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February 11, 2012

Nothing but Squid Ink: Rules Unchanged on Anti-Conscience Mandate

By and

Proponents of Obamacare’s anti-conscience mandate on preventive care kept telling critics to wait and see what the final rules held. As of Friday afternoon, we now know. It wasn’t worth the wait.

If there was a question Friday morning whether the Obama administration might cede ground, there was no doubt at the end of the day. They haven’t budged.

Despite what President Obama said at his White House press conference, the actual regulations make permanent the “interim final regulations” issued Aug. 3, 2011---the ones that sparked the furor in the first place.

Prefaced by 17 pages of the kind of rhetorical squid ink that President Obama defensively deployed at his press conference, the words that have the force of law appear on pages 18-20. That’s where the actual amendments to the Code of Federal Regulations are made by three departments—Treasury, Labor and Health and Human Services–that Congress previously granted joint oversight of employer health plans.

The bottom line is this: “Accordingly, the amendment to the interim final rule with comment period amending 45 CFR 147.130(a)(1)(iv) which was published in the Federal Register at 76 FR 46621-46626 on August 3, 2011, is adopted as a final rule without change.” [Emphasis added.]

Translation: The Obama administration Friday afternoon put into federal law the very regulation that drew objections from almost 200 Catholic bishops, some 50 religiously affiliated colleges and universities, 65 North American bishops of Orthodox churches, numerous other Jewish, Evangelical and Lutheran leaders, and even some liberals– and without changing so much as a comma.

From this point forward, any changes to this regulation have to go through the formal regulatory process all over again.

The administration admits as much in the preamble to these regulations when it states that Treasury, Labor and HHS "plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employer’s plan participants (and their beneficiaries) who desire it, with no cost-sharing. Under this approach, the Departments will also require that, in this circumstance, there be no charge for the contraceptive coverage."

Thus, instead of delaying final regulations until they could be revised to reflect the prospective changes President Obama outlined Friday, the administration went ahead and locked into regulation its original position, accompanied by a (non-binding) promise to revisit the issue.

Furthermore, even assuming that the Administration followed through in good faith on this promise, it still leaves the technical problems identified yesterday in a Heritage Foundation blog post—how to handle employer's that "self-insure" and don't buy coverage from an insurer—that make the president's proposal unworkable.

Meanwhile, the administration simultaneously issued “Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans, and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing…” (yes, the title keeps on going for another two lines).

Bottom line on the guidance: The administration has said it won’t enforce the new law on religious employers until after Aug. 1, 2013. However

Let’s say you are one of those “certain employers”—e.g., the director of a Baptist food bank, headmaster of a Jewish school, or operator of a crisis pregnancy center—and you wish to take advantage of this “grace period.” The guidance says that you not only have to certify to HHS that you are eligible, but you also have to include the following notice of contraceptive coverage in the information you distribute to your employees at their next health plan enrollment:

NOTICE TO PLAN PARTICIPANTS

The organization that sponsors your group health plan has certified that it qualifies for a temporary enforcement safe harbor with respect to the Federal requirement to cover contraceptive services without cost sharing. During this one-year period, coverage under your group health plan will not include coverage of contraceptive services.

Meaning what? It means that religious institutions such as Colorado Christian University, Belmont Abbey College and EWTN—all three of which are represented by the Becket Fund for Religious Liberty in lawsuits against the federal government over the anti-conscience mandate—must send this notice to their employees simply to be allowed the one-year reprieve.

The strong implication is that such religious employers will get that and no more.

As for all the rest of what we heard in the Obama administration’s media blitz to fend off criticism, these final rules do not back it up.

The rest of the content in these documents—about working over the next year to modify this regulation and accommodate objections—are just so many words. Words that have no force of law, and are simply promises and obfuscating squid ink.

Ed Haislmaier is senior research fellow in health policy studies and Jennifer A. Marshall is director of domestic policy studies at The Heritage Foundation.

First appeared in National Review Online

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