How does a White House under fire for lack of action or lack of awareness of a growing terrorist threat change the narrative? Apparently, someone in the Obama administration thought that redoubling efforts to get nuns to violate their religious principles would make a good start.
The summer of 2014 started badly for the Department of Health and Human Services and its regulatory scheme to force all employers to pay for birth control. The Supreme Court kicked the contraception mandate for Hobby Lobby, Conestoga Wood, and other similar for-profit businesses whose tightly held ownership had specific religious objections to some or all forms of mandated contraception products and services.
After that big loss, HHS went back to the drawing board to re-craft its so-called “accommodation” in reaction to the decision authored by Justice Samuel Alito. They also put on hold their pending legal actions in other contraception-mandate cases while calibrating their response.
Three weeks ago, HHS announced its revamped accommodation in what’s known in political circles as the Friday afternoon document dump. It didn’t take long to see why the new regulations went out when the media cycle for the week had already concluded. The change not only didn’t address the issue of protecting religious expression, it explicitly recreated the very same problem that led to the 5-4 Hobby Lobby decision.
Alito wrote, “HHS has already established an accommodation for nonprofit organizations with religious objections” in Form 700, and noted that HHS did not offer that to for-profit organizations. That was enough evidence that HHS had not met the threshold under the Religious Freedom Restoration Act (RFRA) to use the “least-burdensome method” when servicing a compelling state interest that substantially infringes on religious expression, which the court found that the mandate did in this case. Therefore, the court ruled for Hobby Lobby et al without even considering whether Form 700 was legal, or whether free contraception was a legitimately compelling state interest.
The revamped accommodation recreates the same issue. HHS will now allow Hobby Lobby and other similarly situated businesses to use Form 700 to get a religious exemption, which would have addressed the Supreme Court’s concern – except that they are also allowing non-profits to simply send a letter announcing their refusal based on religious concerns, removing the requirement to sign Form 700. Once again, that leaves HHS in the position of demonstrating that it has not offered for-profit businesses the least-burdensome method for dealing with infringement, by HHS’ own definition.
Why did HHS make this rather obvious mistake? They wanted to moot the pending cases against the contraception mandate involving non-profit religious organizations, including the most embarrassing one of all involving the Little Sisters of the Poor and their hospice in Denver, Colorado.
The Obama administration refuses to grant the order an exemption as a religious organization in part because it services people of all faiths and none at all. The price for that policy of non-discrimination is having HHS demand that they pay for coverage for free birth control for their staff, even though the Catholic Church considers contraception an intrinsic evil.
This week, HHS filed a motion at the 10th Circuit demanding that the nuns submit to the new accommodation announced three weeks ago. Their attorneys pointed out that the Obama administration had already issued indiscriminate waivers to the mandate without the need for a letter and wondered why HHS is working so hard to force nuns to enable their insurance carrier to comply with a mandate that violates their conscience.
“The federal government has many ways to deliver contraceptives,” Becket Fund attorney Adele Keim pointed out. “There’s no reason it should force nuns to do that for them; the First Amendment and Religious Freedom Restoration Act offer two very good reasons why it shouldn’t.”
The new accommodation and the quiet submission of a new demand for nuns to facilitate the distribution of birth control may have been designed to keep the unpopular contraception mandate under the radar. Unfortunately for the Obama administration, it won’t work any better than their attempts to make Obamacare overall more popular.
The latest survey from the Kaiser Family Foundation shows that favorability of the law is still negative, even after the White House bragged about the enrollment figures in April and May. Only 35 percent of all respondents see the new law positively, less than a year ago before its rollout and slightly down from July’s 37 percent. Unfavorable opinion has dropped as well, from a peak of 53 percent in July to 47 percent now, but almost all of that change has gone into the “don’t know/refused” category.
Nor will Obamacare get any more popular over the next couple of months. Industry analyst Bob Laszewski notes that the back-end accounting system that was supposed to be ready last fall to check eligibility for subsidies and ensure enrollment won’t be in place for this new season of open enrollment, either. Thanks to that, auto-renewals will place consumers at risk for huge tax bills or big jumps in premiums. Most people will therefore need to re-enroll to recalculate their subsidies, adding to the traffic for new consumers whose employers may have stopped offering coverage due to the costs of the employer mandates, which come into effect for businesses with 200 or more employees in 2015.
There may be 10 million or more people trying to enroll between November 15 and December 15, who will then have the same issues of confirming their coverage that the lack of the back-end system created in the 2014 open-enrollment period last year and this year.
“The last couple of months have been very quiet for Obamacare,” Laszewski writes. “That is about to end.” And when that happens, the public-relations damage from bullying nuns who provide hospice care to the dying will be the least of the Obama administration’s worries.
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