Marty Lederman on the USCCB on the Latest Proposed Accommodation
I asked Georgetown Law Professor Marty Lederman, who organized a wonderful conference on religious liberty and the contraception mandate last fall, what he thought about the bishops’ “Nationwide Bulletin Insert” on the issue. He has graciously prepared a few remarks, which he agreed to share on dotCommonweal. His remarks follow:
Cathy: Thank you for sharing with me the February/March 2013 “Nationwide Bulletin Insert” that the U.S. Conference on Catholic Bishops has recommended for widespread distribution to parishioners over the next two months. You have asked me what I think of the claim in the Bulletin Insert that the recently revised proposed rule of the Department of Health and Human Services on insurance coverage for contraception services would “force the employees of Catholic agencies to accept coverage for themselves and their children that violates their Church’s teaching on respect for human life.”
You are correct that this apparent emphasis on the religious liberty of employees (rather than of employers) is a newly emerged emphasis in the USCCB’s criticism of the HHS Rule. As I explain below, I think it is likely based on a misreading of the HHS proposed rule, and that the rule does not, in fact, present any threat to the religious freedom of employees who accept “their Church’s teaching on respect for human life.”
A bit of background is in order. As you know, the primary objection to earlier versions of the HHS proposed rule was that it allegedly would have required certain employers, principally Catholic social service organizations, to breach their religious obligations by coercing them to be complicit in acts—namely, the use of certain forms of contraception—that they view as sinful. This claim of an alleged “substantial” religious burden based on such a complicity-with-evil rationale was tenuous from the start: Under no version of the HHS rules would an employer have affirmatively chosen to provide contraception coverage to its employees, let alone reasonably be perceived as encouraging the use of such drugs by its employees. The rule would not have required employers to speak approvingly of contraception, nor to refrain from discouraging the use of contraception by their employees and others. And any decision to receive reimbursement for such use from the insurance plan would have been wholly attributable to the independent and private choices of the employees themselves—choices not even known to the employer, let alone legally or morally attributable to it. Moreover, the oft-invoked argument that an employer would be morally complicit in an employee’s independent choice to use contraception by virtue of the employer’s arguable financial “subsidy” of such a choice was highly dubious, too, since this alleged “subsidy” of contraceptive use would not have been materially different from the case in which others use the employer’s tax dollars for the same purposes—or, more to the point, when employees foreseeably use their salary payments (like health insurance, an element of employee compensation for labor rendered) in order to purchase contraception. (There’s no better summary of the issues underlying this “complicity with evil” question than your own lucid explanation at the beginning of this video of one of our conference panels last September, which I’d strongly encourage your readers to watch.)
Notwithstanding the weakness of such claims of a complicity-based burden on religious exercise, the HHS and other Obama Administration agencies have now bent over backward to further accommodate objecting religious employers. Under the new proposed rule, published in the Federal Register on February 6, 2013, all an employer would have to do is self-certify that it is a nonprofit religious organization that has a religious objection to providing coverage for some or all contraceptive services, and then it would not be required to contract for, arrange, subsidize, or include contraceptive coverage in the insurance policy that it must make available to its employees. Its employees would instead receive contraceptive coverage, at without employee cost sharing or additional premiums, through an entirely separate individual health insurance policy that must be provided by the policy issuer (the insurer), rather than by their employer. (According to HHS, issuers would find that providing such contraceptive coverage is cost-neutral, at worst, “because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in women’s health and fewer childbirths.” 78 Fed. Reg. 8463.)
Having thus had the purported religious objections of nonprofit employers very generously accommodated by the Obama Administration, the U.S. Conference on Catholic Bishops has now apparently shifted the focus of its concerns to an alleged burden on the religious liberty of the beneficiary employees themselves.
Cardinal Timothy Dolan puts the point this way: “It appears that the government would require all employees in our ‘accommodated’ ministries to have the illicit coverage—they may not opt out, nor even opt out for their children—under a separate policy.” As you note, this idea is now reflected in the “bulletin insert” the Conference has recommended that parishes distribute to their parishioners; that bulletin describes the new HHS proposed rule as “forc[ing] the employees of Catholic agencies to accept coverage for themselves and their children that violates their Church’s teaching on respect for human life.”
