Obamacare Regulations Prohibit Free Exercise of Religion

As a manager, I generally tried to keep religion out of the workplace. But in recent years I have consulted with religious employers about health care issues.  With religious institutions it is impossible to keep religion out of the workplace – that is their mission and reason for being.

In the summer of 2011 I had clients – institutions associated with the Catholic Church – that had to decide whether to change their employee health care plans for cost-saving reasons or to keep the plans unchanged to stay within the “grandfathering” provisions of the Affordable Care Act (ACA).  In order to control costs for themselves and their employees, these religious organizations decided to abandon any intent of remaining grandfathered.  If my clients had not made these changes, they would have faced double digit premium increases – which would have hit both their employees and the religious institutions themselves, limiting the social services they could provide to their members and to the public.

I told these institutions at the time that it was possible that the HHS regulations under the ACA might mandate birth control and other health care expenses contrary to their beliefs, and they would have to adopt these provisions or stop providing health care as an employee benefit.  Now, HHS and the Obama Administration have done exactly that in the regulations on mandated preventative health services for women.

HHS has mandated that non-grandfathered plans cover all FDA-approved contraceptive methods – including abortificants – and sterilization.  Not only must these services and drugs be covered, but they must be “free” to plan participants.  Although there is a religious exemption, it is exceedingly narrow, limiting the definition of a religious employer to non-profit insitutions that

• inculcate religious values,
• primarily employ persons who share its religious tenets, and
• primarily serve persons who share its religious tenets

Thus, my clients, who serve not only members of their own religion, but also members of other religions and even the non-religious, must violate their own tenets or stop providing health care to their employees and face fines under the ACA that would cause them to have to cease providing the social services that they see as part of their mission.

Requiring religious employers to cover health care expenses that go against their religious beliefs is morally wrong and legally untenable.  Both conservative and liberal commentators have expressed their outrage at the HHS position. 

On the PBS NewsHour on February 3, 2012, Mark Shields said:

what President Obama has done with this policy, and Secretary Sebelius, quite bluntly, is they have taken those Catholics who took a risk to support them, . . . and he has left them out to dry. I mean, he really has, with -- in just a policy that I think is, quite frankly, indefensible.

David Brooks then added:

“When you have the government saying one size fits all, sort of a form of bureaucratic greed, you are going to do it our way, or not, well, then that insults a lot of people.”

The problem with mandates of any type is that they do not enable the diversity of beliefs and practices in our society.  Any government-mandated benefits risk that problem, and come across as paternalistic and elitist.  And now, unconstitutional.  It would be better to permit the market to develop a variety of health care plans that address the needs of various segments of our society.

The First Amendment of the Constitution provides in part “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  This is one of the founding principles of our nation.

Yet the Obama Administration has now said that Catholic and other religious institutions must either offer health care products and services to employees that violate their beliefs or violate the law and pay prohibitive fines.  Or close their doors.  How can this not be interpreted as prohibiting the free exercise of religion? 

And it comes perilously close to establishing the “Church of Obama,” as he permits no meaningful deviation from his regulations to those who believe differently than he does.

Regardless what you think about Obamacare generally or about birth control and abortion, do you think religious institutions should be forced to pay for benefits that are contrary to their beliefs?

Bain Capital v. Benefit Corporations – Where Would You Invest Your Money?

After I heard that Bain Capital had earned its investors an 88% return on their money while Mitt Romney was CEO, any concerns I had about his management of the private equity firm vanished. 

Beth Healy of The Boston Globe said of Bain on the PBS NewsHour on January 11, 2012, 

“And they [Bain] made 88 percent a year for their investors under Romney's tenure, which is -- was one of the best records in the business at that time, from '84 to '99.”

As long as the profits were not obtained illegally, it seems that Bain did exactly what its shareholders and other investors expected – it maximized their returns and increased wealth.  Nothing shameful in that.

What investor wouldn’t want an 88% return on his or her money? And remember that investors in firms such as Bain Capital frequently include large pension funds.  The money distributed to these pension funds benefits many individual wage-earners, not just wealthy individuals like Mitt Romney.  Again, nothing shameful.

Even Democrats are lauding the work of Bain Capital.  Jeff Bussgang, in a recent blog post on CNNMoney, asked 

“should hard-working pensioners and retirees be allowed to invest their savings in an asset class that outperforms nearly every other one available? Private equity has an important role and should be lauded, not lambasted.”

Bussgang labels himself a “card-carrying Democrat” who will vote for President Obama again in November.

Because it seems to me the attacks on Bain and other private equity firms have been unfounded, or at least over-wrought, I was interested to see the article in the January 19, 2012, Wall Street Journal on “benefit corporations” now authorized in seven states.  This new type of for-profit corporation is specifically authorized to have goals other than maximizing profits for shareholders, and to consider social or environment objectives ahead of profits.

Is this a good idea or not?  Should corporations be allowed to deviate from seeking the maximum legal return for its shareholders?  I suppose transparency is key -- what have the corporate managers told their investors about how they will run the company?  The Wall Street Journal article states that these corporations must set out their social and environmental goals in their bylaws and publish an annual "benefit report" to measure itself against those goals. Critics argue that management of these benefit corporations will not be accountable to shareholders, and that there will be little shareholders can do if their investment does not do well.

What do you think? Where would you invest your money -- with a company with a track record like Bain Capital, or in a benefits corporation that might not focus on profits but might suit your view of the world?