Some liberal pundits are complaining that Catholic groups should have negotiated instead of filing suit to stop the HHS Mandate from requiring them to provide their employees items against their beliefs.
But there are no “negotiations,” for several reasons.
First, meaningful “negotiations” do not exist if one side is pointing a gun at the other’s head. The administration did not suspend its anti-religious rule pending discussion. It finalized its rule with full force, and said maybe we’ll make changes after the election.
Second, the bishops’ critics don’t know administrative law. No new rule was proposed. HHS admits it doesn’t know what a new rule would look like.
Therefore, third, it is false that a new rule will issue on or shortly after June 19 when the comment period ends. It will take months to review the comments first (unless they never intended to consider those comments). Then the adminsitration would have to start the extensive notice-and-comment process all over again, because no rule has been proposed, so there is no rule to finalize.
Fourth, the administration took two essential matters off the table for any “negotiation.” It refuses to expand the mandate’s exemption beyond self-focused churches. For everyone else, it refuses to budge from forcing entities to help their employees obtain free coverage against the employers’ beliefs, under the fiction that it is “free.” The only thing the administration will “negotiate” is how to do this, not whether. So even if the fictitious compromise did exist, religious organizations would still need to sue.
Fifth, it is false that the administration’s anti-religious rule is not in effect until August 2013. The final rule starts August 2012. The 2013 “safe harbor” does not suspend the mandate–it just declares that the government won’t enforce it. But the mandate also allows private enforcement under 29 U.S.C. § 1132, letting employees themselves sue. Don’t think employees would sue? Get real. If the administration was serious about a “safe-harbor” it could have declared its final rule legally inapplicable. Instead it said our final rule is fully in force, but we’ll wait to fine you. And some groups don’t even qualify for the extra year. The “safe-harbor” is a head fake.
The USCCB’s comments to HHS last week make clear that even under the vaguely theorized “compromise,” (1) it is a fiction that employers won’t pay, and (2) regardless of who pays, employers must still help the employee get the objectionable coverage by giving them a plan directly enabling that coverage. The adminstration has refused to negotiate on this moral cooperation mandate.
The bishops’ critics essentially insist that everyone adopt their lenient moral theology. But it is illegal for the federal government to favor theological liberals and penalize others. Insisting on that arrangement is not “negotiation.”