When reading Justice Alito's majority opinion in Hobby Lobby alongside Justice Kennedy's concurring opinion, the unifying thread is clear. And the results don't bode well for the pending cases of religious non-profits against the HHS mandate.
A for-profit corproration has been granted its claim under the Religious Freedom Restoration Act (RFRA) only because Kennedy maintains that the government did not use the least restrictive means of providing its compelling interest. From Kennedy (p. 3):
The means the Government chose is the imposition of a direct mandate on the employers in these cases. ... But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. ... The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.
HHS shouldn't distinguish between different religious believers, "when it may treat both equally by offering both of them the same accommodation." Later he repeats that "the mechanism for doing so is already in place." Thus the accommodation of religious non-profits currently on offer is precisely the legal model available for the for-profits (such as Hobby Lobby).Read more
As you've no doubt seen, in a 5-4 decision the Supreme Court decided in favor of Hobby Lobby, which means that the company--along with other similarly structured businesses--will not have to provide its employees with coverage of contraceptives it objects to. Hobby Lobby, joined in its suit by Consetoga Wood Specialties, argued that the Affordable Care Act's contraception mandate violated the Religious Freedom Restoration Act. According to RFRA, in order for the government to impose a potential religious burden on a person, it must be advancing a "compelling governmental interest" and it must use "the least restrictive means" possible. The Court ruled that while providing contraception coverage to employees is a compelling interest, the mandate fails to pass the "least rectrictive means" test.
Instead, the Court held, the government could pay for contraceptives directly. Or--and this pertains to lawsuits brought by religious employeers--it "could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate." The majority continued: "That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests." Perhaps a version of that accommodation will be reworked for businesses like Hobby Lobby.Read more
Dear readers, I'm afraid I owe you an apology. Last week, I criticized members of the media for their coverage of Pope Francis's meeting with President Obama. Before the meeting, some commentators suggested that the pope was planning to confront the president about his support for the contraception mandate and abortion rights. And after the meeting others contrasted the Vatican's press release with Obama's recollections at a press conference. I wrote:
There's nothing perplexing about the differences between a formal Vatican statement and a president's ad libbed remarks to the press. The Vatican's news release was never going to contain revealing language about the pope's emotional response to meeting Obama. It was never going to go on at any length or in any detail about what they discussed. When Benedict XVI met with George W. Bush in 2008, for example, it was, yes, awesome, but the joint statement of the Holy See and the White House didn't exactly describe the visit in florid terms. That's just how these things go.
How mistaken I was. If only I'd waited a couple of days, I would have had my illusions dispelled by George Weigel. He, too, takes issue with pre-meeting speculation, noting that some of it caused "confusion" that was "instructive on several counts." According to Weigel, that shows just how "poorly equipped" most of the media is "to cover the Vatican and its ways." But those ways are right in Weigel's wheelhouse, so he attempts to sort through them for the rookie Vaticanista, beginning where so many of Catholicism's riches lie: symbolism, especially photographic symbolism, particularly photographic symbolism that entails the appearance of popes with other world leaders.
Pope Francis conducted his conversation with President Obama across a desk — a stage-setting exercise on the Vatican’s part that one canny media veteran thought “a tad aggressive” and another observer said resembled a school principal having a firm talk with a recalcitrant student.
I hadn't considered that. But now that Weigel mentions it, I see his point. How many office-hours have I spent sitting across the desk from a professor who offered firm rebuttals to my half-baked musings on this or that theological problem? Of course, I may have been too arrogant to understand how thoroughly my incompetence had been exposed. But I had no illusions about who had authority and who did not.
See for yourself:
There you have it. On one side: Leader of the world's 1.2 billion Catholics, chosen by the College of Cardinals to serve for the rest of his life, whose approval ratings are the envy of elected officials across the globe. On the other: president of a country of 320 million, half of whom aren't happy with his leadership, and a tiny fraction of whom cares enough to vote. Could Pope Francis have been any clearer? When a pope places a desk between a world leader and himself, it's obvious to anyone who knows anything about the Catholic Church that he is signaling the distance between the two--if not his outright disapproval.
