Obamacare “Safe Harbor” for Religious Groups Still a Minefield

By Addie Darling

On Monday a U.S. district court dismissed as premature evangelical Wheaton College’s lawsuit against the HHS mandate under Obamacare requiring all employers to provide insurance for contraceptives and abortifacients. This ruling follows the Obama administration’s revision of the mandate last Friday to extend the so-called “safe harbor,” a one-year exemption to certain religious institutions, to include organizations that only object to some of the contraceptive services required by the mandate, instead of all contraceptives.

Now that the temporary exemption applies to Wheaton, there is no actual injury on which to base the lawsuit, so it was thrown out. Legal technicalities aside, the new amendment to the health care mandate marks both a recognition and denial of freedom of conscience and its importance under the policy.

The motivation for the alteration may indeed be an act of sly political maneuvering to avoid the lawsuit. But let us view the alteration as an honest change of heart. This change in policy at least temporarily respects that religious belief is both rigorous and nuanced, and that even orthodox theologies and consistent methodologies don’t necessarily lead to the same conclusions. In other words: Christians (as well as Muslims, Jews and Hindus), can and do have differences over some matters of doctrine-in this case the morality of contraceptive use- while still remaining faithful to their own tradition and maintaining an internally consistent ideology.

HHS’s most recent alteration to the exemption also is a momentary step towards religious freedom. First, it reflects movement towards the rights of religious institutions to uphold their beliefs. Wheaton College should not have to face a fine on its faith – even if that faith opposes abortifacients while supporting some forms of contraception. Conscientious objection to the HHS mandate is not confined to the Catholic Church. This revision does at least temporarily loosen the policy’s power to define what a religion is, whom the religious institution can serve, and what beliefs it can hold before meriting an exemption from the contraceptive/abortifacient mandate.

However, this move towards freedom of conscience is not enough. “Safe harbor” is merely a year-long reprieve from the crushing fines the mandate requires of employers – save for a very narrow category that essentially only covers houses of worship. The administration evidently is trying to diffuse the tension surrounding the mandate and prevent the explosive chain of lawsuits erupting around the country. But it’s only a time delay. As Archbishop Timothy Dolan of New York remarked in February, “We have a year to figure out how to violate our consciences.” And when the clock expires, these religious groups will be crippled by fines.

“Safe harbor” is a potential minefield, and it offers no assurance of protection for the thousands of charities, colleges, primary schools and soup kitchens that temporarily rest there now. This latest amendment to the exemption merely adds Wheaton College to the list of religious organizations that will be under attack when the time expires.