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Michael Gerson: A mandate as shell game

BY MICHAEL GERSON Published: February 6, 2013

The Obama administration's latest revision of its contraceptive policy was welcomed by some religious people as a breakthrough, even a “miracle.” Upon reflection, it seems less like the parting of the Red Sea than a parlor trick.

At issue is whether Obamacare's broad mandate of insurance coverage for contraceptives, sterilization and abortifacients should apply to institutions with moral objections. For more than a year, the administration has struggled to clarify a set of regulations, while provoking 44 legal challenges.

To the administration's credit, it has now abandoned one particularly provocative definition of religious institutions that excluded organizations that employ and serve nonmembers. In fact, many religious institutions serve nonmembers precisely because their faith requires generosity to outsiders.

But the outlines of the mandate remain essentially the same, offering different levels of religious liberty to churches and ministries. An exemption from the mandate still doesn't reach much beyond the doors of a house of worship.

The accommodation for religious charities, colleges and hospitals is effectively unchanged from the last version. While these institutions aren't required to pay directly for contraceptive coverage, they are forced to provide insurance that includes such coverage. It is a shell game useful only for those who want to deceive themselves.

The administration has still made no attempt to deal with the hard cases. Is it right to impose the mandate on a for-profit religious publisher? On a nonreligious anti-abortion organization or a Catholic television station? On a family owned business with a highly religious owner?

Religious liberty protections are broader for religious institutions than they are for businesses, consistent with the First Amendment and the Civil Rights Act of 1964. But under the Religious Freedom Restoration Act, religious rights are held by individuals, not only by nonprofit religious institutions. This law requires government to use the “least restrictive means” to pursue compelling interests at odds with religious belief. Balancing these considerations can be difficult, particularly in a business setting, but the administration isn't even attempting it.

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