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Giving the devil his due

Since I posted on the disturbing news that it looked like the new DOJ might defend the Obama-era contraception mandate, it is only fair to post this update.

As of 5/23/17, the CBO shows an "interim final rule" has been posted by Tom Price's HHS concerning "coverage of certain preventative services under the affordable care act." A copy of the interim rule has been leaked, and it would apparently allow any employer or insurance company to refuse to cover contraceptive drugs on the basis of moral or religious objections. This amounts to a partial rollback of the Obama HHS contraception mandate, though frankly I think even amoral employers and insurers should not be required to provide birth control either. But set that aside. It is to a large extent what I was urging should be done. The interim final rule is just one bureaucratic step away from being made final, and I trust this will provide the DOJ all the cover they need to stop defending the suit against the rule.

Tom Price has been explicit that Trump's "religious liberty" executive order, which was in many ways substantively vacuous (and which could even lead churches to ignore the Johnson amendment, rendering themselves liable to punishment later on), was the prompt for his kicking off the interim rule. I gather that's how the political ball rolls. No such executive order was either necessary or sufficient for Price to take such action, but if Price felt that he needed something of that kind as cover, at least he got that cover.

Needless to say, the Usual Suspects are planning a frivolous lawsuit in which they throw every legally ridiculous claim they can think of at this mere rescinding of the earlier, draconian, Obama bureaucratic diktat, which undeniably lies within Price's legal authority. Among these frivolous claims against the rollback: That the alteration is "arbitrary and capricious," that it is contrary to a provision of the ACA prohibiting discrimination (!), and that it "impedes timely access to health care services" or "creates...unreasonable barriers to the ability of individuals to obtain appropriate medical care." Right, I'm sure mandating free contraception is exactly what those phrases mean. Because not requiring employers to pay for free contraception is creating unreasonable barriers to the ability of individuals to obtain appropriate medical care. (Gee, think of all the other free stuff we could demand on this basis! If the federal government doesn't mandate that all insurance must cover hearing aids, does that count as impeding timely access and creating unreasonable barriers?) This is obviously the standard leftist thing: Wage lawfare by throwing everything you can think of at something you don't like, and see if you can find an activist judge who will make some of it stick.

I note that the mere fact that the leftists may succeed in finding such a judge doesn't mean that Price has been wrong to issue the rule or that he lacked authority to do so, nor even that he was imprudent to do so. It was the right thing to do, legally, morally, and in terms of good policy, and I applaud it.

Comments (3)

I wasn't aware that contraception was a medical service to begin with.

The right move would have been to simply remove the mandate in the regs altogether. There is absolutely NO REASON that the ACA law that was actually passed needs that provision. That Tom Price and HHS did not do so is yet one more proof that the Trump administration is nothing like conservative. Their purposes happen to coincide with conservative purposes a modest percentage of the time, and then they are willing to do the right thing. The rest of the time they give a cold shoulder to conservative values.

In the meantime, the DOJ should have realized that it had not a single iota of justification - even under the ACA law as passed - for trying to shove the mandate down our throats yet again, after the Supreme Court effectively told them "no way". It defies belief that the DOJ operatives were pushing the court cases on the belief that they were just "defending the law", there is no plausible argument that _they_ believed that. Given the way the SC had already ruled, they should have known perfectly well that they were not going to win going back with any mandate that had the Little Sisters' own health care plan involved with contraceptives. They were engaging in harassment, really.

Price should not have needed to wait for Trump's executive order to do his minimalism dance. Completely on his own authority, as Secretary, he could have put the kibosh on the mandate project on day one. That's what political appointees get to do in their departments. All Trump's Exec. Order really did was suggest, anyway. That Price would even want the kind of "cover" the EO gave him indicates a level of spineless jello that is disturbing as to his capacity to do anything else worthwhile as Secretary. Is he going to roll over and play dead as soon as the Shrieking Harpies of (In)Tolerance come out to play on his doorstep? Is he going to hand them a token bunch of conservatives to burn at the stake for the sake of peace? Or is it only Trump himself, and nobody else in the Administration, who gets to exhibit the guts to call them names?

I just hope some crazy judge doesn't say it's "discriminatory" for the HHS mandate to be rescinded. But judges are sufficiently crazy that I fear it will happen.

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