Just look at how Pope John Paul II handled talks with his collaborator--or at least pen pal--Ronald Reagan:Read more
The owners of Hobby Lobby want you to know they take their moral commitments seriously. The Green family's stores don't sell shot glasses. They're closed on Sundays. They don't even allow their trucks to "back-haul" beer shipments. As supporter Ben Domenech pointed out, all those practices "could make them money, but they just bear the costs." The Greens are so serious about their Christian beliefs that they've made a federal case out of their objection to paying insurance premiums that would allow their employees to choose to receive contraceptive products that the Greens deem no different from abortion. "I doubt this is the type of company to spend one dime on this contraception mandate," Domenech wrote. "They will just drop coverage, and pay employees the difference...rather than compromise their beliefs." Except now it looks like they've been doing just that--for quite some time.
At Mother Jones, Molly Redden reports that Hobby Lobby's employee retirement plan "held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions." And Hobby Lobby makes significant matching contributions to the 401(k)--nearly $4 million in 2012, according to the company's 2013 disclosure to the Department of Labor. In other words, Hobby Lobby invests millions in companies that manufacture the very products they want to be exempt from covering in their employee health plans--products they believe cause abortions. As Redden notes, other holdings in Hobby Lobby's mutual funds include companies that make drugs used to induce abortion, drugs administered during abortion procedures, and insurers that cover surgical abortions.
This raises an obvious question: If the Greens are so committed to the belief that they cannot in good conscience pay health-insurance premiums that might result in employees using products that could prevent the implantation of fertilized eggs, then why are they OK with spending millions annually on companies that manufacture drugs that will certainly cause abortions? In other words, as Nick Baumann put it, "either remote cooperation with abortifacients is a red line for you or it's not."Read more
Today Molly Redden at Mother Jones reports that Hobby Lobby holds mutual funds that invest in the manufacturers of the same pharmaceuticals and devices to which the company claims religious objection.
Documents filed with the Department of Labor and dated December 2012—three months after the company's owners filed their lawsuit—show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).
Several of the mutual funds in Hobby Lobby's retirement plan have holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby's health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.
There would have been many ways to avoid this, since "faith-based investing" in funds that avoid "vice" industries or other objectionable companies is a well-known phenomenon with competitive rates of return.
All nine funds—which have assets of $73 million, or three-quarters of the Hobby Lobby retirement plan's total assets—contained holdings that clashed with the Greens' stated religious principles.
Hobby Lobby and the Becket Fund for Religious Liberty, the conservative group that provided Hobby Lobby with legal representation, did not respond to questions about these investments or whether Hobby Lobby has changed its retirement plan.
I would have assumed a company taking the issue of corporate free exercise all the way to the Supreme Court would have looked into this. I doubt it would have affected the case's outcome, but it certainly could have affected the oral arguments by forcing the plaintiff to distinguish degrees of cooperation between providing health insurance options and providing retirement plan options. If these drugs and devices aren't too objectionable to invest in for your employees' retirement plans, a justice might have asked, why are they too objectionable to include as options in your employees' health insurance plans?
Read the details here.
Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.
But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”Read more
And here we are. After years of debate, protest, and litigation about the "HHS mandate" and its levels of exemption, accommodation, or non-accommodation under the Affordable Care Act, Hobby Lobby v. Sebelius and the related Conestoga Wood v. Sebelius are having their day in the Supreme Court.Read more
Matthew J. Franck is not happy with Judge Richard J. Posner. He doesn't like how Posner treated attorney Matthew Kairis during oral arguments at the Seventh Circuit Court last week (which I wrote up here). Kairis represents Notre Dame in its lawsuit challenging the HHS contraception mandate. Franck writes:
In a colloquy with Matthew Kairis...Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.
