Last weekend, Winter Storm Franck dislodged an avalanche of verbiage onto the sleepy hamlet of First Thoughts. Over the past few days, residents have been laboring to uncover the contours of an argument that engages the moral tradition many of them hold dear. Better fire up the snowblower.

Matthew Franck and I do not agree about several features of the Obama administration’s latest revision of its contraception mandate. Where he sees government intrusion and moral thuggery, I see an imperfect but serious attempt to grapple with the concerns of religiously affiliated employers. He rejects my argument that Catholic employers may, according to their own moral tradition, licitly abide by HHS’s proposals. But now Franck goes further, claiming that I have unwittingly undermined my own position by admitting that the premiums paid by a Catholic employer might be used to cover contraception for an employee of another company. You see, two weeks ago I wrote that the “accommodation” would not “oblige a Catholic institution to fund contraception coverage.” And then the following week I tried to help Franck understand how insurance works — by explaining that insurers pool premium payments from all their customers and distribute the funds as they see fit. Aha!

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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.) Read the rest of this entry »

Last week, in a tour de force of intellectual humility, Matthew J. Franck treated First Things readers to a catalogue of my confusions. He didn’t take kindly to my analysis of Cardinal Timothy Dolan’s response to HHS’s new proposals for the contraception mandate. First, Franck claims that I am “confused…about what the government actually announced.” Second, he says that my analysis of the moral culpability of religious employers is unreliable because I am “confused about the economic reality of insurance.” This confusion, Franck informed me via Twitter, is profound: He sees “no sign from you either of an argument, an ability to read, or an understanding of arithmetic.” Given those impairments, I may not be able to formulate a successful response to Franck’s confident critique, but I beg your indulgence as I give it a shot.

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Today, Cardinal Timothy Dolan released a statement outlining the USCCB’s objections to the Obama administration’s revision of the revision of the contraception mandate. The new rule scotches the previous iteration’s much-maligned four-part definition of “religious employer,” and proposes arrangements to make sure religious employers — including colleges, hospitals, and charities — won’t have to pay for or refer for contraception coverage in their employee health plans. In other words, the Department of Health and Human Services listened to its critics and attempted to allay their concerns. As the editors of Commonweal put it, “This will do.” The U.S. Conference of Catholic Bishops disagrees. 

First, a word of praise for the tone of Cardinal Dolan’s statement. It avoids the hyperbolic rhetoric that has characterized this debate for far too long. The cardinal states that the bishops are open to further discussion. He acknowledges that the Obama administration “has heard some previously expressed concerns and that it is open to dialogue,” and promises “additional, careful study.” He notes that the new proposal does away with the “exceedingly narrow” definition of “religious employer,” which, the bishops claimed, “created a ‘second class’ of citizenship within our religious community” — subordinating Catholic charities to Catholic parishes. But apparently that’s not enough for the bishops.  Read the rest of this entry »

In their dispute with the Obama Administration over the HHS contraception mandate, a number of U.S.bishops have suggested that they will have to close hospitals, schools and Catholic universities if the mandate is not modified or withdrawn.

But would the bishops really be required to do this?  While I’m sympathetic to the bishops’ concerns and support their efforts to broaden the exemption for religious employers, I do not think it is true that a failure in this regard would require the closing of Catholic institutions.  For the moment, I am going to set aside the question of whether closing is the most likely outcome or whether the institutions in question would merely be asked to sever their formal ties with the Church. Clearly, neither is a desirable outcome.

The concept in moral theology that is in play here is known as “cooperation.”  When we facilitate the acts of another person in some way, we are said to be cooperating with them.  If those acts are evil, then we may share some moral culpability for those actions.

In general, Catholics are called to “do good and avoid evil.”  If we share the evil intent of the other person (e.g. driving the getaway car to facilitate a bank robbery), it is said to be formal cooperation with evil and morally blameworthy.  However, if the actor is cooperating but does not share the intent of the other person (e.g. driving the getaway car because you have a gun to your head), their cooperation is said to be material.  Material cooperation may be permissible if the act of cooperation is not itself intrinsically evil (driving a car is, in itself, a neutral act) and there are proportionate reasons for the material cooperation (e.g. fear of death).

A related concept is the degree of proximity between the person cooperating and the original actor.  My moral culpability in the actions of another person may be greater if my actions directly facilitate his act.  If my actions assist the original actor only indirectly and I do not share his evil intent, this is said to be “remote material cooperation” and my moral culpability is reduced still further.

