The PJ Tatler

IRS Readies Enforcement of Obamacare Contraception Mandate

In the words of the Weekly Standard’s Ashley McGuire, “This won’t turn out well.”

On August 1 of this year, non-profit employers who object to the so-called “contraception mandate” in Obamacare will be forced to supply contraception and abortion drugs to their employees — even if it violates their religious beliefs.

And enforcing that mandate will be those fair, balanced, and religion-friendly employees at the IRS. You know — the same folks who claim no one targeted conservative and Christian groups who were seeking tax exempt status — except when they did.

As McGuire points out about the mandate, “If the case for repealing this unjust intrusion on the free exercise of religion was always strong, in recent weeks it’s gotten stronger still.”

Oh, yeah.

The administration claims that the conscience of religious people has been taken into account with a compromise that isn’t much of a compromise:

President Obama tried to mollify the latter group’s concerns by offering an accommodation that would let the nonprofits defer the costs and responsibility of contraception coverage to an insurer or third-party administrator who could offer the drugs’ through a separate plan. But the nation’s Catholic bishops and religious groups have largely rejected the compromise, leaving the situation in limbo.

But it is the approximately 60 suits filed in federal court by corporations owned by devout Catholics and other Christians that may determine the fate of the contraception mandate. It is expected that at least one or more of those cases will wind up before the Supreme court.

Meanwhile, we have this to look forward to:

The way the regulation is written, it is the IRS that determines whether an organization qualifies for full exemption from the HHS mandate. To qualify, an organization must be a nonprofit as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) (oh, my!) of the amended Internal Revenue Code of 1986 and therefore exempt from filing Form 990, which most nonprofits must file annually.

Religious entities that do not qualify for the 990 exemption may seek alleged relief from the mandate by certifying to their insurance company that they cannot provide the objectionable services and products. The insurance company is then required to issue to each covered employee a separate policy covering contraception, sterilization, and abortifacients free of charge. So the employer is still in the position of facilitating the flow of objectionable services to his employees.

What’s more, these employers must maintain their “self-certification” in their records for each plan year and make it available for examination upon request by “regulators, issuers, third party administrators, and plan participants and beneficiaries.” The IRS may investigate and challenge any self-certification.

So the very enforcers at the IRS whose own inspector general admits they systematically targeted conservative and religious groups will now get to decide who is entitled to ladle soup into a bowl for a homeless person without violating his or her conscience.

The Catholic Bishops pointed out that the “compromise” is hardly that:

In a statement issued late Feb. 10, the U.S. Conference of Catholic Bishops said Obama’s decision to retain the contraceptive mandate “is both unsupported in the law and remains a grave moral concern.” The conference also said the continued “lack of clear protection for key stakeholders … is unacceptable and must be corrected.”

“The only complete solution to this religious liberty problem is for (the Department of Health and Human Services) to rescind the mandate of these objectionable services,” it added.

While it exempts dioceses and some other religious organizations, the mandate still applies to Catholic hospitals and religious universities.  HHS is still in discussions with the bishops to try and find a compromise for those entities.

McGuire replays recent history to show why we should be concerned that the IRS has anything to do with determining whether a company or non-profit organization should not obey the mandate:

As details of the IRS scandal continue to emerge, it’s evident that religious values were indeed scrutinized by bureaucrats. A growing number of religious groups and charities are coming forward to report delays in their applications for tax-exempt status, including the Catholics United Education Fund, Christian Voices for Life, and Focus on the Family affiliate Family Talk Action. Others, like Samaritan’s Purse, underwent audits or other IRS scrutiny that seemed out of left field. One targeted group, the Coalition for Life of Iowa, was asked by the IRS about the content of its prayers.

What’s more, Lois Lerner, the head of the IRS’s division on tax-exempt organizations who was placed on administrative leave last month after declining to testify before a House committee, was rewarded with that job after a history of harassing religious people in a previous position as head of enforcement at the Federal Election Commission from 1986 to 2001.

Having lost whatever reputation it had for politically neutral enforcement of the tax code, the IRS, come August 1, will nevertheless gain new authority to determine what constitutes religious activity and which religious employers are entitled to conscience rights under Obamacare.

One can imagine the kinds of questions the IRS will want answered before granting the exemption, including how many times a week you go to church, or perhaps whether your say your bedtime prayers before falling asleep.

President Obama gave this explanation for why objections based on religious beliefs to the contraception mandate should be ignored:

“No women’s health should depend on who she is, who she works for, or how much money she makes,” Obama said. He said the new policy remains faithful to the “core principle” of free preventive care, but also honors the principle of religious freedom, which “as a Christian, I cherish.”

If the IRS uses that statement from the president as a guide, it would seem that few companies run by devout Christians or even Christian non-profits would have much of a chance at an exemption.