Particularly Your Liberties
First time ever: American Administration Dictates Private Companies Must GIVE AWAY a Product
An 'accommodation' that makes the birth-control mandate worse.
WSJ Opinion, February 11, 2012
Here's a conundrum: The White House wants to impose its birth-control ideology on all Americans, including those for whom sponsoring or subsidizing such services violates their moral conscience. The White House also wants to avoid a political backlash from this blow to religious freedom. These goals are irreconcilable.
So you almost have to admire the absurdity of the new plan President Obama floated yesterday: The government will now write a rule that says the best things in life are "free," including contraception. Thus a political mandate will be compounded by an uneconomic one—in other words, behold the soul of ObamaCare.
Under the original Health and Human Services regulation, all religious institutions except for houses of worship would be required to cover birth control, including hospitals, schools and charities. Under the new rule, which the White House stresses is "an accommodation" and not a compromise, nonprofit religious organizations won't have to directly cover birth control and can opt out. But the insurers they hire to cover their employees can't opt out. If that sounds like a distinction without a difference, odds are you're a rational person.
Say Notre Dame decides that its health plan won't cover birth control on moral grounds. A faculty member wants such coverage, so Notre Dame's insurer will then be required to offer the benefit as an add-on rider anyway, at no out-of-pocket cost to her, or to any other worker or in higher premiums for the larger group.
But wait. Supposedly the original rule was necessary to ensure "access" to contraceptives, which can cost up to $600 a year as Democratic Senators Jeanne Shaheen, Barbara Boxer and Patty Murray wrote in these pages this week. The true number is far less, but where does that $600 or whatever come from, if not from Notre Dame and not the professor?
Insurance companies won't be making donations. Drug makers will still charge for the pill. Doctors will still bill for reproductive treatment. The reality, as with all mandated benefits, is that these costs will be borne eventually via higher premiums. The balloon may be squeezed differently over time, and insurers may amortize the cost differently over time, but eventually prices will find an equilibrium. Notre Dame will still pay for birth control, even if it is nominally carried by a third-party corporation.
This cut-out may appease a few of the Administration's critics, especially on the Catholic left—but only if they want to be deceived again, having lobbied for the Affordable Care Act that created the problem in the first place. The faithful for whom birth control is a matter of religious conviction haven't been accommodated at all. They'll merely have to keep two sets of accounting books.
The real audience for this non-compromise are the many voters shaken that the White House would so willfully erode the American traditions of religious liberty and pluralism, most of whom don't adhere to anti-contraceptive teachings. On a conference call with reporters yesterday, a senior Administration official not known for his policy chops claimed that the new plan was "our intention all along" and that the furor is nothing more than partisan opportunism. Hmmm.
We couldn't recall any spirit of conciliation when the birth-control mandate was finalized in January, so we went back and checked the transcript of that call with senior Administration officials. Sure enough, back then they said that the rule "reflects careful consideration of the rights of religious organizations" and that a one-year grace period "really just gives those organizations some additional time to sort out how they will be adjusting their plans."
A journalist asked, "Just to be clear, so it's giving them a year to comply rather than giving them a year to in any way change how they feel or the Administration to change how it feels." Another senior official: "That is correct. It gives them a year to comply."
Yesterday's new adventure in damage control and bureaucratic improvisation makes the compliance problem much worse. There is simply no precedent for the government ordering private companies to offer a product for free, even if they recoup the costs indirectly. Why not do that with all health benefits and "bend the cost curve" to zero? The shape of the final rule when the details land in the Federal Register is anyone's guess, including the HHS gnomes who are throwing it together on the fly to meet a political deadline.
One major problem will be how the rule applies to large organizations that self-insure. Arrangements in which an employer pays for care directly and uses insurers to manage benefits and process claims (not to take on insurance risk) account for the majority of the private market. In these cases there isn't even a free lunch to pretend exists.
As reporting by Bloomberg and ABC this week has made clear, the contraception mandate was fiercely opposed within the Administration, including by Vice President Joe Biden. The larger tragedy is that none of them objected to government health care, which will always take choices away from individuals and arrogate them to an infallible higher power in Washington. Who was it again who claimed that if you like your health plan, you can keep your health plan?