Advocates for religious freedom slammed the White House’s latest effort to expand federal control over the religious sector.
“This is a shell game… it is an accounting gimmick,” because progressives “are losing on this issue” politically, said Hannah Smith, senior counsel at the Becket Fund, a civil liberties law firm.
The Department of Health and Human Services released a 32-page notice late on Friday sketching several ways in which employees of religious groups that insure their own members would be provided free birth control services, in the face of opposition by those religious groups.
The new document, dubbed a notice of proposed rule-making, also escalates the controversy by pressuring the nation’s many colleges and universities to arrange free birth control services for their youthful students.
However, the document also highlighted the president’s underestimation of the political push-back caused by his Jan. 20 regulation of religious groups, said Smith.
For example, the notice says the government will invite two rounds of comments from the public, likely delaying enforcement of the most controversial parts of the regulation past November.
The notice “is a political last-gasp as they prepare for what inevitably is going to be a very ugly political fight over this because there’s no legitimate reason for them to do this other than to attack religious liberty,” said Brian Burch, president of Catholic Vote.
A broad coalition of roughly 15 conservative and religious groups has already formed to oppose the religious regulation, he said.
The regulation is part of a broader effort by Obama and allied progressives to attack America’s network of civil society organizations — such as churches, charities, companies, clubs or neighborhood doctors — who resist federal powers, he said.
The progressives’ goal is to “destroy the intermediary institutions… [until] nothing is left but the individual and the state, which make the state much more powerful and the individual much more dependent on the state,” he said.
For example, he said, the 2010 health care reform law is forcing the nation’s variety of neighborhood doctors to join large medical conglomerates that are easily regulated by the federal government, he said.
Conservatives and religious groups will push back using lawsuits, media campaigns and elections, Burch said.
“We have to keep fighting this on every front, because [progressives] will chip away at every opportunity,” said Smith.
The Friday notice’s low-key language and apparently conciliatory tone prompted several news outlets to downplay the church-state controversy.
Politico, for example, reported that “religiously affiliated employers — such as Catholic hospitals — will not have to cover contraception for their employees.”
The Washington Post headline declared that “Birth control rule won’t apply to all student plans at colleges, White House says.”
The notice’s conciliatory language included a suggestion — but not a regulatory commitment — that the administration will help more religious groups opt-out of the novel regulation.
“The [federal] Departments seek comment on which religious organizations should be eligible for the accommodation and whether, as some religious stakeholders have suggested, for-profit religious employers with such objections should be considered as well,” it said.
“They’re hiding behind proposed rules,” responded Burch. Officials are “pretending that they’re actually interested in the public’s opinion, just like they did last August when they [invited comments, but] didn’t change anything” when the regulation was announced Jan. 20, he said.
The controversy hit the front-pages Jan. 20 when President Barack Obama’s deputies announced federal regulations forcing religious communities to fund the use of free contraceptives by their employees.
The White House did not estimate how many women would be aided by the mandate, nor why the federal Title X contraceptive program would not be used to offer free contraceptives to women.
Some religious communities — especially the Catholic Church — strongly object to being required to provide the sex-related insurance services.
Many religious communities — evangelical, Baptist, Jewish, Lutheran and others — say the First Amendment’s protections deny the president the power to regulate religious groups’ practice of their own religion.
The Jan. 20 edict says that churches which pass a four-part government test can win a conditional exclusion from the mandate. But schools, hospitals, universities and charities run by religious communities must comply with the unwanted mandate, or pay expensive fines, according to the regulation.
On Feb. 10, President Barack Obama announced he will “accommodate” the religious objections next year, but did not change the text of the Jan. 20 regulation.
As part of an accommodation, he said, commercial health insurance companies would be required to fund the free services when religious employers objected.
However, Obama’s Feb. 10 edict did not explain how the insurance companies that are run by religious communities could be accommodated.
Friday’s notice suggests three possible routes to an accommodation for self-insuring religious employers.
For example, the federal government could pay other companies to provide the free services.
Alternatively, companies that provide back-office administrative services for church-run insurance companies could be required to step in when church-owned health insurance companies refuse to provide the services. Or those back-office companies could be paid via the complex health care reform law, which Obama cited when he imposed the novel mandate.
The notice also said that universities run by religious groups must provide the free birth control services to their students, unless the insurance is funded by extra student fees.
“In the same way that religious colleges and universities will not have to pay, arrange or refer for contraceptive coverage for their employees, they will not have to do so for their students who will get such coverage directly and separately from their insurer,” the notice said.
But the president’s focus on who pays obscures the political fact that his regulation forces religious groups to facilitate behavior they deem wrong, said Burch.
The president’s regulatory maneuvering is required, said Smith, because the administration “has screwed this up [politically] so much that they don’t know how to get out of it.”