Source: Public Discourse.

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.

The Mandate’s Three Categories of Employer

The mandate now divides employers into three categories. The first category is “religious employers,” a term now used to refer (borrowing from the tax code) to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.” The government will no longer insist that these employers serve or employ primarily their own co-religionists, nor that they be exclusively in the business of “inculcation of religious values.”

This category has grown but not by much; it might now include not only a parish ministry but its parochial school next door, but that is uncertain. It would not include, for instance, Belmont Abbey College (one of the litigants suing the government), despite the fact that it is owned by the Benedictine monks of Belmont Abbey. In any case, a “religious employer” in this first category is wholly exempt from the HHS mandate.

Not so an employer in the second category, called an “eligible organization,” defined as a nonprofit that has “religious objections” to the mandate and “holds itself out as a religious organization.” Such an employer will now receive the dubious gift of an “accommodation” intended to smother its conscience.

Under this arrangement, the employer’s contract with a health insurance company would not mention contraception coverage, but the female employees (and dependents) of childbearing age would be informed that the insurer provides the coverage at no cost to them. The administration’s eighty-page proposed rule makes multiple assurances that there will be no cost to the employer, either—a matter to which we will return—and this is certainly the feature on which the government will pin its hopes in court, pleading with judges that no employer can object to an arrangement that costs it nothing.

In the third category are all other employers, including all those in the for-profit sector as well as any nonprofit that does not “hold itself out” as religious. The administration has given no credence to the claims of commercial employers with religiously informed moral objections—some of which have prevailed in the preliminary proceedings of their suits in federal courts. On this the newly published rule is explicit, rejecting any proposal

that the definition of eligible organization extend to for-profit secular employers. Religious accommodations in related areas of federal law, such as the exemption for religious organizations under Title VII of the Civil Rights Act of 1964, are available to nonprofit religious organizations but not to for-profit secular organizations.

The administration’s ideology has led it to violate economic reality and logic, as well as religious freedom.

The rule claims that in the case of “eligible organizations” whose employees would be covered under the new “accommodation,” not only would the employees bear no costs, but the employer “would have no role in contracting, arranging, paying, or referring for this separate contraceptive coverage.” In at least two respects this claim is false.

Employers Still Have to Pay for Contraceptive Coverage

First, a typical employer contracting with a health insurer would thereby be choosing the company that provides the contraceptive coverage. If the employer changed insurance providers, the new would replace the old as provider of contraceptive coverage and all other coverage. This puts the lie to “no role in contracting.”

Second, is there truly “no role in  . . .  paying” for the mandated coverage? If neither the employer nor the employee is paying for the coverage, the only party left in the arrangement is the insurer. Does the administration now imagine that the commerce power extends to requiring corporations, specifically insurance companies, to give away goods and services for free?

No, there is no new constitutional theory here, only an old sleight of hand. The rule claims that “providing contraceptive coverage is at least cost neutral, and may result in cost-savings,” thanks to possible “lower costs from improvements in women’s health and fewer childbirths.”

Set aside, for our purposes, the revealing statement that the goal of “fewer childbirths” constitutes a great public good. Focus instead on the fact that this “cost-neutrality” or possible “cost-savings” is to be achieved by displacing other healthcare costs that the employer is presumptively paying for in its insurance premiums. In other words, disclaimers to the contrary notwithstanding, the employer will indeed be paying for contraceptive coverage, precisely by covering the costs of childbirth and other medical needs that the mandate is expected to reduce. There will be no additional charge for the contraceptive coverage, because it will already be paid for by existing coverage extending to other conditions.

Just a page after making this claim that the coverage will cost no one anything, the rule spends thirteen pages on a still-unsolved problem—how to make its “accommodation” work for a small number of self-insuring organizations (like the University of Notre Dame) that are otherwise eligible for it. In each alternative suggested, in which some third party takes over responsibility for contraceptive coverage, the same problem presents itself again and again—how to defray the costs of it.

In other words, after first claiming that contraceptive coverage will cost no one anything, the government immediately contradicts that claim by searching desperately for some way to “adjust” the “user fees” in “federally funded exchanges” so that health insurers’ costs will be “offset” and they will not lose money covering contraception that must be paid for somehow. Here the coverage’s costs cannot be buried in a general insurance policy because it is distinct and separate coverage, not directly provided by the self-insuring employer. But the claim that no one will have to pay anything is revealed as unsustainable. The administration itself admits otherwise.

