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White House Consulting Faith Groups About Additional Contraception Accommodation
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Administration officials have said they are working quickly to craft an additional regulation to implement President Obama's promised "accommodation" for non-church religious organizations that object to the contraceptives mandate.  The White House has been inviting in for discussion a series of faith-based organizations and leaders, among them the Institutional Religious Freedom Alliance.  Officials say they are working hard to develop a genuine solution for non-exempt religious employers that reject having to include contraceptives, including abortion-inducing drugs, in their health plans.  Yet there is no sign that the administration is willing to abandon its flawed framework.

Recall:  the regulation finalized on February 10 exempted only churches--religious organizations that serve and hire primarily people of their own faith and whose purpose is the "inculcation of religious values," not the provision of health care, or education, or shelter, or adoption services, etc.  Even pregnancy resource centers, which are dedicated to counseling and assisting women so that they choose life rather than abortion, are required, if they decide to provide health insurance to their employees, to buy insurance that pays for contraceptives that can induce abortions!  

The administration on February 10 said it would craft an additional regulation that would make it possible for objecting "religiously affiliated" organizations to buy insurance that doesn't cover the contraceptives--and that instead would obligate the insurance companies involved to provide, without cost to the employees or to the religious organizations, all of the mandated contraceptives.  The new regulation is supposed to resolve the conscience issue also for organizations that self-insure.  

Many faith-based service organizations, religious leaders, and church-state experts remain extremely concerned about the administration's stance.  They point out that, notwithstanding the President's promise, the insurance companies will have to pay for any contraceptives that employees choose to use and, since the insurers are forbidden to charge co-pays, they will have to roll those costs into the premiums paid by the objecting religious organizations.  In any case, it is because the religious organizations object to including contraceptives or abortifacients in their health insurance plans that their insurers will be required to contact their employees to offer them, for free, exactly those drugs and procedures!  

Of even broader concern is the very framework the administration has adopted:  designating two classes of religious organization--those that are religious enough to be shielded from the mandate itself, and the other ones, those that serve the public and provide help that is not narrowly religious and who get only the concealment of the mandate.  And yet faith-based service organizations--rescue missions, overseas development groups, adoption agencies, health clinics, community development organizations, schools and colleges, and all the many others--are just as much religious organizations as are houses of worship, religious orders, and seminaries.  Consider, for example, the Christian conviction:  we are under two great commandments--to love God fully and to love our neighbors as ourselves (Matt. 22:37-39).  One is not lesser than the other, such that organizations dedicated to love of neighbor may be given only a lesser degree of protection for their religious identities and faith-based standards.  This two-part scheme, although present in some state laws, establishes a new and abusive precedent in federal law and seriously undermines religious freedom.

IRFA President Stanley Carlson-Thies, accompanied by Pamela Palumbo, who heads the Pregnancy Clinic network in Bowie, Severna Park, and Annapolis (all in Maryland), spoke last week with the administration about the mandate and the promised additional regulation.  I stressed that grave concern about the mandate and exemption extends far beyond the Catholic bishops and centers on the religious freedom concerns (notwithstanding the biased press reports)--in particular, there is great opposition to the creation of two classes of religious organizations.  The administration claims that the original exemption cannot be changed, only supplemented.  And yet, I pointed out, the Obama administration had no qualms or difficulty in rescinding the Bush administration conscience regulation because it wanted to weaken its protections.

Mrs. Palumbo stressed that pregnancy clinics across the United States (also called pregnancy resource centers) counsel women about sexual integrity, helping them to consider healthy life choices, instead of dishing out birth control information and pills.  How then can it be right for the government to require insurance that they provide to their employees to cover contraceptives and abortifacients?  To the White House rejoinder that everyone opposed to abortion should welcome free and easy access to birth control, she pointed out the experience and statistics of her own clinics and their clients.  In three decades of service, despite how easily available contraceptives already are, the percentage of their clients who use birth control has not gone up at all.  When asked, the women don't explain their pregnancies as being due to a lack of access to birth control or an inability to pay for contraceptives.

Actually curbing unwanted pregnancies--and reversing the epidemic of STDs--clearly will take something more, something other than, making contraceptives even more easily available than now by mandating their access via employer insurance (this isn't to imply that the use of contraceptives is unimportant to many women and families).  Counseling and mentoring--not just pills and fact sheets--must be a foundational part of the solution.  But if so, then the government should do everything it can to ensure that value-promoting organizations such as faith-based pregnancy centers and other religious neighborhood organizations can flourish.  For that, it must protect, not encroach upon, their religious identity, integrity, and way of serving.

Time for a religious freedom reset.  This long, messy, and vitally important fight over religious freedom (not over the legality or accessibility of birth control!) underlines the inadequacy of the current government strategy to honor the First Amendment's religious freedom clauses.  And as our society becomes more religiously diverse, the need for a new approach becomes ever more pressing.   

