Facing increasing losses in federal courts over Obamacare's contraceptive mandate, the Department of Health & Human Services last week promulgated a rule to expand exemptions for religious nonprofits. That sounds good, but what the government is actually doing is a sort of accounting shell game: employers will no longer have to pay for the products/services to which they objects, but the government requires them to contract with an insurance company that the government then requires to provide these products/services to employees who want them "for free."
As Yuval Levin put it, "If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t." Matt Bowman, an attorney litigating some of these cases, makes some amusing analogies to illustrate the point:
Suppose the government decides that college students need access to pornography for their sexual health. It forces all colleges to give their students a free subscription to the Playboy Channel. Christian colleges object. So the government says it will merely force those colleges to give their students a subscription to cable television, and then it will force that cable company to give those students a free subscription to the Playboy Channel. Why would the Christian colleges be content with this arrangement?
Imagine that the government wishes to empower Second Amendment rights. It pairs employers with local families struggling with mental illness and requires the employers to provide the families with free handguns. Religious groups object. So the government forces the religious groups to give people with mental illness a membership at a shooting range, and then forces the shooting ranges to provide those people with free handguns as a benefit of membership.
Perhaps the government decides that Americans need to just calm down, especially religious fanatics. It forces employers to supplement the water supply in their buildings with sedatives. Religious groups object. So the government forces the religious groups to maintain an account with the water company, and then forces the water company to put sedatives in the religious groups’ water supply.
The new accounting gimmick contraceptive-mandate exemption simply betrays contempt for anyone, religious or otherwise, who doesn't want to pay for birth control pills. (I should note that I have no moral objection to contraceptives or the other pills at issue in this mandate; it's the mandate itself that's a problem.) And remember that there's no question that proposed exemption doesn't help objecting for-profit businesses, such as Hobby Lobby, one wit. And that's a shame.
If we’re to respect diverse religious beliefs, then why does the motivation for a particular belief have bearing on whether the government gets to trample them? Religious businessmen donate plenty to charity out of the profits they make, possibly having greater impact on human welfare than many of the nonprofits that are (or will be) exempt. Even if they didn’t, however, this country was founded on ideals of religious liberty that are enshrined in the First Amendment, so why would we just ignore them?
Indeed, when one of these lawsuits finally reaches the Supreme Court, the plaintiffs should win without even getting to the constitutional claims. That’s because the Religious Freedom Restoration Act prohibits the government from placing a “substantial burden” on the exercise of religion unless it has a “compelling interest” and uses the “least restrictive means” to achieve it. As Levin concludes,
[T]here are many alternative means by which the government can (and does) make abortive and contraceptive drugs and procedures available to people. The purpose of refusing to provide a religious exemption from this rule would therefore appear to be to force religious employers themselves to make those drugs and procedures available—to bend a moral minority to the will of the state. It is not only a failure of statesmanship and prudence, it is a failure of even the most minimal toleration.
Americans understand that the essence of religious freedom is that government can’t force people to do things that violate their religious beliefs. Some may argue that there’s a conflict here between religious freedom and women’s rights, but that’s a “false choice”---as President Obama himself like to call such things. If the HHS rule is repealed, women will still be perfectly free to obtain contraceptives, abortions, and whatever else isn’t against the law. They just won’t be able to force others to pay for them. But there are larger issues here. As I wrote in an essay last month:
This is just the latest example of the difficulties in turning health care---or increasing parts of our economy more broadly---over to the government. As my colleague Roger Pilon has written, when health care (or anything) is socialized or treated as a public utility, we’re forced to fight for every “carve-out” of liberty. Those progressive Catholics who supported Obamacare, or the pro-life Democrats who voted for it, who are now appalled by certain HHS rules should have thought of that before they used the government to make us our brother’s keeper. The more government controls---whether health care, education, or even marriage---the greater the battles over conflicting values. With certain things, such as national defense, basic infrastructure, clean air and water and other “public goods,” we largely agree, at least inside reasonable margins. But we have vast disagreements about social programs, economic regulation, and so much else that government now dominates at the expense of individual liberty. Those supporting Wheaton and Belmont Abbey Colleges and Hobby Lobby are rightly concerned that people are being forced to do what their religious beliefs prohibit. But that all comes with the collectivized territory.