President Barack Obama's attempt to calm the contraception mandate waters meets mixed reviews

Published: Friday, Feb. 10 2012 5:12 p.m. MST

President Barack Obama gestures while giving his State of the Union address on Capitol in Washington, Tuesday, Jan. 24, 2012. (AP Photo/Evan Vucci)

Associated Press

President Barack Obama announced a new compromise Friday designed to calm the troubled waters of his administration’s policy of requiring religious groups’ health care plans to cover contraception, sterilization and abortion-inducing drugs. The new effort quieted opposition in some corners but not in others.

In a prepared statement, the White House said the “religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.”

The Catholic Health Association, whose president Sister Carol Keehan had been caught in the crossfire, quickly embraced the offer. Keehan had supported Obamacare, providing key reassurance for many Catholics, but said she had felt betrayed by the new regulations.

“The Catholic Health Association is very pleased with the White House announcement that a resolution has been reached that protects the religious liberty and conscience rights of Catholic institutions,” CHA said in a statement.

But Rep. Chris Smith (NJ), a leading pro-life advocate, refused to back down, saying, “the White House Fact Sheet is riddled with doublespeak and contradiction. It states, for example, that religious employers ‘will not’ have to pay for abortion pills, sterilization and contraception, but their ‘insurance companies’ will. Who pays for the insurance policy? The religious employer.”

At the Los Angeles Times, John Healy called the compromise “magical thinking,” as if costs disappear when in fact they are actually hidden. “Making everyone in a pool carry coverage whether they need it or not spreads the cost,” Healy writes. “But costs faced by the insurer are the same — and when the care is provided with no out-of-pocket costs, the insurer's costs are likely to go up because more people will use it.” In short, Healy concluded that costs are diffused and passed on to all involved, and the religious objector still pays for the services.

On the legal front, the compromise may do little to calm matters. At the Becket Fund for Religious Liberty, which yesterday filed its third lawsuit against the mandate, senior counsel Hannah Smith was far from mollified. "The President's so-called compromise today is really just an accounting gimmick,” she said. “Insurance companies aren't going to pay for these services as an act of Christian kindness. It is the religious employer who will still be paying for these services by purchasing the insurance policies for their employees. This is no compromise at all.”

Moreover, Smith notes that the proposal does nothing for their client ETWN, the lay Catholic broadcasting network which filed suit yesterday. ETWN self-insures, and therefore is not helped by the compromise.

UCLA law professor Eugene Volokh doubts the new proposal changes anything on the legal front. The “threshold question” under federal law, Volokh said, is simply “whether the law requires the employer to do something that they consider to be religiously forbidden.”

“The law says that if the challenger sincerely believes they are being required to be complicit in sin,” he adds, “then it doesn’t matter how this is structured from an accounting perspective.”

At stake is not constitutional law, Volokh notes, but rather a statute, the Religious Freedom Restoration Act. Congress enacted RFRA in 1993 in response to a controversial 1990 decision that curtailed constitutional religious liberty protections.

The law requires the federal government to meet three tests: it must not target the believer’s faith, it must be serving a “compelling state interest,” and it must be narrowly tailored to serve its purpose in the “least restrictive means.”

Volokh cites the 1981 Thomas v. Review Board decision as a useful analogy. There a Jehovah’s Witness refused to work in a factory that produced turrets for tanks, saying it would make him complicit in war. Defenders of the action said the law didn't require the actual participation in war. The court emphatically sided with the believer.

While Thomas was decided under the earlier constitutional law rules, Volokh says the RFRA “principles today are very similar, namely that it is not up to us to decide what this guy sincerely believes.” The only real question, Volokh says, is whether the government has landed on the “least restrictive means of achieving some compelling state interest.”

Under RFRA, Volokh suggests, Courts may actually be more ready to strike down a regulation challenged by a believer, since the Courts would now not be acting against Congress, but rather enforcing Congressional will against an unelected bureaucracy.

Eric Schulzke writes on national politics for the Deseret News. He can be contacted at eschulzke@desnews.com.

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