The recent announcement by the Obama Administration that it has once again sought to accommodate the concerns of religious groups that are required to provide contraception under the Affordable Care Act is a testimony to its tin ear on matters of religious liberty. The root cause of the difficulty is that the Administration thinks that it should engage in a delicate balancing act to reconcile women's interest in contraceptive care and religious organizations' interest in their own autonomy.
Unfortunately, this entire balancing act is misconceived. Religious organizations are right to voice a firm but polite objection to the new rules. No one doubts that women are entitled to acquire and use contraceptive devices. But the correct correlative duty of that right is that the religious organizations cannot interfere with a woman's ability to acquire it from any third-party provider at her own expense. The religious organization should be under no duty to supply it to her, or to pay, directly or indirectly, for that coverage which is against their conscience. Just as the churches cannot impose their will on others, so others cannot impose their will on the churches.
The recent HHS proposal seems to recognize the force of this objection. But instead of just backing down and confessing error, the Administration attempts to finesse this situation by making it clear that the religious groups need not pay for the expense of supplying that coverage, which will ostensibly be absorbed by insurers. But what it does not explain is why health insurers cannot “impose any premium, fee or other charge” for the services that are costly to them to supply. The conceit in this case is that the extra costs will be made up in the reduced costs of childbirth (which assumes that they will materialize). And it does nothing to address the plight of religious organizations that choose to self-insure. Nor does it deal with the intense objection of ordinary businesspeople who have similar religious objections to the ACA command.
As Sarah Torre explains:
The latest proposal fails to protect businesses such as Tyndale House, the nation’s largest Bible publisher; or Hercules Industries, a family-owned and operated HVAC company; or Hobby Lobby, an arts and crafts retailer—all of which seek to operate according to deeply held religious and moral beliefs.
These fitful efforts--and the tendency toward selective inclusion and exclusion that they represent--will continue to dog the Obama Administration’s efforts because of the flaws in its underlying philosophy of rights. The government seems to think that it can define which organizations are entitled to associational liberties and which are not. This attitude first arose in connection with the employment discrimination laws that purported to explain to employers the grounds on which they could not turn down workers, thus initiating a regime of forced interactions between private parties.
It would be foolish to insist that some degree of coercion is never allowed, but the proper scope for a non-discrimination rule is to counter the monopoly power of certain select firms, such as public utilities and common carriers. The firms that are covered by these new rules, however, operate in competitive environments and the workers who do not like the deal that they receive from one firm can go to other.
It is a profoundly misguided impulse to assume that the world becomes a freer or more just place when government officials can tell people what they must do and whom they must deal with. What the Obama Administration desperately needs is a bit more modesty in what it demands of others. A strong nation can tolerate individual firms with different employment practices. It cannot tolerate an authoritarian government that insists on telling everyone on how to behave.