Previously, the Obama administration had allowed for an exemption to the contraceptives mandate that was fairly narrow. Groups were exempted only if they met four criteria: 1) their purpose was the "inculcation of religious values," 2) most of the employees shared that religion, 3) most of the people being served shared that religion, and 4) they were a non-profit organization. This defined the sort of organization the law was considering as "religious."
This definition of "religious" is the fundamental issue in a slew of lawsuits about the health care policy.
One of the main objections to this working definition was the way it deemed religious service groups to be not religious. A Catholic soup kitchen is not mainly about the "inculcation of religious values," nor does it primarily serve Catholics.
With these proposed changes to the rules, released last week, the administration acknowledges that "religion" can mean many things, and doesn't just describe houses of worship. In the proposal for new rules, it says:
The Departments agree that the exemption should not exclude group health plans of religious entities that would qualify for the exemption but for the fact that, for example, they provide charitable social services to persons of different religious faiths or employ persons of different religious faiths when running a parochial school. Indeed, this was never the Departments’ intention.Therefore:
the Departments propose to amend the definition of religious employer ... by eliminating the first three prongs of the definition and clarifying the application of the fourth. Under this proposal, an employer that is organized and operates as a nonprofit entity and referred to in section 6033(a)(3)(A)(i) or (iii) of the Code would be considered a religious employer for purposes of the religious employer exemption.In practice, what this would mean is that any non-profit organization can fill out a form stating their religious objections and identifying themselves as religious, and they thus opt-out of the mandate. They can then provide health insurance for their employees that fits with the requirements of their religion and the rules of Obamacare; other arrangements will be made to provide contraceptives for those employees who want it, arrangements that won't involve the religious employer.
This is designed to resolve a good many of the lawsuits while not requiring employees to be disadvantaged by their employers beliefs. Whether it will or not is an open question, I suppose, but that's the purpose of the new rules, to strike a balance between accommodating religious belief and not allowing religious practices to be imposed on or negatively affect those who don't believe. The administration says:
The proposed accommodations would provide such plan participants and beneficiaries contraceptive coverage without cost sharing while insulating their employers or institutions of higher education from contracting, arranging, paying, or referring for such coverage.The way the balance is struck, here, is by broadening the legal definition of religious organization. Now, to be counted as religious organization, only two things are necessary: the group must considered itself to be and hold itself out to be religious, and there can't be any profit.
This means the lawsuits that have interested me most, which are about the religious rights of for-profit corporations, will go forward. This compromise specifically excludes them. Hobby Lobby, Inc., and other corporations with religious owners will still have to take their case to the courts to argue that corporations have religions and have the right to exercise them.
There have been a variety of responses to the proposed new rules. The U.S. Conference of Catholic Bishops declined to comment for the Associated Press, and said they're studying the proposal. Law firms involved in the cases defending for-profit corporations that have religious objections to insurance plans covering employee's contraceptives have said this is "picking and choosing who is allowed to exercise faith," and that the government should create an exemption for any "moral decision," disregarding anything else. Other responses have been crazier. At National Review, one writer interprets the compromise as a "double dose of authoritarianism" designed to force Catholic nuns to have birth control coverage.
Here's a thought provoking question, though. Matthew Schmitz of First Things asks:
The Obama administration believes that conscientious objections to contraception should prevail in the non-profit sector, but not in for-profit corporations. Why? Do employees of non-profits need contraception less? Do the conscience claims of their leaders matter more? Why are tax-exempt organizations granted more rights than those which pay taxes?To put it another way, why can't a corporation serve both God and Mammon? What is it about being for-profit that necessarily excludes an organization from being legally considered religious?