The Superfluity of the HHS Mandate

As a deacon, I sit on the Personnel Committee for my church. For me, it’s a learning experience since two of my colleagues are benefits administrators for my denomination who patiently answer my dumb questions. We’d been discussing the healthcare package for the church employees and I raised the question of whether it provides the “family planning” services at issue in all the lawsuits.

Much to my chagrin, the answer was “yes,” not because my church or my denomination enthusiastically embraces free sexual expression, but because the church (and, as it happens, the denominational headquarters) is not a large enough employer to command a customized benefits package from the health insurance industry. All the insurance plans approved by my state and offered to small employers like my church and my denomination apparently include these “benefits.” In a sense, the insurance market has for a long time “mandated” that we provide birth control and abortifacients for our employees and participate through our payments in providing them for everyone currently covered by our health insurance company.

Absent a change in the marketplace, the HHS mandate is for us superfluous, as we’re not big enough either to self-insure or to cut an individualized deal with our insurer. I’m not conversant enough with the employment arrangements in the wide range of American denominations to make a blanket statement, but I suspect that any church that hires its own staff and effectively serves at their employer of record is in pretty much the same boat. In other words, at the moment , any exemption granted by the Obama Administration or won through litigation helps big religious institutions (e.g., archdioceses, hospitals, universities, and social service agencies) but not the myriad smaller churches and faith-based organizations. All the smaller institutions are still compelled to buy their benefits packages more or less off the shelf, and seem not to comprise a large enough market for insurance companies voluntarily to provide coverage in conformity with their consciences.

I can think of a couple of ways to enable more religious employers to act conscientiously. First, the Department of Health and Human Services could demonstrate its respect for religious liberty and the place of religious and faith-based institutions in our pluralistic society by not only withdrawing its contraceptive and abortifacient mandate but also requiring health insurance companies to offer a “clean” benefits package to any employer that requests it. Second, state insurance regulators could require insurance companies that operate in their states to make available a range of “off-the-shelf” packages to those who conscientiously object to providing these services to their employees. I have a hard time imagining that the Obama Administration would take this step, but could see a number of state insurance commissioners acting to protect the consciences of faith-based institutions.

There’s also a third possibility, which, like the second, requires at least the abandonment of the HHS mandate. It is that those religious and faith-based employers who care about these matters organize their market power to create adequate demand to which the insurance companies have to respond. If there is indeed demand for health insurance packages without this sort of coverage, then—absent the HHS mandate—I assume that insurance companies would offer them.

I’d love for the marketplace to work so that my church, my denomination, and I wouldn’t have to cooperate in evil. But if there’s a proverbial market failure here, then I’m more than willing to embrace a kind of regulation that promotes religious liberty.