The current approach is for the government first to decide that some aim is so worthy that it should be enforced by a sweeping universal rule, and only second to turn some attention to working--with enthusiasm or, as here, reluctantly--to arrange some exemptions or other accommodations that can be made without too much bother.  And yet exceptions can rarely fully protect people and organizations whose convictions lead them to an alternative way to live and serve.  For example, despite all the shouting and backtracking and court cases and legislative efforts in the contraceptives mandate fight, no clear resolution is in sight for public-serving faith-based organizations, and very few of those in power have even considered exempting from the mandate the owner of a small business--it could be a religious bookstore or retreat center or child-care center--who has a deep religious objection to underwriting abortion-inducing drugs.

In a new strategy, the government should do this:  first determine whether the imposition of a proposed sweeping rule will significantly encroach upon the religious exercise of citizens and organizations.  If it will, then foreswear the universal rule unless failing to impose it will cause significant and great actual harm that can be mitigated no other way.  Find some other way to achieve the great good--some way that reflects what government, after all, exists to achieve:  to help the (diverse) citizens and their (diverse) organizations to flourish, not to regiment them into a single mold.

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You don't have to be anti-gay or an alarmist to be . . . alarmed.  An early March "Minding the Campus" blog post by John Rosenberg says that "Pressure has been building for President Obama to sign an executive order prohibiting discrimination based on sexual orientation, gender identity, or gender expression by federal contractors . . . ."  Rosenberg notes a strategy session by the ACLU and gay activists in outgoing Rep. Barney Franks' office, op-eds and editorials in major newspapers, and a call for action from the Williams Institute at the UCLA law school.  

There's no reason to think an ENDA Executive Order would remain confined to federal contractors--companies and nonprofits that provide goods and services to the federal government.  Activists will have no reason not to press for the rules to be applied also to all grantees who get federal funds--nonprofit organizations, faith-based and secular--who receive federal dollars from federal agencies or through state and local governments to provide services to needy people.  And why stop with organizations that get government dollars?  The various ENDA bills--Employment Non-Discrimination Acts--that Congress has declined to pass for two decades would apply a sexual-orientation and gender identity non-discrimination requirement to private employers just because they employ people--no need to receive government dollars to be subject to the rule.

As Rosenberg says, an ENDA Executive Order would cause a huge religious freedom battle.  That's not because faith-based organizations are anti-gay, though some no doubt are.  Rather, it is because many faith-based organizations, desiring that their work communities live in accordance with the religious principles that inspire the respective organizations, maintain a code of conduct that restricts sexual activity to man-woman marriage.  An ENDA that adequately protects the freedom of religious organizations to maintain such a code of conduct is not so easily designed.  And many of the activists pressing for ENDA laws and Executive Orders aren't very interested in protecting religious freedom anyway.

There's another reason to worry.  The more the federal government takes action that can be construed as being pro-gay, the more fodder there is for lawyers, administrators, and judges to claim that there now is a compelling governmental interest that overbalances religious freedom claims.  Activists will make that argument even though the Constitution explicitly protects religious freedom and only by extension gay rights, and even though the ENDA bills that have advanced in Congress all have had some provision to protect the ability of faith-based organizations to stick to their religion-based employment standards.  

Even before any consideration of an ENDA Executive Order, the administration has taken various actions that might be used to make the argument that gay rights are so important as to overshadow religious freedom.  The most important was the statement of the President and the Attorney General a year ago that the Defense of Marriage Act is discriminatory and unconstitutional because it bans federal recognition of same-sex marriages, and declare that the federal government will not defend DOMA in court.

The remedy isn't to deny the full protection of the law to every citizen, whatever their sexual orientation or gender identity.  Rather, the point is, while doing so, to avoid suppressing the legitimate religious freedom of individuals and institutions.

See also:

Steven Aden and Stanley Carlson-Thies, "Catch or Release?  The Employment Non-Discrimination Act's Exemption for Religious Organizations," Engage, 11:2 (Sept. 2010).

Gregory Baylor and Timothy Tracey, "Nondiscrimination Rules and Religious Associational Freedom," Engage, 8:3 (June 2007).

Is Politico Right:  Federal Faith-Based Fade-Away?
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Pharmacists' Conscience Rights Vindicated in Washington Federal Court
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In 2007, the Washington Board of Pharmacy adopted a regulation forbidding pharmacies from referring patients to other pharmacies due to conscience concerns.  But the Board allows such referrals for many other reasons, though, such as convenience or economic factors.  The Washington court said this unequal treatment was clearly wrong.  The Board claimed its rules were neutral and applied across board, so an accommodation for religion or conscience was not necessary.  The court didn't buy it, at all.  Instead, the court said, the Board's rules "were designed . . . to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted."

Worth Reading
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Worth Hearing
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