Of course, Posner has never been known for going easy on lawyers. One law blogger said this was Posner "at his cantankerous best." Others weren't so sure. But whatever you make of Posner's approach, Kairis didn't help matters by talking over the judges and failing to answer their questions directly--or without speechifying. "Any law student who has done a moot court argument in school learns that you don’t interrupt the court, talk while the court is talking, or irritate the judge by trying to sidestep a direct question," wrote lawyer and blogger Bill Wilson.
Franck's displeasure isn't limited to Posner's attitude. No, he thinks Posner has missed entirely the point of Notre Dame's complaint. Actually, it's worse than that. Franck believes he's identified "Posner's inability to perceive what's at stake in this case" (my emphasis). But judging from Franck's post, it's not clear that he has a terribly firm grasp of the issues in play.Read more
Last month, the University of Notre Dame announced that it would comply with Obamacare's contraception mandate, after the school's legal challenges failed. "Pursuant to the Affordable Care Act," a university statement explained, "our third-party administrator is required to notify plan participants of coverage provided under its contraceptives payment program." In other words, university employees would receive contraceptive coverage at no cost to them. But the statement warned that “the program may be terminated once the university's lawsuit on religious-liberty grounds...has worked its way through the courts."
That dismayed some of the university's more conservative critics. Notre Dame law professor Gerard V. Bradley, for example, argued that the university's compliance with the mandate amounted to "facilitating abortions." And Notre Dame historian Wilson Miscamble, CSC, worried that the university's heart wasn't really in the fight. But after listening to Notre Dame counsel's oral arguments last week at the 7th U.S. Court of Appeals, they may have something else to worry about.Read more
When I saw that Russell D. Moore had written a long piece about the so-called Evangelical “retreat” from American politics and culture wars, I was elated.
I am updating a syllabus for a course in religion and American politics, and I hoped this would be the perfect fresh take to round out our coverage of Evangelicalism. Certainly the media-savvy and next-generation Moore, the newish President of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, would help my students understand the movement better than when they read speeches by his predecessor, Richard Land.
In short, I was primed for this essay.
Sadly, it is not assignable. This 4000-word feature, authored by the most prominent official of the Southern Baptists, is composed almost entirely of straw men.Read more
Following a closed-door discussion of the contraception mandate, the U.S. Conference of Catholic Bishops issued an unsigned (but unanimousy passed) "special message" that, for the most part, sounded a familiar tune. So why does religion-journalism watchdog Terry Mattingly think the media dropped the ball by not focusing on this "crucial" statement? Does this look new to you?
Beginning in March 2012, in United for Religious Freedom, we identified three basic problems with the HHS mandate: it establishes a false architecture of religious liberty that excludes our ministries and so reduces freedom of religion to freedom of worship; it compels our ministries to participate in providing employees with abortifacient drugs and devices, sterilization, and contraception, which violates our deeply-held beliefs; and it compels our faithful people in business to act against our teachings, failing to provide them any exemption at all.
This is more or less what the USCCB has been saying since the original, onerous form of the mandate dropped. The bishops restate their plan to pursue relief legislatively (not going anywhere) and judicially (maybe going somewhere). We've heard this before.Read more
Last night the Catholic Health Association issued a memo to its members announcing that the final rules governing the Obama administration's contraception-coverage mandate are workable. In June of last year, CHA strongly criticized--as did the U.S. Conference of Catholic Bishops--the way the Department of Health and Human Services had attempted to accommodate the concerns of religious employers who objected to the mandate. The USCCB is still not (and may never be) happy with the rule. But CHA now believes HHS has addressed their concerns.
“It was important for our members to achieve resolution of this issue in time for them to negotiate their insurance renewals and with the assurance they would not have to contract, provide, pay or refer for contraceptive coverage," Sr. Carol Keehan, president of CHA, told me. "We are pleased that that has been achieved with this accommodation.” From yesterday's memo:
Since the original rule was issued over a year ago, there has been considerable concern raised by many parties including CHA. CHA had two principal concerns. The first was the four-part definition of what constituted a "religious employer." That concern has been eliminated. CHA's second concern was establishing a federal precedent that mandated our members would have to include in their health plans, services they had well-established moral objections to.
