Most critics of the HHS contraception mandate have said the controversy is about religious liberty, not contraception. Some of the same critics have said that the question is not whether Catholics could comply with the mandate in good conscience if they had to, but whether the government ought to force them to comply with it in the first place. But these two claims are logically incompatible with each other.

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E. J. Dionne Jr. has some advice for Cardinal-designate Dolan: Apologize to Sr. Carol Keehan, president of the Catholic Health Association. Why? Because earlier this week Dolan suggested that she endorsed President Obama’s proposed revision to the contraception mandate because, as Dionne puts it, “she’s in it for the money that might flow to Catholic hospitals.”

“She’s in a bind,” the cardinal-designate said of Sister Carol. “When she’s talking to (HHS Secretary Kathleen) Sebelius and the president of the United States, in some ways, these are people who are signing the checks for a good chunk of stuff that goes on in Catholic hospitals. It’s tough for her to stand firm. Understandably, she’s trying to make sure that anything possible, any compromise possible, that would allow the magnificent work of Catholic health care to continue, she’s probably going to be innately more open to than we would.”

Apparently it doesn’t matter that Keehan was one of the first to criticize the original mandate. Now that she’s expressed approval for the new framework (and, to be sure, it’s not unreserved), we can discern her true motive: money. Back to Dionne:

Why shouldn’t Sister Carol have spoken out immediately in support of the compromise? The Bishops certainly did not complain when she spoke out immediately against the original rule. Does that mean you only have to clear statements when they are supportive of Obama? Second, Archbishop Dolan, who may have thought he was speaking sympathetically of Sister Carol and her role, is implying that she is somehow intimidated by the fact that she is dealing with “people who are signing the checks for a good chunk of stuff that goes on in Catholic hospitals.” This does not offer her the basic respect of assuming that she is speaking from her conscience.

And then there is that condescending, “It’s tough for her to stand firm.” Don’t the Bishops have enough problems already with women who see them as unresponsive to their concerns without their leader saying something like this about a nun who has spent her whole life serving the sick and the needy?

Bishops may be feeling lingering resentment over Keehan’s disagreement with their interpretation of the Affordable Care Act. But questioning her motives was a cheap shot.

The question of how to reconcile “self-insured” religious institutions with the contraception coverage mandate has been something of an adjunct to the entire brouhaha, but it is a difficult problem and may emerge as a real stumbling block.

A New York Times business story today explores and explains the issue very well:

Employers that self-insure provide health insurance directly to employees, paying the health care claims of their workers. Large employers often choose to self-insure because they can spread the risk across hundreds or thousands of workers. The option is often more economical and can allow an organization to tailor its plan to the specific needs of its employees. Many such employers contract with an insurance company to administer the plan.

Nationwide, 60 percent of workers with health insurance were covered by a self-funded plan in 2011, according to the Kaiser Family Foundation’s annual survey of employer health benefits. Among large employers, the number is even higher. Eighty-two percent of covered workers at companies of more than 200 employees had self-funded plans.

Insurance industry experts and Catholic groups said they did not know how many religiously affiliated organizations self-insure, but they said the number was likely to mirror the national trend. Many of the organizations are large employers, including hospital systems and universities.

One proposal I’ve heard would be to grandfather in self-insured religious organizations. That doesn’t sound very satisfying, or just, if you are a granddaughter organization. Exempting self-insured religious institutions entirely might work, and actually be a back door into the kind of de facto religious exemption the bishops wanted.

Those with actual knowledge of these topics are invited to comment…

Cardinal-designate Dolan on the revised contraception regulations proposed by President Obama on Friday:

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.

Fr. John Jenkins, president of the University of Notre Dame:

The widespread concerns expressed by Catholics and people from other faiths have led today to a welcome step toward recognizing the freedom of religious institutions to abide by the principles that define their respective missions.

Fr. Larry Snyder, president of Catholic Charities USA, on Saturday:

We are hopeful that this is a step in the right direction and are committed to continuing our work to ensure that our religious institutions will continue to be granted the freedom to remain faithful to our beliefs, while also being committed to providing access to quality healthcare for our 70,000 employees and their families across the country.

