HHS ‘compromise’: “80 pages of nothing new”

The basic mandate that employers with religious objections to the HHS contraceptive coverage still have to comply or pay punitive fines still stands. The latest fig leaf changes little, but it took a few days to wade through the dense and convoluted legalese the government issued to essentially say ‘we’re not willing to budge, more than an inch.’

There is nothing new about the administration deciding who gets exemptions and who doesn’t, and that’s the main point.

After nearly a year, the Obama administration released, on February 1, its latest version of a “compromise” with the employers who object, on religious grounds, to the Health and Human Services (HHS) mandate that their health plans cover no-cost access to sterilization services and contraceptives, including those that can act as abortifacients, destroying the early-stage embryo.

As many observers have already remarked, there is nothing substantively new in the administration’s proposal, which only formalizes and fills in details of a proposal it first floated last March, and continues to be based on the same dubious science.

Now facing more than forty lawsuits initiated by colleges, charities, and other religious nonprofits, as well as by for-profit companies whose owners have religiously informed moral objections, the Obama administration may hope that its latest gambit will persuade some credulous judges to toss some of the litigants’ cases.

But in truth, it has only revealed its own blinkered and tyrannical understanding of religious freedom, which it would sacrifice to a goal of “gender equality” that is at best only tenuously related to its free-contraception-for-all policy. And, if the judges attend closely to its arguments, it may even have severely weakened its case.

Well that’s interesting.

Matt Franck makes a good presentation there at Public Discourse on what this alleged compromise actually does. And he wraps it up with a challenge to the reader to do this thought exercise:

Given its stated hostility to any serious understanding of our first freedom, the right not just to worship but to live one’s faith in all one’s daily work, on what understanding of our remaining constitutional freedoms can the administration assure us that any of these other liberties still stands on a firm foundation?

Good question.

Also at Public Discourse was this well-reasoned and extraordinarily well presented analysis.

With last Friday’s rules, the government is claiming that after a year of a mostly losing record of religious freedom lawsuits, it has struck the perfect balance between two urgent goals: getting contraception into the hands of as many American women and girls as possible, and protecting Americans’ religious freedom.

The truth of the matter is quite different.

There are myriad problems inherent in the new rules. They still fail to protect the legally guaranteed religious freedom of religious institutions, for-profit employers, insurers, non-religious non-profit organizations, and individuals. Religious liberty is protected not only by the First Amendment of our Constitution, but also by the Religious Freedom Restoration Act.

They fail to understand the full nature of the free exercise of religion—that religion, whether practiced individually or by a group, requires being able to integrate one’s actions with one’s religious beliefs, especially when these don’t attack but advance the common good—here, the health and well-being of women and girls.

They trample on parents’ constitutionally-protected right to direct the upbringing of their daughters. And they reveal, still, an irrational zeal for a narrow category of drugs and devices, thus evincing a narrow and harmful understanding of women’s freedom as coincident with sexual expression.

Moreover, while the government tries to make us think that the new rules are hospitable to religious freedom, we shouldn’t overlook its continued failure to admit the bankruptcy of the mandate’s grounding “medical” claim: that unintended pregnancy is a kind of health crisis properly resolved with free contraception and early abortions.

Thank you, Helen Alvare, for such a sound argument.

Cardinal Timothy Dolan, president of the US bishops conference, said this latest attempt for cover is still unacceptable.

The Administration’s proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities. HHS offers what it calls an “accommodation,” rather than accepting the fact that these ministries are integral to our Church and worthy of the same exemption as our Catholic churches. And finally, it seems to take away something that we had previously—the ability of an exempt employer (such as a diocese) to extend its coverage to the employees of a ministry outside the exemption.

