Analysis of “accommodation” offered by the HHS

Matthew J. Franck, over at The Public Discourse,  has written an interesting analysis of the new rules proposed by the HHS.  You should read the entire article.  A few key points follow.

The mandate, as it will be changed should these rules be implemented, creates three categories of employer, and the government decides how much religious freedom each category of employer enjoys.  As Franck writes,

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 is probably the only positive change in these rules.  In fact, this category might include parish ministries, and might include a parish elementary school, but that’s not clear.  What is clear is that it would not include a college or university.  This first category of employer is exempt from the HHS mandate. 

The rules create a 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. 

This is the shell game which we have previously discussed.  The rules say that the religious employer won’t pay for the contraceptives, and the insurance company will offer them for free.  However, the employer must contract with the insurance company to provide the contraceptives.  

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. 

Here is the worst part of these rule changes:

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 HHS mandate treats all of the three people differently with respect to religious freedom.

…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.

For those that argue that there is no religious freedom issue at stake, a key point by Franck:

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.


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