by Quin Hillyer
In terms of both law and logic, the federal Department of Health and Human Services has utterly failed in its newest claims to “accommodate” religious institutions and others who object to paying for abortion-inducing drugs. The new “Notice of Proposed Rulemaking” on the ObamaCare/HHS insurance mandate is nothing but a smokescreen - even if it is a cleverly designed attempt to survive multiple court challenges.
First, let’s review where things stood before the amended ruling that HHS issued on February 1. Last year’s preliminary ruling would have required most employers with more than 50 workers to offer health insurance plans that include prescriptive contraception and abortion-inducing drugs. The only employees fully exempt were churches - and then if the vast majority of their employees and those they served were of the same religious denomination. So if a church set up a large, permanent soup kitchen, for instance, serving the poor regardless of the faith of those served, then the church would likely not be exempt - even if the clear teachings of the church considered abortion an exceedingly grave sin.
After many complaints from religiously affiliated schools, hospitals, and social services, HHS promised an “accommodation” described as a requirement that the insurance company, not the employer, “pay” for coverage of the controversial drugs. Of course, since the insurance company would still be paid by the employer for the rest of the insurance, it was a distinction without a difference, because funds are fungible. One way or another, no matter where the cost was put on an accounting ledger, the money would come from the employer - and the government would be forcing an employer to provide its workers with an insurance plan covering abortifacients.
That was nearly a year ago - but until last week, HHS had never actually promulgated the newly “accommodated” rule language. Lo and behold, it’s almost no different in effect from the first description of the accommodation. The only things that changed are the way the intrusive mandate is legally camouflaged.
The first supposed change is in defining which employers are totally exempt. Alas. the change is cosmetic only. As Yuval Levin noted at National Review Online, “In fact, HHS says so plainly in today’s rule: ‘this proposal would not expand the universe of employer plans that would qualify for the exemption beyond that which was intended in the 2012 final rules.’ It is still the case that essentially only houses of worship are exempted.”
The second change is for non-profit, religiously affiliated institutions like Baptist hospitals or Catholic schools. Now, rather than the rule forcing employers cover their workers’ abortifacients at the expense (supposedly) of the insurance company, it would actually have the insurance companies pretend to provide “separate individual health insurance policies, without cost sharing or additional premiums.” Sounds good, right? That way, the religious employer is off the hook, right?
Well, no. The employer will still be required to contract in general for their employees’ health insurance plans, and the insurer will still have to cover the objectionable drugs, without cost to the employee herself. And somebody must pay for those drugs, but the insurance company can’t print money on its own. The money that doesn’t come from the employee thus necessarily comes from either the employer or the government. So what’s the difference?
Well... In this case, says HHS, there’s really no more outlay of money at all. Instead of the insurance company paying for the drugs, nobody will pay.
How is that? Well, under one scenario, “issuers generally would find that providing such contraceptive coverage is cost neutral because they would be ... experience lower costs from improvements in women’s health and fewer childbirths.”
Oh, really? Just try following the government’s logic. According to HHS, abortion-inducing drugs and other contraceptives must be covered because they are just so darn expensive that women can’t possibly be expected to pay for them out of their own pockets. Yet now the HHS says the costs are so negligible that the insurance coverage essentially costs nothing - or that the savings from fewer pregnancies are at least as great as the cost of contraceptives. This is the logic of the old Fram oil filter commercial: You can pay for it now, or pay for it later.
But if that’s the case for the insurance company, shouldn’t it be the case for the women, too? If paying for contraception saves money rather than costs, then how is it a burden to ask women to pay for it themselves?
Additionally, HHS provides a fall-back scenario if it turns out there are costs: “The costs of both the health insurance issuer and third party administrator would be offset by adjustments in Federally-facilitated Exchange user fees that insurers pay.” Hmmmm.... So, if the ordinary fees paid to the government are reduced, then the government itself will effectively be subsidizing the drugs. How, pray tell, does that not run afoul of President Barack Obama’s own executive order “to ensure that Federal funds are not used for abortion services.... [and] extend those restrictions to the newly created health insurance exchanges”?
Finally, of course, religiously motivated private businesses - such as Hobby Lobby -- cannot escape this mandate no matter what. Their religious liberty apparently still means nothing to HHS. As noted in numerous earlier columns, this really is a battle over essential religious liberty. The newly “accommodated” rule still tramples that liberty under government’s boot.
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About the Contributor
Quin Hillyer is a Senior Fellow for The Center for Individual Freedom, a Senior Editor for the American Spectator magazine, and a Writer-in-Residence at the University of Mobile. He has won mainstream awards for journalistic excellence at the local, state, regional and national levels. He has been published professionally in well over 50 publications, including the Wall Street Journal, the Washington Post, the Houston Chronicle, the San Francisco Chronicle, Investors Business Daily, National Review, the Weekly Standard, Human Events, and The New Republic Online. He is a former editorial writer and columnist for the Washington Times, the Washington Examiner, the Mobile Register, and the Arkansas Democrat-Gazette, and a former Managing Editor of Gambit Weekly in New Orleans. He has appeared dozens of times as a television analyst in Washington DC, Alabama, Arkansas, and Louisiana, and as a guest many hundreds of times on national and local radio shows.