has still not been met.

“Now that a new proposed rule has been released for review and comment, we look forward to studying it in relation to our members’ expressed concerns and sharing our assessment of the changes,” read Sister Carol’s Feb. 1 statement.

The administration’s latest proposal comes a year after President Obama’s initial “accommodation” sparked an often-divisive debate among Catholic commentators and partisan forces about whether the U.S. bishops were right to oppose any modified regulations that did not exempt all Catholic institutions but did suggest some flexibility on how such employers might be in compliance with the rule without directly providing the services.

There was also intense debate about whether the bishops should back broad conscience rights for all employers, including for-profits, or focus on shielding Church institutions.  But Archbishop William Lori, the chairman of the USCCB’s Ad Hoc Committee for Religious Liberty, insisted that the rights of all citizens should be protected.


The New Proposal

The Feb. 1 proposal offered no reprieve for businesses like Hobby Lobby, the retail chain that challenged the HHS mandate in court and faces large fines if it does not comply with the mandate.

“The rule continues to completely deny religious freedom to families engaged in business and even to Tyndale House Bible publishers that gives its profits to charity," said Matt Bowman of the Alliance Defending Freedom, which represents a number of plaintiffs challenging the HHS mandate in court.

But the plan did offer additional guidance on which religious institutions would be exempted from the mandate. It also suggested solutions for self-insured employers that were not exempt.

The government’s plan is to allow Catholic hospitals and universities to offer employee health plans that do not directly provide free contraception and other “preventive services” for women.

That coverage would be available through a stand-alone policy created solely to provide the co-pay-free services, and the government said there would be no additional charge for that provision.The insurer that administers the health plan would secure “separate individual health-insurance policies for contraceptive coverage from an issuer providing such polices.” A more complicated plan was unveiled for religious institutions that self-insure.

For-profit companies and nonprofits that do not have an explicitly religious mission, such as pro-life organizations, could not avail themselves of this stand-alone policy.

The Becket Fund’s Duncan described the regulations as “opaque,” and several plaintiffs represented by the Becket Fund were still reviewing the government-suggested modifications.

“We will continue to study this notice with our attorneys, but are highly doubtful it will provide EWTN with any relief from this immoral mandate,” said Michael Warsaw, president and CEO of EWTN Global Catholic Network, which filed a legal challenge to HHS mandate last year and is represented by the Becket Fund.

The Register is a service of EWTN.


Moral Concerns

Given the complexity of the regulations, no theologian contacted by the Register would immediately comment on how they might address a key objection of the U.S. bishops:  Catholic institutions cannot countenance the use of their health plans to provide access to services proscribed by Church teaching.

However, pro-life groups were prepared to weigh in on that thorny issue with respect to the latest proposal.  

“The administration claims that it is relieving the employer of the moral conflict by obliging the insurer to pay for the objected-to drugs. This is a subterfuge,” stated the National Right to Life Committee,  as the employees would not be receiving “the services if the religious employer wa,s not paying for the health plan.”

Gerard Bradley, a top constitutional scholar at the University of Notre Dame, told the Register that “the proposal refines the administration's earlier efforts to somehow insulate the colleges and universities from immoral complicity in contraception, mainly by shifting — at least nominally — the cost and administration of the immoral services to either the health-insurance issuer (think Blue Cross) or to the plan administrator (for self-insured entities, such as Notre Dame).”

Said Bradley, “This proposal adds some additional layering to the earlier attempts to insulate the schools, but nothing of decisive moral significance is included.”

Legal experts like Bradley are cautious about issuing a full judgment of the proposal, however, noting that they must still review HHS’ unexpected and unusual use of Internal Revenue Service rules to limit exempted religious employers to those “that are primarily houses of worship” and their directly integrated entities, as well as religious orders.

“Gauging the net effect of the new proposal is therefore hazardous. But one can say with confidence the following: Religious hospitals are, as before, not exempt ‘religious employers,’” said Bradley.

He added that “religious charities are very likely not exempt, either, unless they are run out of a church or are very tightly integrated with a church. So, a parish or even a diocese’s St. Vincent de Paul operations would probably be an exempt religious employer, whereas Catholic Charities would not be.”

“The new proposal makes it more apparent than it was before — and makes it very likely — that parish grade schools are exempt ‘religious employers'; Catholic high schools are a different matter. Some might qualify as ‘religious employers.’ Most probably will not,” he said.


Religious-Freedom Concerns

While some media accounts and administration allies have characterized the proposal as a strong response to religious-freedom concerns, Yuval Levin of the Ethics and Public Policy Center in Washington  noted in a Feb. 1 post on National Review that little had really changed: “HHS says so plainly in today’s rule: ‘This proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.’”

More importantly, said Levin, “This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. ... It’s not the right to do what you want; it is the right to do what you must.” 

Joan Frawley Desmond is the Register’s senior editor.

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