The HHS Mandate Rolled Back
As Han Solo told Luke, “That’s great, kid! Don’t get cocky.” Next on BreakPoint, a call for both thanks and renewed effort by defenders of religious freedom. Back in May, the president signed an executive order instructing government agencies to ‘consider amending existing regulations’ to address the problems with the HHS mandate. It was a solid first step toward protecting religious freedom, and many of us hoped that the promised second step would be soon forthcoming. And yet, at the same time I offered a reminder then that if we had even “gotten the executive order many of us hoped for, it still would have been, at best a temporary help.” On Friday, a definitively more substantial step was taken by the administration to protect the rights of conscience. And once again, I’m grateful. And yet again, I offer a reminder that at most, this is a temporary reprieve, not a victory. The step taken Friday by the administration addresses the most egregious parts of the HHS mandate: its indifference to religious freedom and freedom of conscience. While the mandate excluded churches, it forced religious institutions such as colleges, hospitals, even religious orders to violate their conscience by providing and subsidizing abortion-inducing medication and contraception. The Obama administration took the nonsensical position that essentially only churches were religious employers. On Friday, the DOJ announced what’s known as the “interim final rule,” which keeps the mandate in place for the vast majority of employers’ employees, but dramatically expands the Obama administration’s narrow categories for religious exemption. Friday’s rule creates what the Beckett Fund called a “targeted, commonsense protection” for religious nonprofits and employers with religious and/or moral objections to contraception. And it ends the nonsensical state of affairs where religious colleges, Catholic nuns, and other religious non-profits are not considered religious employers. And speaking of nonsensical, the response to this announcement was, to put it mildly, melodramatic. The New York Times, CNN and others breathlessly declared this a blow for women’s rights. A newspaper in Erie, Pennsylvania declared that “Dropping birth control coverage puts women’s health at stake.” In reality, the number of women potentially affected by this change is the tiniest fraction of those otherwise covered by the mandate. And, as the Obama administration admitted before the Supreme Court, “there are many other ways for women to receive [contraceptive] services.” Adding to the nonsense, the ACLU quickly announced that it would challenged the interim final rule in court, as did California. While they’re unlikely to prevail, it’s a reminder that we still have our work cut out for us. For starters, this final interim rule doesn’t end litigation like the Little Sisters’ challenge. They still haven’t obtained a final relief from the courts. Until then, they can’t be sure where they stand legally. And this policy, just like the original mandate, can be changed depending on who’s in the White House. Only a legislative solution, not an administrative decision, can permanently protect religious freedom when it comes to healthcare law. But an even more important change is needed, and that’s in the culture. Most often, as we like to say around here, politics is downstream from culture. Ultimately, no law or regulation can secure religious freedom if the cultural imagination is lost. And sadly, in this case it is. Many Americans, especially on the left, think that religious freedom is just bigotry or is trying to impose faith on others. That’s untrue and unfair, but it’s still what they believe. As long as so many of our neighbors are ignorant about what the free exercise of religion means, our job has to be to help them understand. As I said back in May, “This is where the battle for religious freedom will be fought, either won or lost, no matter who sits in the Oval Office.” It’s as true today as it was then, despite this very good news.