A parishioner reading these statements might conclude that HHS is preparing to require employees to subsidize, if not use, contraception, even when they have religious objections to doing so. Of course, the proposed rule does nothing of the sort, and to insinuate otherwise would be absurd.
So what possibly could be the problem from the perspective of employees’ religious freedom?
The explanation appears in a letter sent to all members of Congress last week from Archbishop William Lori, Chairman of the USCCB’s Ad Hoc Committee for Religious Liberty. Archbishop Lori describes the alleged “coercive element” of the new proposed rule in terms similar to Cardinal Dolan’s statement: “[W]hile the mandate for coverage of abortion-causing drugs, contraceptives and sterilization is hailed by some as a victory for women’s freedom, it permits no free choice by a female employee to decline such coverage for herself or her minor children, even if it violates her moral and religious convictions.”
What is the source of this so-called “coercive element”? Archbishop Lori seizes upon a single adverb in the proposed HHS rule: The insurance company of the objecting religious employer, he explains, “will impose the full mandate ‘automatically’ on the organization’s employees and their female children, using the personal information that the employer had entrusted to them.” Archbishop Lori presumably is referring to proposed subsection 45 C.F.R. 147.131(c)(2) of the new rule, which would provide, in pertinent part:
A group health insurance issuer that receives a copy of the self- certification [by an objecting employer] with respect to a plan for which the issuer would otherwise provide coverage for any contraceptive services required to be covered . . . must automatically provide health insurance coverage for any contraceptive services required to be covered . . . and identified in the self-certification, through a separate health insurance policy . . . , for each plan participant and beneficiary.
It is plain, I think, what HHS intends by this requirement of “automatic” separate contraceptive insurance coverage: As an administrative default rule, the issuer would be obliged to put employees “on the books” for purposes of establishing their eligibility to make use of the additional, separate policy, so that each such employee may request reimbursement for contraceptive services—or not—whenever she sees fit.
Cardinal Dolan suggests that this form of allegedly mandatory insurance “coverage”—i.e., mere eligibility for reimbursement—is itself “illicit,” even if the employee never invokes it or receives any reimbursement for contraceptive services. This is, to say the least, a deeply counterintuitive notion. You would know much better than I, but I find it hard to imagine a reading of Catholic religious doctrine under which the state forces a Catholic to act “illicitly” when it so much as offers her a benefit that she would decline to use on religious grounds.
In any event, even if there were some theological basis for concern about insurance “coverage” for an employee who will never make use of it, there is no reason to believe HHS intends to prevent an objecting employee from “opting out” of enrollment in the separate plan, if she so chooses. The proposed HHS rule itself, for example, proceeds to explain that “[a]n issuer providing contraceptive coverage . . . must provide to plan participants and beneficiaries written notice of the availability of the contraceptive coverage.” Proposed 45 C.F.R. 147.131(d); see also 78 Fed. Reg. 8463 (“Such coverage would be offered at no charge to plan participants and beneficiaries . . . .”). This implies what a reasonable reader would naturally have assumed in any event—namely, that an employee not only may decline to use such insurance coverage (for contraception reimbursement), but may decline the “coverage” itself, if she sees fit to do so.
To be sure, HHS probably did not even consider the prospect of employees asking for opt-outs from the separate contraceptive services “coverage,” because (as explained above) the agency would have had no reason to assume that employees who choose not to seek reimbursement for contraception would find “coverage” in the abstract to be religiously problematic. But if there are any such employees, they can file comments seeking clarification from HHS on the opt-out question (the deadline is April 8, 2013), and HHS can then specifically consider the question in light of the government’s interests in both accommodating religious objections and promoting public health and gender equality by enhancing coverage of important preventive services for women without cost sharing. In the meantime, there is no reason to accept Cardinal Dolan’s apparent assumption that HHS intends to force “illicit coverage” upon objecting employees—let alone to require such employees to use contraception in violation of their religious precepts.
Accordingly, it appears to me that there is nothing to this newfound objection predicated upon alleged concerns about infringements of employees’ religious liberty. I hope I am wrong about this, but, quite candidly, it smacks of desperation—of being unwilling to take “yes” for an answer—even when the government has gone much further than was necessary in order to accommodate religious objections.