Obama's policy change does little to quell the criticism on the right. W.H. reopens religious-groups rift

President Barack Obama wasn’t looking for another fight with religious groups when the administration attempted Friday to clarify its birth control mandate.

But he got one anyway.


The change was meant to help quell a wave of lawsuits by providing guidance on which employers are exempt and how exactly they would meet the mandate without violating their conscience, according to close observers of the process.

( Also on POLITICO: Obama administration changes contraception rules)

To leaders of some religious and conservative groups challenging the policy, though, it was the latest example of an administration that’s struggled to relate to them just not getting it.

The Faith & Freedom Coalition called it “window dressing and more of the same.” The Catholic Association tagged it “just another accounting gimmick.” The Judicial Crisis Network described it as “no solution at all.”

“Today’s proposed rule does nothing to protect the religious freedom of millions of Americans,” said Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, which has helped employers bring lawsuits against the administration. “There would have been an easy way to resolve this — expanding the exemption — but the proposed rule expressly rejects that option.”

Two of the most influential groups — the Catholic Bishops and the Catholic Health Association — have yet to weigh in.

But the critical response from many groups beyond those two organizations highlighted the deep divide between Obama and the religious right — a rift exacerbated by the contraception mandate and the year of election-year politicking that it spawned. At issue: whether institutions – or even business owners — with moral objections to birth control would be forced to offer health insurance policies that cover contraceptives free of charge.

A senior administration official said the White House didn’t expect to suddenly assuage leaders of the religious community. The proposed new rules — which included broadening the definition of which institutions were exempt — were aimed more at strengthening the administration’s hand in court than winning over the Catholic and other religious groups that objected to the Obamacare provision, the official said.

White House press secretary Jay Carney said the administration tried to balance religious liberty with the ability for women to access affordable birth control, and that principle guided the president’s latest attempt at compromise.

“The criteria that he made clear were important to him as these rules were put in place, which is that we need to provide preventative services — access to preventative services for all women, and that includes contraception,” Carney said. “And we also needed to respect religious beliefs, and that is the balance the president made clear he wanted to be kept in mind as these rules were proposed and developed.”

For a year the White House had been working on its second set of changes to the Obamacare contraception coverage rule, which came under broad attack in January 2012 for failing to accommodate the concerns of religious-affiliated universities and hospitals. The administration revised the rule several weeks later with a compromise for faith-based institutions that a third-party insurer would pick up the cost and logistics of the coverage. Friday’s announcement was aimed at filling in the details and clearing up confusion.

The vast majority of Americans back the use of contraception, and about three-quarters of Catholic women in polls taken at the height of last year’s controversy parted with the Church on its prohibition of condoms and the pill.

But the political danger for Obama, particularly during the 2012 election, was that it would be viewed as a dangerous nanny-state intrusion into the religious freedom of Catholics.

The initial rule exposed ideological, religious and gender divisions within a White House that prides itself on pulling together as a cohesive unit after a major decision, however sloppy the deliberation. There was concern among some advisers that it would seriously undermine Catholic leaders who bucked the bishops by supporting the health care law, including Sister Carol Keehan, head of the Catholic Health Association.

The White House managed to regain its balance only when Republicans overplayed their hand with harsh comments directed at supporters of the birth control mandate.

“The Obama administration underestimated the sensitivity around this issue initially,” said Lanae Erickson Hatalsky, director of the social policy and politics program at Third Way, a centrist strategy group. “They stepped on a landmine and had a really hard time getting back to a place that they felt more comfortable.”

Erickson said the proposed new rules should solve “a lot of the issues.”

The Rev . Tom Reese, a Jesuit theologian at Georgetown University, agreed: “The administration has significantly strengthened its position in the court of public opinion and the court of law.”

Tim Jost, a Washington and Lee law professor who backs the health law, said the new policy did represent a genuine change for religious groups.

“I would imagine that if you go to the Pro-Life websites you’ll find lots and lots of cries of anguish today, but it [the administration proposal] does address the issue: Religious organizations are not going to have to pay for contraception,” Jost said.

The rule proposed Friday broadened the definition of a religious nonprofit — and outlined a way of walling off their money so they aren’t paying for the benefit, which women will still get for free under an employer health plan.

But it didn’t exempt businesses owned by religious people who object on moral grounds to being forced to pay for contraception, or to emergency contraceptives that they believe cause early abortions.

This concept could be called the Taco Bell exemption, named for a comment made last year by Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops.

He called for removing the provision from the health care law not only for Catholic employers but also for “good Catholic business people who can’t in good conscience cooperate with this.”

“If I quit this job and opened a Taco Bell, I’d be covered by the mandate,” Picarello told USA Today.

That argument is behind some of the more than three dozen lawsuits making their way through the court, and “the accommodation is radically inadequate to deal with the religious liberty violations of the mandate,” Duncan said.

Polls find that the public was quite sympathetic to religious entities that did not want to violate their teachings – but a lot less sympathetic to individual business owners who wanted their beliefs to trump public policies about health plan benefits.

Reese also doesn’t expect it to hold much weight in court, even amid expectations that the religious freedom issue being raised by private employers could make its way to the Supreme Court.

“If that is opened up, then any employer can reject to any regulation from the government based on religious beliefs,” he said. “I doubt the courts will accept that.”

Jennifer Haberkorn contributed to this report