(The bishops’ document) United for Religious Freedom explained that the religious ministries not deemed “religious employers” would suffer the severe consequence of “be[ing] forced by government to violate their own teachings within their very own institutions.”After Friday, it appears that the government would require all employees in our “accommodated” ministries to have the illicit coverage—they may not opt out, nor even opt out for their children—under a separate policy.In part because of gaps in the proposed regulations, it is still unclear how directly these separate policies would be funded by objecting ministries, and what precise role those ministries would have in arranging for these separate policies.Thus, there remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities…

 the bishops explained that the “HHS mandate creates still a third class, those with no conscience protection at all:individuals who, in their daily lives, strive constantly to act in accordance with their faith and moral values.”This includes employers sponsoring and subsidizing the coverage, insurers writing it, and beneficiaries paying individual premiums for it.Friday’s action confirms that HHS has no intention to provide any exemption or accommodation at all to this “third class.”In obedience to our Judeo-Christian heritage, we have consistently taught our people to live their lives during the week to reflect the same beliefs that they proclaim on the Sabbath.We cannot now abandon them to be forced to violate their morally well-informed consciences.

Because the stakes are so high, we will not cease from our effort to assure that healthcare for all does not mean freedom for few.Throughout the past year, we have been assured by the Administration that we will not have to refer, pay for, or negotiate for the mandated coverage.We remain eager for the Administration to fulfill that pledge and to find acceptable solutions—we will affirm any genuine progress that is made, and we will redouble our efforts to overcome obstacles or setbacks.Thus, we welcome and will take seriously the Administration’s invitation to submit our concerns through formal comments, and we will do so in the hope that an acceptable solution can be found that respects the consciences of all.At the same time, we will continue to stand united with brother bishops, religious institutions, and individual citizens who seek redress in the courts for as long as this is necessary.

For now, this remains necessary.

The cases proceed through the courts, and the latest HHS proposal is likely a response to a DC Circuit Court judge who required the government to report back on what ‘accommodations’ it was making that it had promised would be forthcoming. This does not suffice, say Becket Fund attorneys representing the most cases against the federal mandate.

Today’s announcement of the Notice of Proposed Rulemaking on the HHS mandate leaves the religious liberty of millions of Americans unprotected.

“Today’s proposed rule does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby,” said Kyle Duncan, General Counsel for the Becket Fund for Religious Liberty.  “The administration obviously realizes that the HHS mandate puts constitutional rights at risk.  There would have been an easy way to resolve this—expanding the exemption—but the proposed rule expressly rejects that option.”

Becket Fund Executive Director Kristina Arriaga sent out this press release:

We’re all still reeling from the Administration’s announcement on the HHS Mandate last Friday, which, as it turns out, is 80 pages of nothing new.
 
The Administration’s proposal is murky on the details – in fact, it’s not at all clear how this would work, if it could work at all; but it’s clear that it still fails to protect our nation’s 237-year guarantee of religious liberty for millions of Americans.
 
As I mentioned in my email to you last Friday when the Obama Administration released this proposal “respecting the concerns of some religious organizations,” – their words, my emphasis – the millions of American entrepreneurs who want to live their lives and run their businesses with their faith intact are not covered even a stitch by this proposal.
 
They are still forced to choose between their conscience and their livelihood.  These entrepreneurs are winning big in court – 11 wins for businesspeople of faith to just 3 for the government –  yet the Administration still refuses to accept that religious liberty is even at issue in these cases.
 
So, as far as the Becket Fund is concerned, the fight against the HHS Mandate is far from over…

The government seems to have been so intent on defining religious liberty as narrowly as possible that they’ve drafted a convoluted 80-page proposal riddled with half-baked ideas and vague accounting schemes.

And, finally, says Helen Alvare…

…these proposed regulations show the government’s standing obsession with this narrow piece of the Affordable Care Act. From August 2011 to today, the White House and HHS have expended enormous amounts of time, written hundreds of pages of rules and amended rules and “safe harbor” provisions, occupied press conference time, re-election campaign ads, and delivered speeches—all to promote the notion that free contraception and early abortifacients are the near sum of women’s freedom.

It’s as clear, and offensive, as that.