RELIGIOUS organisations are up in arms over the latest change to the Obamacare mandate that employers provide insurance with free birth control to their workers. What is odd is that the change is actually designed to exempt them from the mandate. Religious groups never liked the health-care mandate. They were also quick to pounce on the administration's first solution, which exempted religious groups if they filled out a form that essentially outsourced the provision of birth control to a third party. Critics complained that filling out the form implicated them in the provision of (what they consider to be) abortifacient devices and pills. The Supreme Court has been sympathetic to these concerns. The justices offered their own provisional solution in Wheaton College v Burwell, which let religious non-profits secure an exemption from the mandate without filling out a form. Non-profits need only inform "the Secretary of Health and Human Services [HHS] in writing that it is a non-profit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services.” A three-sentence letter is all HHS needs; the department even offers step-by-step instructions for drafting a “model notice”. Upon receiving the notice, HHS will then work directly with the organisation’s insurance providers to arrange for a full range of free contraceptive coverage without involving, charging or otherwise engaging the organisation itself.

This approach completely and effectively disconnects religious groups from their employees’ contraceptive benefits, explains Marty Lederman at Balkinization. As it is a court-sanctioned solution, President Obama's administration has set out new rules that hew exactly to this arrangement. The changes were announced last week, with an invitation to the public to weigh in before the rules are finalised.

But of course the complaints are already coming in. The accommodation amounts to mere “accounting manoeuvers,” charges Russell Moore of the Southern Baptist Convention. It’s an “accounting gimmick,” says Arina Grossu of Family Research Council, a “clerical layer,” that violates “the rights of Americans with sincere conscientious objections.” The employer, Ms Grossu notes, “still remains the legal gateway by which these drugs and services will be provided to their employees.”

How legitimate is this criticism? The answer lies in how you understand complicity, the state of being culpable for a (perceived) crime without carrying it out yourself. If you know your friend has plans to bomb the town belfry, you have a duty to inform the authorities. If you stay mum, you are legally complicit in the crime. Likewise, religious organisations submit, standing by and allowing their insurers to offer birth control makes them complicit in the destruction of innocent embryonic life. By sending HHS a letter requesting an exemption from the birth-control mandate, the objecting groups claim they are prompting a process that will implant murderous IUDs in the uteri of their workers.

This claim is a stretch. An employer does not buy a weapon when his employee takes his paycheck to a gun show. Nor does he buy a morning-after pill if a female employee uses a benefit paid for by the federal government but provided through his insurer to secure a prescription for ella. If requesting an exemption from the birth-control mandate can plausibly be thought to represent complicity in the provision of birth control, then anyone can claim to be complicit in just about any act. But (even religious) pacifist taxpayers cannot sue the government for using their tax dollars to send troops to the Middle East. Nor can Catholics opposing the death penalty deduct the share of their tax bill going toward executions in states with capital punishment. Political society cannot operate this way.

Take one more analogy. Imagine Prudence, a high-school student, has a moral objection to killing the frog that arrived for her in biology class today. The teacher proposes having her less squeamish lab partner do the deed, but Prudence says she will refuse to dissect an innocent creature who was unjustly killed. Fine, the teacher allows, we’ll give you an alternative assignment. Just write me a note certifying your moral objection to working with the frog and your lab partner will get the Rana pipiens specimen all to himself. “I’m sorry,” Prudence responds, “but I can’t do that. By writing that note I will be implicitly sanctioning the killing of the animal by another student. I will be complicit in her murder. I cannot in good conscience permit this act to be perpetrated in my name.” But it’s not being done in your name, the teacher responds, getting frustrated. Someone else is doing it. The frog is being killed and dissected despite your objection, not because of your objection. What do you want me to do? “Well,” the student finally demands, “I cannot do anything about the moral travesty of all those other frogs being put to death by my fellow students. But the frog assigned to my lab partner and to me must be set free. Otherwise my conscience will be grievously violated.” At this point the teacher raises the issue of her lab partner’s interests. “We cannot allow your moral scruples to deny a student who is keen to slice up a frog a chance at a valuable educational experience,” he says. "But my right is my right," Prudence declares, "and you are violating my deeply held beliefs by permitting my lab partner to kill and exploit an innocent animal.”

Far fetched as it is, this is basically what religious organisations are saying in response to the administration’s latest and most generous accommodation exempting them from the birth-control mandate, a compromise designed to respect employers' beliefs while also guaranteeing women a federally provided benefit. (The new rule, along with two proposals for parsing what counts as a "closely held" religious corporation, is an interim regulation; bothhave been opened to public comment until October 21st.) Will this new objection stick? Given that the Supreme Court proposed the very workaround the Obama administration is now putting into place, chances seem remote. But the justices have certainly reneged on these assurances before.

(Photo credit: SAUL LOEB / AFP)