Feds admit the truth: they’re co-opting ministries’ health plans

Printed from: https://newbostonpost.com/2015/09/15/feds-admit-the-truth-theyre-co-opting-ministries-health-plans/

“You keep using that word. I don’t think it means what you think it means.” So said swarthy swordsman Inigo Montoya in the cult classic The Princess Bride, responding to his boss Vizzini’s use of the word “inconceivable!” Vizzini was describing things that were not only conceivable, but actually happening before their very eyes.

Like the fictional Vizzini, some federal agencies have been persistently using the word “opt-out” to describe a government scheme that actually forces private ministries to opt-in to a violation of their faith. And, just recently, six federal judges have called the agencies out.

To quote Montoya again: “Let me ‘splain.”

Several years ago, the Department of Health and Human Services wrote a regulation that forced religious ministries across the country to include abortion-inducing drugs and contraceptives in their health plans. This caused a national outcry, since the regulation obviously violated the religious liberty of these ministries. So the feds contrived a convoluted scheme whereby the ministries could supposedly “opt-out” of covering those drugs in their health care plans by signing a form that — wait for it — would still require their health care plans to cover those drugs.

Calling that an “opt-out” takes chutzpah. Unfortunately, some courts have been less effective in seeing through the scheme than the fictional Montoya. This is in part because taking over a “health plan” is an abstract event that you can’t see with your eyes. But replace “health plans” with “health clinics” and the game becomes more clear.

If ministries provided on-site health clinics — instead of health plans — it obviously would not be a solution to say that the alternative to providing abortion-inducing drugs and contraceptives at those clinics is signing a form that allows federal agencies to come in and hand out those same drugs. Either way, the ministries must give permission for their own clinics to be used to distribute drugs that violate their faith.

It’s more than a bit Orwellian for the government to say that opt-ins are really opt-outs. But when the ministries explained that the agencies’ scheme violates their sincere religious beliefs, the agencies not only told them that their religious beliefs were wrong, they mocked them for it. For instance, the agencies told courts that the Little Sisters of the Poor’s sincerely held beliefs boil down to “fighting an invisible dragon” that they can vanquish with “a stroke of their own pen.” (Get it? The abortion-coverage mandate is the invisible dragon, and the mighty pen is signing the “opt-out” form.) The agencies insisted time and time again that, regardless of reality, the ministries should consider the opt-in form to be an “opt-out.” And several courts have bought the government’s line.

But bureaucrats don’t get to tell nuns what to believe, especially when those bureaucrats mischaracterize their own Orwellian scheme. Recently, a number of federal judges have called out the agencies’ game. First, a group of five judges reminded the agencies that they can’t “tell people what their religious beliefs are” and warned that the government’s plan is a “dangerous approach to religious liberty” that is “contrary to all precedent concerning the free exercise of religion.” Next, another federal judge rejected the agencies’ shell-game as “a purposely complicated act of bureaucratic legalese and accounting tricks” that force the ministries to “opt-in” to permitting the agencies to “infect the [ministries] health plans.”

Perhaps sensing that the jig was up, the government just admitted to the U.S. Supreme Court that they are wrong and the ministries are right: the government’s scheme really does take over the ministries’ health plans. Would that they had done so years ago, instead of leading some lower courts to exactly the opposite conclusion.

These shenanigans would be mildly humorous coming from a bumbling movie villain like Vizzini. But from federal agencies of the most powerful government in the world, they are chilling—especially since their success in persuading courts to rule against religious ministries means these donation-run religious groups are facing fines large enough to bring down mega-corporations. It’s time for the government to stop playing word games and start leaving religious ministries alone.

Daniel Blomberg is Legal Counsel of the Becket Fund for Religious Liberty.