So much for economic reality. As for logic, consider the rule’s statement, quoted above, that for-profit employers deserve no relief from the contraception mandate because their religious claims get no standing in our civil rights laws.

The analogy is deeply flawed. Under Title VII, employers in general are barred from discriminating on religious (and other) grounds in their hiring and employment practices. Exceptions are made for circumstances where religion is “a bona fide occupational qualification,” as when a Baptist church seeks a member of its own faith to be its minister, or where a religious school or college prefers if possible to hire members of its own faith to be teachers. These exceptions, grounded in an understanding of the First Amendment’s protection of religion, are characterized as “religious accommodations” by the Obama administration, as though they were a public policy option in the gift of the government.

But the for-profit employers currently suing the government over the HHS mandate are not claiming that exceptions such as the one in Title VII should be expanded to cover their employment practices—because they are not seeking a right to discriminate on any religious basis in their hiring. They seek only a recognition that they too have the religious freedom guaranteed by the First Amendment and the Religious Freedom Restoration Act, when it comes to being forced to undertake actions that their faith condemns. That freedom is not denied them by any implications of our nation’s civil rights laws, as the Obama administration suggests.

The Government Declares Who Has Religious Freedom and How Much

This brings us to the most grievous moral and constitutional failing of the administration’s latest gambit. It presumes that the government has the power to say who has any religious freedom, and how much, when each party affected is identically situated. In the first category of employers under the HHS mandate, a real-life counterpart to Father O’Malley of St. Mary’s parish may be exempt from providing contraceptive coverage for Sister Mary Benedict and the other female teachers in his parish school.

But O’Malley is no more “religious,” the imperatives of his faith press on him no more heavily, and the claims of religious freedom are no more serious for him, than is true in the case of President William Armstrong of Colorado Christian University, an interdenominational university currently in litigation against the mandate. CCU is placed in the second category of “eligible organizations” by the Obama administration—eligible, that is, to be complicit in the falsehood that it will neither contract nor pay for contraceptive and abortifacient coverage for its female employees.

And Armstrong is no more “religious,” no more bound by the strictures of faith, and no more protected by the shield of the First Amendment than the Hahn family of Conestoga Wood Specialties, the Mennonite owners of a furniture manufacturer in Pennsylvania. The Hahns get neither an exemption from the HHS mandate nor an “accommodation.” They must simply violate their consciences openly, without even the pretended grace of self-deception.

Yet all these employers—the parish priest, the Christian college president, and the Mennonite manufacturer—are identically situated. The priest is not “more religious,” or protected more fully in these circumstances, than the college president, whose case in turn is no stronger than that of the Mennonite furniture-maker.

The priest, the educator in a religious setting, and the layman in the commercial economy: All are children of God, subject first (as James Madison said) to the “Governour of the Universe” before any earthly governor. All are entitled equally to believe, and to act on the belief, that the salvation of their souls is at stake in the question whether they will obey the government in Washington or the Governor above.

(Indeed, as I argued a year ago, even the non-religious—though lacking a claim defensible under the First Amendment’s protection of religious freedom—are capable of stating a conscientious moral objection to the government’s command that they commit a wrong or pay a penalty, which is one reason why the Catholic bishops have insisted from the first that the only “exemption” worth discussing is a wholesale rescission of the HHS mandate.)

But in the cramped freedom calculus of the Obama administration, one of these identically situated employers—all, in truth, equally religious—gets an exemption, another gets an “accommodation,” and a third gets nothing at all. The government has decided that religious freedom is at its maximum in houses of worship, is attenuated in charities, colleges, and other institutions, and is nonexistent elsewhere in the productive economy.

This in fact has been its argument in courts of law—that for-profit employers have no religious freedom that the government is bound to respect. The administration has conceded that religious freedom is at stake in the struggle over its mandate, but it has dictated for whom that freedom exists, when it is truly the common possession of all.

In one of the most astonishing passages in its new rulemaking announcement, the Obama administration says this:

[N]othing in these proposed rules would preclude employers or others from expressing their opposition, if any, to the use of contraceptives; require anyone to use contraceptives; or require health care providers to prescribe contraceptives if doing so is against their religious beliefs.

Well, not yet anyway.

If that seems to you like an alarmist reaction to the administration’s reassurance, ask yourself this. 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?

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.