We can assume that some employees of Catholic institutions use contraception, which Catholic teaching holds to be an intrinsically evil act.  To what extent is the Church, as their employer, morally complicit in those acts?  Read the rest of this entry »

It’s far from conclusive, but there’s growing evidence that the Affordable Care Act could lead to a significant reduction in the number of abortions performed in the United States.  (If true, it also follows that repealing the Affordable Care Act would result in more, not fewer, abortions than leaving the law in place.)

Writing for The Atlantic, Brian Fung reports, “As the number of insured has gone up in Massachusetts, new state data show a corresponding decline in the number of abortions performed there since 2006.” Since passage of “Romneycare”, Massachusetts’ abortion rate has dropped 17%.

Fung hastens to add, “it’s possible that the decline in the abortion rate had nothing to do with Romneycare”, noting that Massachusetts’ abortion rate has declined steadily since 1991.

Nonetheless, researchers think there’s a link.  Fung quotes Dr. Patrick Whelan, who first identified the trend as saying, “When women have more stable access to medical care, they’re more likely to see doctors, they’re more likely to have somebody inquiring about their sexual health. The fact that you have somebody who cares about you results in people being healthier, and that includes not getting pregnant if they don’t want to be.”

Last week Wheaton College, an evangelical school in the great state of Illinois, let it be known that they were joining the Catholic University of America in a lawsuit against the Obama administration over the contraception mandate. Why would an evangelical college sue over the contraception mandate when Protestants have no problem with artificial birth control? Because, as Wheaton President Philip Ryken explained during a conference call, “the mandate forces us to provide abortion-inducing drugs through the insurance coverage that we provide to our faculty, students, and staff.” And why now? The college was waiting to see what the Supreme Court would decide — and, according to its legal counsel, Wheaton is subject to the preventive-services mandate in six months.

That’s soon. Any chance Wheaton’s employee health plans are considered grandfathered — like the plans offered by the Franciscan University of Steubenville — and therefore exempt from the mandate? No, according to Kyle Duncan of the Becket Fund. What about an exemption? “There’s no question that Wheaton can’t qualify for any exemption from the mandate for the simple reason that it’s not a church or religious order,” Duncan continued, assuming that the Department of Health and Human Services would deny the college’s request for an exemption. What about the so-called safe-harbor provision, which would delay enforcement of the mandate for religious employers until August 2013? “Wheaton can’t profit by any safe harbor the government has offered simply for purely technical reasons about changes made to its insurance policy,” Duncan claimed.

Technical reasons? The safe harbor provision “has a number of technical requirements to be able to qualify,” Duncan elaborated. “For example, it has a cut-off date of February 10, 2012. Because of technical changes made to Wheaton’s insurance policy after that date, it can’t qualify. If that sounds arbitrary that’s because it is.”

No, it’s not.  Read the rest of this entry »

“When I moved to Canada in 2008, I was a die-hard conservative Republican. So when I found out that we were going to be covered by Canada’s Universal Health Care, I was somewhat disgusted. This meant we couldn’t choose our own health coverage, or even opt out if we wanted too. It also meant that abortion was covered by our taxes, something I had always believed was horrible. I believed based on my politics that government mandated health care was a violation of my freedom.”

That’s the opening paragraph of a detailed and thoughtful reflection titled “How I Lost My Fear Of Universal Health Care” by “Melissa”, a young mother of self-described “Protestant Fundamentalist” background, writing about how her experience of Canadian health care has worked on her, and both calmed some of her fears and changed some of her thinking over the past few years.

Despite the fact that Melissa comes at these issues (including abortion) with a different theological and ecclesiological background that most Roman Catholics do, she shares many of the same concerns.  And, despite the fact she share many of those concerns, some of her conclusions most likely aren’t the ones many of us would come to.

But what I like most about her essay—and why I think it’s worth discussing—is that it’s an excellent example of the power of lived experience.

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On Tuesday the Franciscan University of Steubenville announced that it would stop offering students health coverage at the end of the summer. Why? Contraception coverage and cost:

The Obama Administration has mandated that all health insurance plans must cover “women’s health services” including contraception, sterilization, and abortion-causing medications as part of the Patient Protection and Affordable Care Act (PPACA). Up to this time, Franciscan University has specifically excluded these services and products from its student health insurance policy, and we will not participate in a plan that requires us to violate the consistent teachings of the Catholic Church on the sacredness of human life.