HHS has now established an accommodation that will allow our ministries to continue offering health insurance plans for their employees as they have always done.
Given that CHA membership includes only nonprofit hospitals, it's not concerned with for-profit employers who object to the mandate. "We recognize the broader issues will continue to be debated and litigated by others." Still, "Throughout this process, CHA has been in dialogue with the leadership of the bishops conference, the administration, and HHS."
So what do the final rules say?
As CHA explained to its members, the final rules dispatch with the earlier, much-maligned four-part definition of a religious employer as one that is not for profit, primarily serves co-religionists, primarily employs co-religionists, and exists to inculcate religious values. That's been simplified. HHS lifted the new definition from the tax code. Any religious organization that's exempt from filing a Form 990 (which all other nonprofits must file with the IRS every year)--including churches, integrated auxiliary association, and the religious activities of any religious order--is completely exempt from the mandate. That is, they don't have to offer contraception coverage to their employees, and their employees are not eligible to receive it for free outside their employers' health plans.Read more
Somewhat overshadowed by events was the release of a statement from the USCCB on the Supreme Court decision overturning Section 4 of the Voting Rights Act. Bishop Stephen Blaire of Stockton, California, chairman of the bishops’ Committee on Domestic Justice and Human Development, and Bishop Daniel Flores of Brownsville, Texas, chairman of the bishops’ Committee on Cultural Diversity, said:
The recent Supreme Court decision necessitates that Congress act swiftly to assure that the right to vote be protected and afforded to all eligible citizens. We urge policymakers to quickly come together to reaffirm the bipartisan consensus that has long supported the Voting Rights Act and to move forward new legislation that assures modern and effective protections for all voters so that they may exercise their right and moral obligation to participate in political life.
Meanwhile, the Catholic Health Association says today that the current combination of exemptions and accommodations within the HHS’s contraception mandate are sufficient.
Campaign-ish notes: Rick Perry, the longest-serving governor of Texas (I didn’t know either), won’t run for that office again, but is reflecting and, yes, praying, about his plans for the future.Read more
Today's New York Times has a story that ought not to be a story. Well, two, if you count "Guess what, a bunch of the groups the IRS was allegedly improperly targeting really were engaged in political activities that made them ineligible for the tax-exempt status they applied for," because duh. But the one I mean is the one by Sharon Otterman, with the headline "Archdiocese Pays for Health Plan That Covers Birth Control."
[E]ven as Cardinal Dolan insists that requiring some religiously affiliated employers to pay for contraception services would be an unprecedented, and intolerable, government intrusion on religious liberty, the archdiocese he heads has quietly been paying for such coverage, albeit reluctantly and indirectly, for thousands of its unionized employees for over a decade.
The reason I say this shouldn't be a story is that the archdiocese's explanation is legitimate. "We provide the services under protest,” archdiocesan spokesman Joseph Zwilling told the Times.
Mr. Zwilling...said that Cardinal John J. O’Connor and the archdiocese “objected to these services’ being included in the National Benefit Fund’s health insurance plan” when joining the [League of Voluntary Hospitals and Homes] in the 1990s. But the cardinal then decided “there was no other option if the Catholic Church was to continue to provide health care to these union-affiliated employees in the city of New York,” Mr. Zwilling said.
The reason this revelation is a real scoop is not that the bishops, under Dolan's leadership, have protested the Affordable Care Act's contraception mandate, as they were right to do, but that they did so in absolutist, life-or-death terms that ignored the reality of political complexity and denied the possibility of compromise. Remember "Our First, Most Cherished Liberty"? Citing Martin Luther King Jr.'s "Letter from Birmingham Jail," the bishops wrote:
It is a sobering thing to contemplate our government enacting an unjust law. An unjust law cannot be obeyed. In the face of an unjust law, an accommodation is not to be sought, especially by resorting to equivocal words and deceptive practices. If we face today the prospect of unjust laws, then Catholics in America, in solidarity with our fellow citizens, must have the courage not to obey them. No American desires this. No Catholic welcomes it. But if it should fall upon us, we must discharge it as a duty of citizenship and an obligation of faith....
