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FRANZONELLO: Different words, same policy

- - Wednesday, May 23, 2012

This week my alma mater, the University of Notre Dame, was one of more than 40 plaintiffs to file suit against the Department of Health and Human Services regarding its mandate that private health insurance plans cover life-ending drugs and devices, including the abortion-inducing drug ella. Reflecting on the university's suit and the Obama administration's repeated failure to adequately address the antilife, anti-conscience problems in the mandate, I was reminded of a story that President Obama told Notre Dame's 2009 graduating class.

In his address, Mr. Obama recounted that during his Senate campaign he received a letter from a doctor who objected to the inflammatory language on his campaign website "that said I would fight 'right-wing ideologues who want to take away a woman's right to choose.'"

Mr. Obama told the graduates, "After I read the doctor's letter, I wrote back to him and thanked him. I didn't change my position, but I did tell my staff to change the words on my website."

Looking at his administration's handling of the health insurance mandate, it seems that "changing words" is the president's only "response" to the concerns of pro-life Americans. However, where the position not the tone is the problem, changing words is not sufficient. Monday's lawsuits underscore that point.

In a message about Notre Dame's decision to file suit against the mandate, the Rev. John Jenkins, president of the university, explained that when the Obama administration first announced its mandate in August: "A narrow exemption was given to religious institutions that serve and employ primarily members of their own faith, but, departing from a long tradition in federal law, organizations like Notre Dame, schools, universities, hospitals and charitable organizations that serve and employ people of all faiths and none were granted no exemption," he said.

Although the mandate and its narrow exemption received intense criticism from Catholics and non-Catholics alike, the Obama administration finalized its regulation without change in February.

While its position decidedly has not changed, the administration has been looking for different "words" that may make its constitutionally unsound and politically unpopular stance perhaps more palatable in an election year.

In March, the administration issued an Advance Notice of Proposed Rule Making (ANPRM) purporting to address the concerns of the religious institutions that were not exempt under its narrow definition "religious employer."

The complaint filed by Notre Dame notes: "The ANPRM's recurring theme is that the Government has not found a solution to the problems it created when it promulgated its U.S. Government Mandate. In fact, the ANPRM contains little more than a recitation of proposals, hypotheticals, and 'possible approaches.' It offers almost no analysis of the relative merits of the various proposals. It is, in essence, an exercise in public brain storming."

Importantly, the ANPRM's "public brainstorming exercise" is limited to ideas about changing words, not the position. Any new "accommodation" offered by the Obama administration will still mean compliance with the mandate: "The term 'accommodation' is used to refer to an arrangement under which contraceptive coverage is provided without cost sharing to the participants and beneficiaries covered under a plan"

Thus, though the ANPRM may be searching for new "words," it makes clear that those not already exempted under an exceedingly narrow definition of "religious employer" will still not be exempted. Rather, they will be forced to comply with the mandate by facilitating and participating in insurance coverage for drugs and devices to which they have a religious, moral or ethical objection.

The ANPRM follows the president's "don'tchange the position, but change the words on the website" approach. However, rhetoric is not an acceptable response to a violation of First Amendment guarantees.

It is unfortunate that the University of Notre Dame and others have been forced to resort to the courts to defend their constitutional liberties. The Obama administration should have - and still should - take the position of legitimately defending religious liberty and freedom of conscience, rather than playing with semantics.

Anna Franzonello is staff counsel at Americans United for Life.