I think it is obvious to all, except for the invincibly ignorant, the terminally gullible or the cynically partisan, that the Obama “compromise” on the HHS Mandate is nothing of the sort, but a transparent fraud with the sole goal of eliminating a political problem for Obama in a presidential election year. But what if it was not? Leaving aside the fact that the “compromise” is morally unacceptable under Catholic teaching, here are some of the practical problems:
1. Free Insurance!-Insurance companies for Catholic institutions would be expected to provide gratis contraceptive and abortifacient insurance to employees of those institutions who sought such insurance. Now, insurance companies are in business to make money and not give away their product for free. (A shocking concept I admit in America under Obama.) Leaving aside bookkeeping shenanigans and having this “free” coverage simply lumped into overall premiums, insurance companies are already sounding alarms that they are being asked by the President to provide something for nothing. Does the President have this power? Clearly not under the “takings” provisions of either the fifth or the fourteenth amendments to the US Constitution. A government edict to provide this service might run afoul also of the prohibition against involuntary servitude in the thirteenth amendment. I think it unlikely in the extreme that this ukase by the President compelling insurance companies to provide this service would survive a court challenge.
2. This is a Regulatory Order, not a Law-Let us assume for the moment that Obama is acting in good faith. (OK, everyone can stop laughing now.) Any of his successors could revoke or modify this at will with the proverbial stroke of a pen. The President is doing this under the authority granted him in the 2000 plus pages of the ObamaCare act. What one President can do, another President can undue. Now, let us assume that Obama is not acting in good faith. How long would this proposal survive, unmodified, into his second term if the American people are crazed enough to give him one?
3. Equal Protection-It is doubtful to me that this “compromise” could withstand Equal Protection lawsuits under the fourteenth amendment. One could expect activist pro-abort groups to file such lawsuits on behalf of an employee of a Catholic institution forced to, “gasp”, get “free” contraceptives and abortifacients from an insurance company. I would also expect such lawsuits from employees of non-Catholic institutions that do not receive the boon of “free” contraceptives. Finally, I could imagine such lawsuits on behalf of institutions that want the same deal given to the Catholics and other groups by the administration , but not given to them. I think all of these law suits would stand a good chance of succeeding.
4. That pesky First Amendment-There would be lawsuits aplenty from groups arguing that under the first amendment this constitutes an abridgement of the free exercise of religion. For religions that are doctrinally opposed to contraception, I think such lawsuits would likely succeed.
These are just a few problems off the top of my head. I am certain that our ever sharp eyed and sharper witted contributors and commenters will point out others in the comboxes.