1. The rule that created the uproar has not changed at all, but was finalized as is. Friday evening, after a day of touting meaningful changes in the mandate, HHS issued a regulation finalizing the rule first issued in August 2011, “without change.” So religious employers dedicated to serving people of other faiths are still not exempt as “religious employers.” Indeed, the rule describes them as “non-exempt.”
2. The rule leaves open the possibility that even exempt “religious employers” will be forced to cover sterilization. In its August 2011 comments, USCCB warned that the narrow “religious employer” exemption appeared to provide no relief from the sterilization mandate—only the contraception mandate—and specifically sought clarification. (We also noted that a sterilization mandate exists in only one state, Vermont.) HHS provided no clarification, so the risk remains under the unchanged final rule.
3. The new “accommodation” is not a current rule, but a promise that comes due beyond the point of public accountability. Also on Friday evening, HHS issued regulations describing the intention to develop more regulations that would apply the same mandate differently to “non-exempt, non-profit religious organizations”—the charities, schools, and hospitals that are still left out of the “religious employer” exemption. These policies will be developed over a one-year delay in enforcement, so if they turn out badly, their impact will not be felt until August 2013, well after the election.
4. Even if the promises of “accommodation” are fulfilled entirely, religious charities, schools, and hospitals will still be forced to violate their beliefs. If an employee of these second-class-citizen religious institutions wants coverage of contraception or sterilization, the objecting employer is still forced to pay for it as a part of the employer’s insurance plan. There can be no additional cost to that employee, and the coverage is not a separate policy. By process of elimination, the funds to pay for that coverage must come from the premiums of the employer and fellow employees, even those who object in conscience.
5. The “accommodation” does not even purport to help objecting insurers, for-profit religious employers, secular employers, or individuals. In its August 2011 comments, and many times since, USCCB identified all the stakeholders in the process whose religious freedom is threatened—all employers, insurers, and individuals, not just religious employers. Friday’s actions emphasize that all insurers, including self-insurers, must provide the coverage to any employee who wants it. In turn, all individuals who pay premiums have no escape from subsidizing that coverage. And only employers that are both non-profit and religious may qualify for the “accommodation.”
6. Beware of claims, especially by partisans, that the bishops are partisan. The bishops and their staff read regulations before evaluating them. The bishops did not pick this fight in an election year—others did. Bishops form their positions based on principles—here, religious liberty for all, and the life and dignity of every human person—not polls, personalities, or political parties. Bishops are duty bound to proclaim these principles, in and out of season.
Here are USCCB's first "six things" on the HHS mandate.