February 07. 2012 6:01PM

Ramesh Ponnuru: The contraception edict and rule of law


Kathleen Sebelius, the secretary of Health and Human Services, says that a new health-care regulation “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.”

That’s what she said when announcing that religious non-profit groups would have one year to start offering what she called “recommended contraceptive services” in their employees’ insurance plans. Only churches, narrowly defined, are exempt: Religious hospitals and universities are not.

It’s a strange sort of balance. The Constitution provides specific protection to only the first of the two goods being balanced (“religious freedom” and “increased access”). That protection contains no hint of a suggestion that it is up to federal regulators to strike whatever balance they consider appropriate between religious freedom and their other goals.

Administration officials defending the decision in a conference call said they have no estimate of how many people would have greater access to contraceptive services as a result of the regulation — an admission that undermines the contention that a careful balancing took place. Further weakening that claim is Sebelius’s reliance on a recommendation from the Institute of Medicine, which, to judge from its report, heard from no representatives of any religious organization before making it.

In addition to mandating coverage of contraception and surgical sterilization, the new rule covers “ella,” also known as the “week after pill.” While the Food and Drug Administration hasn’t approved it as an abortion drug, it advises doctors that it has been found to cause fetal death in rats and rabbits.

The administration’s decision has elicited opposition, and sometimes outrage, even from liberal Catholics (including some who disagree with their church’s view of contraception). They supported Barack Obama in 2008, and also backed the health-care law he later signed as President even though the Catholic bishops opposed it for indirectly subsidizing abortion.

Sister Carol Keehan, the president of the Catholic Health Association, drew criticism for breaking with the bishops to endorse the law. Her support helped sway enough legislators for it to pass the House narrowly. Now she, too, is opposing the regulation, which the administration is imposing as part of its implementation of that law. The rule is also drawing opposition from abortion opponents of many faiths.

Both political and legal challenges are under way. The Becket Fund for Religious Liberty is filing a suit, citing both constitutional and statutory objections. Rep. Jeff Fortenberry, a Nebraska Republican, and Sen. Roy Blunt, a Missouri Republican, introduced legislation months ago to keep employers from having to cover procedures to which they have moral or religious objections.

“The strong arm of government should not force Americans to buy health-care products that they have reasoned objections to,” Fortenberry told me. After Sebelius’s announcement, Sen. Marco Rubio, a Florida Republican, introduced his own narrower bill that would protect employers with religious objections to contraception and abortion.

It would be no great hardship for someone who has decided to work at a Catholic hospital to pay for contraception out of pocket. The only reasons to mandate coverage are essentially political, such as the desire to get society to regard abortion as basic health care.

“We want a faithful Catholic businessman not to have to provide a service he finds unethical,” says Fortenberry, who adds that the federal government didn’t impose any such requirement before the enactment of the new health-care law. But that’s not a wholly satisfactory arrangement, either: If an employee wants health insurance that covers contraception, should the moral views of his boss be an obstacle?

The best solution would be for the federal government to stop encouraging people to get health coverage through their employers in the first place. If people bought their own health insurance with their own money — rather than relying on their employer or other taxpayers — they could pick the policies that best fit their expected needs and moral convictions. But instead of moving in this direction, the new health-care law seems likely to make social conflicts more intractable.

The liberal Catholics who backed the law and now oppose this regulation have an additional reason for bitterness: It’s not as though the administration has been insisting on a rigid application of the law in all other cases. It has been notorious for handing out waivers freely — just not to religious groups.

The administration’s actions illustrate an underappreciated flaw in the law. Congress, even the liberal Congress of 2009-10, would never have enacted a law forcing religious charities to violate their consciences this way. The law earned the backing of the Sister Keehans of the world by being vague. Much of the health-care statute amounts to a grant of power to the bureaucracy to resolve the key issues.

A waiver today, a sweeping regulation tomorrow: It’s not a democratically accountable way of making law — or rather, it’s not a way of making “law,” as in “the rule of law,” at all.

Ramesh Ponnuru is a Bloomberg View columnist and a senior editor at National Review. His email address is rponnuru@bloomberg.net.