Yesterday, the Obama administration signaled that it’s willing to try to address the concerns of religious institutions that object to the HHS ruling requiring them to cover contraception in their employee health plans. When Press Secretary Jay Carney first began fielding questions about the mandate, he repeated the mantra that the administration had found “an appropriate balance” between the health-care needs of women and the First Amendment rights of religious groups. Then, after polling data showed that the mandate wasn’t exactly a hit with Catholic voters — especially white Catholics — Carney’s tune changed. Now he identifies a “need to find an appropriate balance” in a way that ensures “that the policy is implemented and that all women have access to these services that also deals with the concerns that have been expressed.”
As Melissa Rogers first suggested back in October, Hawaii state law may provide a model for striking such a balance. Hawaii mandates that all employers include contraception in their employee insurance plans. A religious employer can invoke a refusal clause that allows it to exclude such services from employee health plans. Once a religious group invokes that clause, it must provide written notice informing employees that contraception is not included in their health plans; they must also tell employees where such services can be obtained. Employees can then purchase contraception coverage from their insurer at a cost no higher than the enrollee’s pro-rata share of the price the employer would have paid had it not exercised the religious exemption. In other words, religious employers don’t have to subsidize plans that cover contraception, and employees can, for a nominal fee, purchase a contraception rider with their own money.
Given that the main objection of the U.S. Catholic bishops has been that the HHS ruling forces them to “pay for” contraception coverage, an arrangement like Hawaii’s ought to satisfy them. So why is the associate director of the USCCB Secretariat of Pro-Life Activities throwing a wet blanket on the idea?
“I’ve reviewed the Hawaii law, and it’s not much of a compromise,” Richard Doerflinger told the National Catholic Register. “The Hawaii contraceptive mandate has many of the same features as the new federal mandate.”
Like the federal rule, he said, the Hawaii bill “covers all FDA-approved ‘contraceptives’ (including drugs that can cause an abortion); and the religious exemption is very narrow (though it does not include the requirement that the religious organization serve only people of its own faith to be eligible).
“It adds an extra feature — the requirement that any religious organization that is exempt must still tell all enrollees how they may directly access contraceptive services and supplies in an expeditious manner.”
Referring for services the church deems immoral is not something the bishops will accept.
Doerflinger says that discussing the Hawaii law is “irrelevant” because “the administration says it is making no more changes to its mandate. The laws of Hawaii and every other state, and their exemptions, will be overridden by the sweeping national mandate.” Not if both the Obama administration and representatives of objecting religious institutions can reach an agreement.
Doerflinger seems to believe that people like Rogers are suggesting that the only way forward is to take every piece of the Hawaii statute and apply it federally. But, as Rogers notes, laws like Hawaii’s are “far from perfect.” What if we used such laws as a starting point for negotiations? What might such an arrangement look like?
There are two points of disagreement: Catholic employers want a broader religious exemption so that they don’t have to pay for health coverage that includes contraception, and the Obama administration wants to make sure women have easy access to contraception services through an insurer.
The first thing HHS would have to agree to would be widening the religious exemption to include institutions like Catholic colleges and hospitals. Exempted religious institutions would not be required to provide employees with health plans that cover contraception. Employees of those organizations could, with their own money, purchase such coverage on favorable terms. That would allay the bishops’ concerns about financially sponsoring contraception.
What about Doerflinger’s objection to the provision of the Hawaii law (like the HHS ruling) that requires exempt employers not only to inform employees that they don’t offer contraception coverage, but also to tell them where they can obtain such services? Even if one finds that objection (or the requirement itself) questionable in the age of Google, there are easy ways around it. The insurer could, as a matter of course, send such a letter to employees after they’ve enrolled. Or, as a couple of Mirror of Justice bloggers have suggested, employers could issue a letter that doesn’t directly refer employees to contraception-service providers, something like: “Because we are a(n) [Name of Ecclesial Affiliation] institution, there are some devices and procedures offered by some medical providers for which we are not able, in clear conscience, to subsidize insurance coverage. For further information please consult your insurance provider.” Or the federal government could do it. Point is, this is eminently negotiable.
During the health-care debate, Doerflinger often emphasized that when it came to abortion funding the U.S. Catholic bishops simply wanted to preserve the status quo — that is, the Hyde Amendment, which bars federal funding of elective abortions. Hyde does not conform to Catholic teaching (which objects to direct abortions, even in cases of rape or incest), yet the bishops were comfortable with keeping it in place. Hyde prevents the mingling of federal and state monies in states whose Medicaid enrollees are entitled to elective abortions. So if the bishops could accept a funding segregation scheme along those lines, then they why shouldn’t they accept a Hawaii-like arrangement? After all, if Catholic institutions are not made to subsidize health plans that cover contraception, then they don’t have to cooperate with what they consider evil.
If recent news reports are right, and the Obama administration is seeking an arrangement along those lines, then the USCCB should welcome such a “compromise” as one that compromises no important principle at stake.