Additionally, the PPACA increased the mandated maximum coverage amount for student policies to $100,000 for the 2012-13 school year, which would effectively double your premium cost for the policy in fall 2012, with the expectation of further increases in the future.

It’s strange that the university would cite the contraception mandate as one of its reasons for dropping student health coverage now. First, the mandate doesn’t kick in until August 2013. And second, there’s a good chance the school will qualify for an exemption. Remember, the Department of Health and Human Services regulations exempt religious employers that primarily employ and serve co-religionists, and whose purpose is the inculcation of its religious values. If any Catholic college fits that bill, it’s Steubenville, whose student body is 95 percent Catholic. How do you think the school’s insistence that it’s not exempt will play at HHS when it applies for an exemption?

So if the contraception mandate doesn’t take effect until 2013, why rush to dump student health coverage?

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Show of hands — who was surprised that conservatives, conservative Catholics, and Catholic conservatives didn’t do a happy dance in response to President Obama’s revision of the contraception-coverage mandate?

First, the U.S. Conference of Catholic Bishops complained that the religious exemption in the original mandate was far too narrow. They pointed out that Catholic institutions — animated by religious belief — that provided service in the areas of health care, education, and charitable work would be made to purchase health coverage that included services inimical to Catholic teaching. In other words, the bishops argued that their religious freedom was being infringed upon. And I agreed. Commonweal agreed. America agreed. The National Catholic Reporter agreed. E. J. Dionne. Mark Shields. Amy Sullivan. The Washington Post. The Economist. We all agreed that the Obama administration had overreached and needed to walk back the policy.

But then we started hearing other noises from the USCCB prolife office. The Hawaii arrangement? Phooey. It would force us to refer for immoral services. Then we heard bells. Taco bells, specifically, when USCCB Associate General Secretary Anthony Picarello floated the theory that the even if a Hawaii-like compromise was reached, the bishops still wouldn’t be satisfied because good Catholic employers, say, ones who owned Taco Bells, who didn’t want to provide contraception coverage — wherever they are — would not be exempt. That’s when some of us started to see the writing on the wall.

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President Obama has announced a major revision of the mandate requiring employers to provide contraception coverage in employee health plans. Under the new rule, senior administration officials confirmed, no religious institution will have to pay for health-insurance plans that include contraception coverage. Not houses of worship, not parish schools, not universities, not hospitals, not charitable organizations.

The outline of the new rule is fairly simple. Nonprofit religious institutions that do not fall within the narrow religious exemption will not have to offer employee health plans that cover contraception. Instead, the employer’s insurance company will have to contact employees directly and offer contraception coverage as a separate policy at no cost. (Religious organizations that primarily employ and serve co-religionists, and whose mission is primarily to inculcate its values, will not be covered by this new arrangement.)

Why would insurers agree to provide contraception services for free? Because, actuarially, it makes financial sense. The average pregnancy costs roughly $12,000. Enrollees who use contraception are cheaper to cover.

The revised ruling seems to have satisfied both Sr. Carol Keehan, president of the Catholic Health Association, who had criticized the original ruling, and Cecile Richards, president of Planned Parenthood, both of whom made statements praising the revised policy.

Given that religious institutions will not have to pay for policies that include contraception, and they there is no requirement that they refer employees for such services, the new policy directly addresses the legitimate objections raised by the U.S. Conference of Catholic Bishops.

We’ll see. More details as they come throughout the day.

Updates: USCCB press release:

“While there may be an openness to respond to some of our concerns, we reserve judgment on the details until we have them,” said Cardinal-designate Timothy Dolan, president of USCCB.

“The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals,” he said.

“Today’s decision to revise how individuals obtain services that are morally objectionable to religious entities and people of faith is a first step in the right direction,” Cardinal-designate Dolan said. “We hope to work with the Administration to guarantee that Americans’ consciences and our religious freedom are not harmed by these regulations.”

