The Bureaucracy’s Creep Against Life

This past Friday, the U.S. Department of Health and Human Services (HHS) postponed for a year (until August 2013) the effective date for an interim final rule (IFR) that would require many religious employers to cover under their health insurance plans preventive pregnancy services, from contraceptives to sterilization and “morning-after” pills. Churches may obtain exemptions, but many religious employers such as hospitals, colleges, and social service organizations may not. “I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services,” HHS Secretary Kathleen Sebelius declared in a press release. Sure it does. The Catholic Church and the many other religious institutions that protested a rule that would compel payment for practices in violation of their teaching and convictions were faking it; they just wanted a year to change their minds.

Lawsuits against the rule are already pending, including two by the indispensable Becket Fund. (The Fund’s website provides the complaints and background information.) The Fund and its clients have my best wishes and prayers but they don’t really need either: the IFR is obviously unconstitutional and unlawful, and the administration will receive another judicial trashing for its “extreme” and “extraordinary” positions on matters of religious freedom (see the Supreme Court’s recent, unanimous decision and opinion in Hosanna-Tabor Evangelical Lutheran Church v. EEOC). Let’s pause, though, over the so-called process that produced this abomination: it’s a perfect illustration of Obamacare in action.

The Affordable Care Act (ACA) requires certain employer health plans to cover preventive care for women without co-pays or deductibles, “as provided for in comprehensive [but then non-existent] guidelines supported by the Health Resources and Services Administration [HSRA].” ACA §1273 (a)(4). In July 2010, HHS proposed an IFR to the effect that “preventive” care should encompass pregnancy prevention, and it instructed the private Institute of Medicine (IOM) to provide guidance. The IOM invited and heard presentations from such groups as the National Womens Law Center, Planned Parenthood, and the Guttmacher Institute (but not from any religious group). Predictably, the IOM urged inclusion of the full panoply of FDA-approved devices and procedures, including sterilization and so-called “morning-after” and “week-after” pills. (These drugs “prevent” pregnancies after they have begun. Many Christian denominations in addition to the Catholic Church view them as abortifacients.) Within less than two weeks, without further notice or public comment, HHS adopted this position in an IFR and HSRA issued guidelines. 76 Fed.Reg. 46621 (published Aug. 3, 2011), 45 C.F.R. § 147.130; http://www.hrsa.gov/womensguidelines.

Follow the progression: first comes a statutory text of sufficient ambiguity to keep the Catholic Health Association, representing Catholic hospitals, on board in support of the ACA. (Now that it’s been had, one hopes the association has learned its lesson.) Then comes an administrative creep forward and a de facto delegation to a private organization of known disposition, whose perceived authority and expertise provide cover for the bureaucracy. Then comes the wholesale, underhanded adoption of the interim rule.

This “process” has been playing out while Mrs. Sebelius’s office has issued hundreds of waivers for employer health plans that fail to comply with the ACA’s and HHS’s exalted standards, such as “mini-med” plans used by McDonald’s. Without those waivers, the ranks of the uninsured would swell. Hiding the ACA’s inanity is sufficient reason to suspend the legal requirements; First Amendment objections apparently aren’t. And the administration has proceeded by IFR, without the full notice-and-comment rulemaking apparatus of the Administrative Procedures Act. The APA requires “good cause” for IFRs, 5 U.S.C. 553 (b)(B)—most commonly, situations that do not admit of delay (think homeland security). A rule that can be suspended for a year can’t have been that urgent to begin with.

Perhaps, the administration proceeded in this fashion because it is “in a war” on the pregnancy prevention issue, as Secretary Sebelius put it in a NARAL fundraiser. However, the uproar over the pregnancy rule should serve to heighten public awareness that the entire Affordable Care Act, from coverage mandates to health exchanges to tax penalties, is being implemented by waiver and interim regulations. It can’t be implemented any other way: the insurance markets would collapse, and we’d still be noticing and commenting in 2020.

A statute that compels the systematic corruption of the rule of law has no place in the U.S. Code. Obamacare delendam est.