Fr. Larry Snyder, on Friday:

This compromise enables Catholic Charities USA to not only continue to provide access to quality healthcare to its 70,000 employees and families across the country of many different faiths and backgrounds, but also guarantees the continued delivery of vital services to the more than 10 million people living in need across the country.

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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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? Read the rest of this entry »

The USCCB may be unified on the contraception mandate, but Catholics aren’t. Here’s a Public Religion Research Institute poll on the mandate. Overall, 58% of Catholics think insurance should cover contraception. Catholic voters believe so at 52%.

The data shows that this is question that cuts differently for different groups: 62% of women and a majority of non-whites support the mandate more strongly than white males. 65% of Millennials approve the mandate, while only 40% of seniors do. As to including schools and hospitals under the mandate, still a majority of Catholics agree with the HHS decision. Among Catholic voters, 45% approve, 52% disapprove, but again, more whites than people of color agree–only 40% of white Catholics approve the mandate, so a large (but unspecified % here) of non-white Catholic voters must approve.

Most do not want the mandate applied to parishes, which, of course, is already an exemption under the law as written.

A few thoughts: Read the rest of this entry »

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 »

I’ve been refraining from commenting on the contraception rule, because, to be honest, I’m puzzled both by the decision to mandate contraception coverage (which strikes me as politically very tone deaf) and by the reaction to it among liberal Catholics.  I’ll leave the political wisdom of the decision to others, but let me explain why I’m a little surprised by the vigor of the reaction to it on the Catholic left.  (And my puzzlement is not merely rooted in my concern about the wisdom of lending credibility to the mostly fatuous “religious freedom” line of attack that religious  conservatives have strategically adopted as their new all-purpose refrain in the culture wars.)

Part of my uncertainty about the merits of this particular controversy is due to my own ambivalence on the question of religious exemptions generally.  In this case, my confusion revolves around the difficulty I have in understanding the boundaries of appropriate demands for religious exemptions when it comes to moral claims like the Catholic hierarchy’s opposition to contraception (or, more accurately, to being compelled, if they choose to employ or provide services to non-Catholics and to provide them with health insurance, to pay for health insurance that covers contraception, which the employee may or may not choose to use).  A couple of clarifications.  First, for the purposes of this post, I’m distinguishing “moral” claims about how one ought to act in day-to-day life from claims related to ritual obligations.  Not all groups would recognize that distinction, but I don’t tend to think of Catholics as being such a group.  Second, I’m talking about the entitlement to an exemption here primarily in normative, and not in positive legal, terms.

My main question is what it is that properly qualifies a moral claim as “religious” such that the person who holds it is arguably entitled (on grounds of religious freedom) to some kind of exemption from a legal mandate to act otherwise.  For reasons I’ll explain, I think this is a particularly challenging line for Catholics to draw because of our tendency to approach moral issues in terms of natural reason.  But the uniformity of Catholic condemnation of the Obama administration’s decision makes me feel like I’m missing something.

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There’s been a lot of it this week. A couple of selections:

First, Bryan Cones tries to suss out which Catholic institutions will have to include contraception coverage in their employee health plans. You’ll recall that not-for-profit religious institutions that employ and serve primarily co-religionists, whose mission is to inculcate its values, and are not-for-profits, are exempt. So, Bryan argues, when it comes to the Catholic Church, its parishes, parish schools, diocesan offices directly under the bishop’s authority (like the newspaper), religious congregations and agencies they directly supervise (like the Jesuits and America magazine), and Catholic high schools should receive exemptions from the mandate. What about Catholic Charities? Bryan writes:

Most (maybe all?) Catholic Charities agencies are separately incorporated in dioceses. So it’s “Catholic Charities of the Archdiocese of Chicago.” But — and this is an important but — most Catholic Charities agencies are not part of the diocesan legal structure. In other words, Catholic Charities is a separately incorporated social service agency connected to the local church “aspirationally” but not directly funded by it necessarily. In fact most of Catholic Charities budget comes from public sources (state and federal).