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On Friday, the U.S. Conference of Catholic Bishops issued a sharp response to Thursday’s White House blog post purporting to clear up any confusion about how the contraception-coverage mandate will affect religious institutions. The USCCB’s press release goes through the White House blog post point by point, clarifying a couple of important issues, but obfuscating several others by employing a touch of the worst-case-scenarioism that fueled the bishops’ opposition to the Affordable Care Act. Let’s have a look:

Claim: “Churches are exempt from the new rules: Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception.”

Response: This is not entirely true. To be eligible, even churches and houses of worship must show the government that they hire and serve primarily people of their own faith and have the inculcation of religious values as their purpose. Some churches may have service to the broader community as a major focus, for example, by providing direct service to the poor regardless of faith. Such churches would be denied an exemption precisely because their service to the common good is so great. More importantly,the vast array of other religious organizations – schools, hospitals, universities, charitable institutions – will clearly not be exempt.

Does the USCCB really expect readers to believe that parishes won’t be exempt? That, say, providing meals to the hungry — even as a “major focus” — would distract HHS from the fact that the primary function of a Catholic parish is to serve as a community of worship? That HHS would fail to notice that parishes are not for profit, that they primarily employ and primarily serve co-religionists, and that they exist to inculcate Catholic beliefs and values — in other words, that they meet all four (far too restrictive) conditions to qualify for an exemption from the contraception-coverage mandate?  Read the rest of this entry »

In a letter to the Catholics of the Diocese of Phoenix, Bishop Thomas Olmsted promises not to obey the “unjust law” requiring certain Catholic institutions to include contraception coverage in their employee health-care plans. “Unless the rule is overturned,” Olmsted writes, “we Catholics will be compelled either to violate our consciences, or to drop health coverage for our employees (and suffer penalties for doing so). The administration’s sole concession was to give our institutions one year to comply.” Olmsted closes by calling on Catholics to “commit ourselves to prayer and fasting that wisdom and justice may prevail” — and to contact their elected representatives “in support of legislation that would reverse the administration’s decision.” (Read the whole letter here.)

Update: The letter, according to USCCB spokeswoman Sr. Mary Ann Walsh, is part of a coordinated effort to inform Catholics about the bishops’ opposition to the mandate. The bishops conference “provided a template [letter],” Walsh told me, “at the request of several bishops.” (Of course, each bishop is free to adapt the letter, or not issue one at all.) Is it the policy of the USCCB to engage in civil disobedience when the contraception mandate goes into effect next year? “At present, no decision on strategy has been reached,” Walsh said.

Olmsted fails to mention that some Catholic institutions are exempt from the mandate — the parishes where his letter will be read, for example. He also asserts that the HHS ruling forces Catholic organizations to pay for “abortion-inducing drugs” — that is, the so-called morning-after pill. That talking point has been made by several critics of the ruling, including Archbishop Dolan, who calls them “abortion drugs.” Is it true? Do morning-after pills really cause abortions? As William Saletan and Ross Douthat have pointed out, while Plan B could theoretically cause an abortion, there is no evidence that it does (here’s one study showing it does not).

This debate isn’t going to get any easier. But it might get less confusing if those involved lowered the rhetorical heat in favor of dealing in actual facts.

Update: Bishop Jenky of Peoria gets into the act. And Archbishop Aymond of New Orleans offers his more measured response. And Bishop Zubik of Pittsburgh offers his less measured response. And Bishop Sheehan of Santa Fe weighs in, sounding a lot like Olmsted (almost word for word), and revealing that Archbishop Dolan has asked “all bishops to address this issue locally.”

In our January 13 editorial, we criticized a ruling from the Department of Health and Human Services that would require all employers to include “contraception and sterilization coverage in their health-insurance plans, including those provided to employees of religious institutions.” Only religious organizations that primarily employ and serve co-religionists, and whose mission is to inculcate its values, according to the “interim final rule,” could be exempt from the mandate. The U.S. Conference of Catholic Bishops, we wrote,

argues that compelling the church to pay for plans that cover services the church has long held to be immoral violates the religious-freedom guarantee of the First Amendment. Catholic hospitals, universities, and social-service agencies see their mission as caring for people of all faiths or none, and they employ many non-Catholics. Given this understanding of mission, inevitably there will be a degree of entanglement between any large religious institution and the modern state. That should not be an excuse, however, for imposing secular values on more traditional religious communities.

So, we concluded, President Obama ought to expand the religious exemption to include organizations like universities and hospitals. Apparently he was not persuaded. (Bear with me, this is going to be a long post.)

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