The Obama administration is now telling liberals that it is not backing down on its new health-care mandate, even as it coos of compromise to religious groups appalled by it. These messages may seem to be contradictory, but actually the administration has been quite consistent: Nothing it has ever said on this issue has been trustworthy.
Kathleen Sebelius, the secretary of health and human services, has been the leading misleader. The administration, recall, has decided that almost all employers must cover contraception, sterilization, and abortifacients in their employees’ insurance plans — even if those employers are religious universities, hospitals, and charities that reject those practices.
So she has tried to make the mandate seem more moderate than it is. In USA Today, she writes that “in the rule we put forward, we specifically carved out from the policy religious organizations that primarily employ people of their own faith.” Taken at face value, this statement would seem to imply that Notre Dame could escape the mandate if it fired its non-Catholic employees. That policy would be outrageous: What gives the federal government the legitimate authority to tell a religious institution how it should structure its mission? But in fact the administration would make the university jump through several more hoops. It would also have to expel its non-Catholic students. And even these changes would not be enough, since the university would continue to do much more than attempt to inculcate religious beliefs in its students — which is another test the administration requires for the exemption to apply.
Sebelius says that three states have religious exemptions as narrow as the one the federal government has adopted. The notion that the federal government is imposing the model of three very liberal states — New York, Oregon, and Vermont — on the entire country is not comforting. But even in those states, some employers have been able to sidestep the mandates by, for example, organizing their insurance under federal regulation, which until now has not overridden conscience. The new mandate eliminates that escape route.
Joel Hunter, one of Obama’s pet pastors, says “this policy can be nuanced.” (“I have come to bring nuance,” as Matthew 10:34 does not say.) He is wrong. Either the administration will back off, and allow religious organizations to follow their consciences, or it will not. If it chooses the former course, it may still find a way to increase access to contraception — which is not especially scarce, by the way — but it will have to replace its current policy, not just “nuance” it.
Two bills in Congress would reverse the administration’s policy. Senator Roy Blunt (R., Mo.) and Representative Jeff Fortenberry (R., Neb.) have legislation to protect conscience rights generally. A bill from Senator Marco Rubio (R., Fla.) would allow religious groups to refrain from providing sterilization and contraception. Both bills are praiseworthy, but both have drawbacks. The former, broader bill might allow liberals to conjure up hypothetical scenarios — what if a pharmacist decided he had a moral objection to painkillers? — rather than address the administration’s hostility to religious freedom.
The narrower bill, on the other hand, would leave conscience rights weaker than they were at the start of the Obama administration. Before Obamacare, a businessman had no obligation under federal law to provide health insurance covering anything he considered immoral. Whether his objection was moral or religious did not matter, and nor did whether his organization met criteria an administration in Washington, D.C., had established. Leaving these matters to individual consciences and free labor markets has worked fine, and not seriously impeded anyone’s access to needed medical services. Any “compromise” the administration offers should be measured against this standard: the standard of the pre-Obama American tradition of religious freedom, a tradition that has constitutional protection even if it lacks the administration’s sympathy.
editor’s note: This article has been amended since its initial publication.