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The politics of waivers

Once again the Obama Administration is issuing waivers from its controversial Obamacare law in order to make it more politically palatable. With high Catholic populations in key swing states, the Obama Administration announced January 20, 2012, that it will give one-year waivers to Catholic and other religious organizations conscientiously opposed to a new regulation that requires employers to offer free contraceptives to their employees—including controversial abortifacient contraceptives.

Half of the 12 states identified by a recent USA TODAY/Gallop poll to be swing states have Catholic populations of 20% or more.1, 2 Nevada, Wisconsin, and Pennsylvania all have Catholic populations that hover around 30%.3 And Ohio and Florida, both must-win swing states, also have significant Catholic populations.4

While churches are already exempted, the Department of Health and Human Services (HHS) refused to expand the exemption for other religious organizations. For most of these other religious organizations, the one-year waivers delay the implementation of the contraceptive regulation until after the November elections.

By refusing to broaden the exemption to all religious organizations and not just churches the Obama Administration has moved so far left to curry favor with its left-wing base, that even the Washington Post has condemned them for it, saying,

The administration’s feint at a compromise — giving such employers another year to figure out how to comply with the requirement — is unproductive can-kicking that fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith.5

The Obama Administration believes that the one-year waivers, “strike[] the appropriate balance between respecting religious freedom and increasing access to important preventive services.”6

But those whom the Obama Administration is pressuring disagree. “It’s as if they said ‘We’ll give you a year to figure out how to violate your conscience,’” said Sister Mary Ann Walsh of The United States Conference of Catholic Bishops, which has said it will take the Obama Administration to court.7 Colorado Christian University and Belmont Abbey College, are both represented by the Becket Fund for Religious Liberty, already have cases pending against this regulation.8

The Administration’s announcement comes two weeks after it released details on another type of Obamacare waiver—the annual limit waiver. HHS issued details of the hundreds of waivers and waiver renewals it has issued since September 2010. Without these waivers many workers would have lost their health coverage due to Obamacare mandates.

Originally, the annual limit waivers were to be renewed annually. But last June, perhaps also to avoid controversy in an election year, the Department of Human Services announced that it would not accept applications for waivers past September 22, 2011. Those that successfully applied by the deadline were issued a waiver that extends until January 1, 2014 instead of the one-year waivers that were previously issued.

The Daily Caller reported that, of those waivers issued since June 17, 2011, the ones issued to Unions impacted 543,812 union workers while waivers issued to private employer plans affected 69,813 employees.9 This stunning difference in those impacted by waivers is even more stark when one realizes that fewer than 7 percent of all workers in the private sector are labor union members.

Incredibly, the same unions who lobbied for Obamacare are now getting waivers from its effects.

We do not criticize the effects of Obamacare waivers—which are to give Americans a reprieve from the tyrannical power of Obamacare. (We would hope future administrations would give even more waivers should Obamacare not be repealed.)

But we condemn the Obamacare system—a system that requires waivers of its powers over the U.S. health system in order to be politically palatable during an election year—all the while reserving the right to use the full breadth of those powers once the Administration no longer has to care what the public thinks.



1. Susan Page, Resurgent Republicans close gap in key states, USA TODAY, Dec. 12, 2011, available at
http://www.usatoday.com/news/politics/story/2011-12-12/2012-election-swing-states-poll/51844930/1
2. U.S. Conference of Catholic Bishops, Background—U.S. Catholic Population by State, Nov. 3, 2008, available at: http://old.usccb.org/comm/archives/2008/08-160.shtml
3. Id.
4. Id.
5. Editorial Board, Respecting religious exemptions, THE WASHINGTON POST, Jan. 22, 2012, available at http://www.washingtonpost.com/opinions/respecting-religious-exemptions/2012/01/22/gIQA0ZESJQ_story.html.
6. A statement by U.S. Department of Health and Human Services Secretary Kathleen Sebelius, Jan. 20, 2012, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html.
7. Mary Agnes Carey and Shefalia S. Kulkarni, Bishops Will Sue Feds Over Contraception Rule, KAISER HEALTH NEWS, Jan. 20, 2012, available at: http://www.kaiserhealthnews.org/Stories/2012/January/20/hhs-contraceptive-rule-religious-organizations.aspx.
8. The Becket Fund for Religious Liberty, Our Cases, last accessed Jan. 24,, 2012, http://www.becketfund.org/u-s-litigation/our-cases/ .
9. Paul Conner, Labor unions primary recipients of Obamacare waivers, THE DAILY CALLER, Jan. 7, 2012, available at: http://dailycaller.com/2012/01/06/labor-unions-primary-recipients-of-obamacare-waivers/.