Since Catholic Charities doesn’t necessarily primarily employ Catholics or primarily serve them, I suspect they would not qualify for a religious exemption to the HHS rule, but because of their particular connection to the local church, they may have an argument for the exemption. For example, the archbishop of Chicago appoints all the board members of Catholic Charities in this diocese.

That’s an interesting wrinkle, although in the end legal precedents may make it moot. In 2000, Catholic Charities of Sacramento sued the state over a law requiring insurance companies to include contraception coverage in plans with a prescription-drug benefit (obviously that wouldn’t cover sterilization procedures) because it didn’t qualify as a religious employer under the law. The challenge was rebuffed by two lower courts before the U.S. Supreme Court declined to hear the case, as it declined to hear a later suit brought against New York State for a similar law. The Supreme Court’s refusal to hear those cases, along with other decisions upholding narrow religious exemptions for generally applicable laws — including one written by Justice Scalia — have led some to believe the HHS mandate will pass judicial scrutiny. Which doesn’t mean the Obama administration made the right call here, although it may lend some credence to the wild theory that the president is not out to get Catholics.

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The topic came up twice during today’s White House press briefing — first at minute 14:37 and again at minute 25:45 (transcript below):

Q Second topic — the Catholic Church. It was a pretty extraordinary situation on Sunday in parishes all across the country, individual priests were reading letters from their bishops in that particular parish that were pretty much denouncing the Obama administration about these provisions dealing with contraception, Catholic hospitals and whatnot in connection with the Affordable Care Act. I guess my question would be, how does the administration justify having the federal government institute a law that basically forces people to violate their religious beliefs?

MR. CARNEY: Well, that misrepresents actually what the –

Q How so? 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.”

After a lecture Tuesday evening on “Law and the Gospel of Life” at Fordham Law School, I asked New York Archbishop Timothy Dolan about his reaction to President Obama’s decision on the contraception mandate — a decision which seemed to run decidedly counter to the impression Obama had left with the archbishop after their Oval Office meeting last November. From my RNS write-up:

“The president seemed very earnest [in November], he said he considered the protection of conscience sacred, that he didn’t want anything his administration would do to impede the work of the church that he claimed he held in high regard,” Dolan recalled on Tuesday. “So I did leave a little buoyant.”

That optimism ended last Friday, however, when Obama phoned Dolan to tell him that he was not expanding the conscience exemption to include religious institutions — such as Catholic hospitals, universities and social service agencies. In a bid to appease critics like Dolan, the White House gave church organizations an extra year to find a way to comply with the mandate that all health insurance plans provide free contraceptive coverage.

“I had to share with him that I was terribly let down, disappointed and disturbed, and it seemed the news he had given me was difficult to square with the confidence I had felt in November,” Dolan said.

Understandable, I think, given the grief Dolan could now face from bishops who want to take a harder line with the administration.

But not to worry! As my RNS colleague, Lauren Markoe reports, the White House yesterday honored Catholic teachers. All good. Right?

“Irony is the word of the day,” said Sister Mary Ann Walsh, a spokeswoman for the U.S. Conference of Catholic Bishops.

Ouch.

UPDATE: BTW, the nine educators (one of them a student and educator) got shafted as their stories and their cause got swamped by the political controversy. I have a blog post on them over at RNS.

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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Previous posts at dotCommonweal on the HHS decision to change agencies helping the victims of human trafficking showed the usual Catholic fractiousness, but seemed to overlook the due process issues involved.

Sr. Mary Anne Walsh, USCCB spokesperson has tracked down some more information.

“I have been informed that six organizations applied for anti-trafficking grants from HHS’s Office for Refugee Resettlement (ORR). Four scored so low they did not make the cutoff when evaluated by an independent review board. Two applicants scored well. Heartland Human Care Services scored highest and MRS came in second, very close to Heartland, even after losing points for not being willing to refer for contraceptives and abortions. Yet, after finagling by Sharon Parrott, one of three politically-appointed counselors to HHS Secretary Kathleen Sebelius, ORR awarded $4.5 million, spread across Heartland, which earned the award, and United States Committee for Refugees and Immigrants and Tapestri, groups that hadn’t made the grade according to the independent review board.

“HHS denies any hanky-panky. Show me the data.”