On February 10, 2012, President Obama promised modifications to the mandate that he said would better protect the religious freedom and conscience rights of faith-based service organizations. However, the only actual regulation enacted so far only exempts from the mandate churches, not religious charities, universities, hospitals, etc. The administration has provided little detail on a promised new regulation to protect parachurch ministries, but its central feature has been termed by many a “fig leaf.” The mandate requires insurance plans with start dates of August 1, 2012, or later to include birth control, including abortion-inducing contraceptives and sterilization. As of now, the only actual protection parachurch ministries have from this requirement is a year-long “safe harbor” from federal enforcement of the mandate for a subset of organizations.

The February 10 Announcements.

Following growing protests about the administration’s intent to exempt only churches from the mandate, the President announced an accommodation for faith-based service organizations (parachurch ministries). The much-protested interim final rule that exempts only churches was made final. But the administration said that it would adopt a new regulation to accommodate parachurch ministries that have a moral objection to the mandate. The administration has given itself a year to propose the new regulation—allowing a delay until after the coming presidential contest. This promised additional religious accommodation is built on what many regard to be only an accounting gimmick, and it requires the creation of two distinct classes of religious organization with different levels of conscience protection. At best, the February 10 announcements leave vital details and concerns unaddressed.

Some Progress

First, after months of resistance, the administration conceded that it cannot limit its accommodation of religious concerns only to churches. In the interim rule, to be exempt a religious employer had to fall into an IRS church classification, be dedicated to “inculcating religious values,” hire mainly people of the same faith, and also serve mainly people of the same faith. Most, if not all, parachurch ministries—even some churches—do not fit into this narrow box, and so are deemed, in effect, not to be religious employers at all. Either they would have to bend to the mandate, whatever their convictions, or drop insurance coverage and (unless they are small organizations) pay a hefty per-employee annual penalty. Forced to accept that this exemption is too narrow, the administration has now promised an additional regulation “to address the religious objections of the non-exempted non-profit religious organizations.

Second,while this new regulation is being devised over the next year, the administration said it would not penalize non-exempt religious employers that refuse to pay for the contraceptives. This “temporary enforcement safe harbor” is available to non-profit religious organizations whose insurance plans, as of February 10, did not include contraceptives, on account of the religious beliefs of the organization. The religious employer has to ensure that its employees get notice that the insurance does not pay for contraceptives.

Essential Details Missing

But only the controversial interim final rule with its church-only exemption has been finalized. The additional accommodation for parachurch ministries is only a generalized promise. Will it actually be proposed? What will it actually say? Will the administration be responsive to criticism if the proposed regulation does not adequately protect parachurch ministries? Note that several times already the administration has declared that its various minimal religious freedom accommodations were sufficient. Given that only parachurch ministries that do not currently include contraceptives in their health insurance plans get the “safe harbor,” will parachurch organizations that neglected to drop contraceptives be forced to accept the mandate? Further, although the administration announced that it would find a way to accommodate the concerns of religious organizations that self-insure, it offered no details. And it did not even notice the concern of many religious higher education institutions that the mandate requires them to include contraceptives in their student health plans.

Two Classes of Religious Employers

The interim final rule that has now been finalized only exempts churches. So, by promising an additional regulation for parachurch organizations instead of simply expanding the original narrow definition, the administration is declaring the creation of two classes of religious employer. Second-class parachurch ministries will not be exempt from the mandate the way churches now are. Rather they will get a second-class religious accommodation—details not yet specified. Even if they have exactly the same moral objection to the contraceptive mandate that churches have, parachurch ministries are promised only a lesser degree of protection for their convictions—a form of protection that may be mostly just words.

A “Fig Leaf” Compromise.

President Obama’s February 10 compromise consists of the promise to displace from objecting parachurch employers to insurance companies the mandate to provide free contraceptives. This is the mechanism that is to be worked out in the promised new regulation. The insurance companies will have to offer contraceptive coverage without charge to the employees of the objecting ministries and without charge to the objecting ministries themselves. The administration claims that no one needs to pay for the birth control because research shows that the insurance companies will save more money than they spend on the contraceptive drugs and services by not having to pay for as many births, as much pre-natal care, as many birth complications that occur when pregnancies are unplanned, etc. Ruth Marcus, a Washington Post columnist, immediately labeled this a “fig-leaf,” albeit, in her view, a praiseworthy one. Can parachurch ministries that turn out to be eligible for this promised religious accommodation—not the actual exemption that churches now have—consider it more than a fig leaf? If not, their only recourse will be to stop paying for health insurance for their employees. But the only insurance their employees will be able to buy will include the full range of contraceptive drugs and services, including the abortion-inducing drugs. And if the parachurch ministry has 50 or more FTEs, then it will have to pay a $2,000 per employee/per year penalty for not offering health insurance.

Broader Protections Required.

The fight over the contraceptives mandate has been about the scope of the exemption for religious employers. Yet, even if the promised accommodation for parachurch ministries somehow turns out to be acceptable, many conscientious objectors will remain without any accommodation: objecting employers in religious or secular companies, objecting secular nonprofits, people who have to buy insurance on their own. Even with the best possible outcome to the administration’s actions and promises, parachurch ministries and churches will know that many of their congregants, volunteers, donors, and board members cannot escape the contraceptive mandate. That is why many religious freedom advocates are pressing for the elimination of the mandate itself or at least for the introduction of conscience protections much broader than protections only for religious organizations.

Our health care system depends extensively on faith-based health care institutions–clinics, hospitals, teaching programs, insurers–and also religious health care professionals–doctors, professors, researchers, nurses, pharmacists, other staff. The system would be severely degraded if those faith-based institutions were hampered or forced to quit because their religious freedom was inadequately protected. And the system will be undermined if the conscience rights of medical professionals are not fully honored. The fight over the contraceptive mandate should be a catalyst to a deep consideration whether the health insurance reform law adequately protects faith-based institutions and individuals in general.