The Obama Administration is seeking to defend the HHS Mandate by claiming that the federal government is doing nothing more than what the states are already doing. HHS Secretary Sebelius argued in USA Today:
The 28 states, according to NARAL
In choosing this exemption, we looked first at state laws already in place across the country. Of the 28 states that currently require contraception to be covered by insurance, eight have no religious exemption at all.The religious exemption in the administration’s rule is the same as the exemption in Oregon, New York and California.
The Administration’s allies have been trotting out the same argument. For example, Michelle Goldberg at Daily Beast condescendingly dismisses Catholics’ “enraged response” to the HHS mandate as “displaced,” by arguing that:
From all the hysteria over the administration’s insistence that Catholic institutions provide insurance that covers birth control, you’d think it was a big change—but 28 states already have such laws on the books.
Is that true? No, not really, according to the USSCB’s Sister Mary Ann Walsh:
The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief.
|Osmar Schindler, David and Goliath (1888)|
I haven’t investigated this myself, but that sounds right. If so, it’s a huge difference. A conscience-violating plan that forces Catholic institutions to self-insure or opt for ERISA is one thing; a conscience-violating plan that leaves no relief (other than dropping insurance completely, or ending social services completely) is quite another. It’s also worth mentioning that the Catholic Church fought these state plans in court, too.
So the Administration can pretend it’s going no further than the states have gone, but that’s just not true. Of course, it’s also worth seeing this as a pattern. According to Sebelius, the government actually looked to what the states got away with, in crafting their own policy. That is, the battles which may have seemed insignificant (whether New York could or couldn’t require Catholic employers to provide contraceptive coverage) weren’t, since they paved the way to this point. And even now, we’re not at the limits to what the Administration wants to do. If it succeeds here, that’ll be used as a precedent for more and more religious encroachments in the future.
My prayer is that this marks a turning point: that we succeed in beating the federal mandate, and use that momentum to attack the states’ contraceptive mandates. Ideally, I’d like to see a nation which doesn’t force anyone (whether a religious institution, or simply a conscientious employer) to purchase contraception, abortion, and sterilization. Is that too much to ask?