The Obama administration's latest revision of its contraceptive policy was welcomed by some religious people as a breakthrough, even a "miracle." Upon reflection, it seems less like the parting of the Red Sea than a parlor trick.
At issue is whether Obamacare's broad mandate of insurance coverage for contraceptives, sterilization and abortifacients should apply to institutions with moral objections. For more than a year, the administration has struggled to clarify a set of regulations, while provoking 44 legal challenges.
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To the administration's credit, it has now abandoned one particularly provocative definition of religious institutions that excluded organizations that employ and serve nonmembers. In fact, many religious institutions serve nonmembers precisely because their faith requires generosity to outsiders.
But the outlines of the mandate remain essentially the same, offering different levels of religious liberty to churches and ministries. An exemption from the mandate still doesn't reach much beyond the doors of a house of worship -- covering only churches, associations of churches and religious orders.
The accommodation for religious charities, colleges and hospitals is effectively unchanged from the last version. While these institutions aren't required to pay directly for contraceptive coverage, they are forced to provide insurance that includes such coverage. It is a shell game useful only for those who want to deceive themselves. "The religious institutions are required by the government to give their workers an insurer," says Yuval Levin of the Ethics and Public Policy Center, "and that insurer is required by the government to give those workers abortive and contraceptive coverage, but somehow these religious employers are supposed to imagine that they're not giving their workers access to abortive and contraceptive coverage."
The administration has still made no attempt to deal with the hard cases. Is it right to impose the mandate on a for-profit religious publisher? On a nonreligious pro-life organization or a Catholic television station? On a family-owned business with a highly religious owner?
Religious liberty protections are broader for religious institutions than they are for businesses, consistent with the First Amendment and the Civil Rights Act of 1964. But under the Religious Freedom Restoration Act, religious rights are held by individuals, not only by nonprofit religious institutions. This law requires government to use the "least restrictive means" to pursue compelling interests at odds with religious belief. Balancing these considerations can be difficult, particularly in a business setting, but the administration isn't even attempting it.
It is a valid public health goal to promote the broad availability of contraception. But is a nearly universal mandate, imposed under threat of heavy fines, really the least restrictive method to achieve this objective? The administration has chosen to promote contraceptive access in the most heavy-handed way possible, then define the tightest exemptions it can get away with.
Now it is establishing a pattern of announcing revisions that include few substantive concessions. This strategy is clearly motivated by the courts, which have pressed for clarification on implementation of the mandate. Recent changes seem narrowly tailored to better withstand judicial scrutiny -- without shifting the policy itself. Cosmetic concessions also have the benefit of dividing opposition to the mandate, providing cover for those in search of fig leaves.
But President Obama's policy does not strike me as cynical. Disturbing, but not cynical. The administration has never shown a particularly high regard for institutional religious liberty. Obama's Justice Department, in last year's Hosanna-Tabor case, argued that there should be no "ministerial exception" at all -- a contention the Supreme Court labeled "amazing." In this case, the administration views access to contraception as an individual right to be guaranteed by the government, and institutional religious rights as an obstacle and inconvenience. But the First Amendment, it is worth remembering, was designed as an obstacle and inconvenience to the government.
All this is evidence of a deeper debate. Liberalism, back to John Locke, has understood religion to be a fundamentally private matter. It has a difficult time understanding the existence of loyalties outside the law, and often views them as dangerous (unless the demands of faith are harmless and picturesque, like the Amish). But this is not the way many religious people understand religion. They view it as the grounding for a vision of justice, and the source of standards for a community of believers.
It has been part of the American miracle to balance individual rights with institutional religious freedom -- a difficult task for which the Obama administration shows little appetite. So now it falls to the courts.
Michael Gerson's email address is email@example.com.
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