An unjust law is "no law at all." It cannot be obeyed, and therefore one does not seek relief from it, but rather its repeal.
When you talk like that, and then it turns out you've been indirectly providing coverage for contraception, under protest, for a long time, you undermine your own credibility. Your uncompromising moral stance looks like selective outrage -- with an obviously partisan frame.
Our editorial "Bad Decision" offered this advice:
If Catholic institutions must choose between complying with the law or dropping health-insurance coverage for employees, they should comply “under duress,” while working to modify or overturn the law. In this instance, the greater good of providing health insurance for all employees outweighs the “evil” involved in the possible use of contraception by some.
And our follow-up editorial, "Bad Reaction," added:
The fact that many Catholic institutions already comply with state laws requiring contraception coverage makes the USCCB’s extreme demands all the more curious. For Catholic institutions to participate in insurance plans where individuals may decide to use contraception is at most remote cooperation with what the church considers evil. It is implausible for the bishops to insist that the revised mandate compels them to cooperate directly in a sinful activity when even the original mandate did nothing of the kind....
Are the bishops not worried that this initiative will be seen as transparently partisan by much of the public?
If they weren't before, maybe they are now? Let's recall that the Obama administration has come up with a compromise that would provide contraceptive coverage to employees of Catholic institutions while not requiring that coverage to be provided directly by the employer. (Here's Cardinal Dolan's response to that proposal; here's Grant Gallicho's critique of Dolan's take.) It may not be a perfect solution. But is it more compromising than what the Archdiocese of New York (for example) is already doing?
Last Memorial Day, Cardinal Dolan wrote a column for Catholic New York that proposed this solution to the church's troubles with the Obama administration:
All Washington has to do is say, “Any entity that finds these mandates morally objectionable is not coerced to do them,” and leave it there. Don’t get into the red tape in trying to mandate for us how our good works should be defined.
How simple! How constitutional! How American!
I noted in a blog post last year that this "simple" solution seems to ignore the reality of how laws work. It certainly doesn't reflect any familiarity with how health insurance works; in that case, the only way to avoid "getting into the red tape" is to not offer employees any insurance at all. The archdiocese has opted not to do that, as today's Times story reports. And that was a good and morally defensible decision. The only reason it looks scandalous now is that it will be seen in the light of heated speechifying about unprecedented threats, unjust laws, and impossible compromises.
Well, that was quick. Forty-eight hours after the release of "On All of Our Shoulders" -- a critique of Paul Ryan's libertarian tendencies signed by about one hundred fifty Catholic scholars and ministers -- Robert P. George took to the First Things website to denounce it as a partisan "attack" on the congressman from Wisconsin, whose running mate, you may recall, George has endorsed and is advising. So he knows from partisanship. George also knows from courageously defending one's political opponents when they're unfairly criticized. Just ask him:
When my fellow conservatives and Republicans were beating up on President Obama for his you didnt build that remark, representing him as having claimed that business owners didnt build their own businesses, the government did it, I spoke out in defense of the President.... It is both wrong in itself and damaging to the spirit of democracy to misrepresent ones political opponents or interpret their words tendentiously to depict them in the most unfavorable possible light.
Do read his defense of Obama. Keep reading. Did you get to the third paragraph yet? You're looking for the sentence that follows the one with "Obama has a dangerously inflated view of the proper role of government." Find it yet? If you hit "this comment of mine is not intended as a defense of what Obama said, much less of his economic and regulatory policies generally," you've gone too far. Here's what it looks like: "I dont think it is correct to interpret the 'that' in 'you didnt build that' as referring to businesses." Thank goodness George managed to emerge from the avalanche of criticism he doubtless received for that stirring defense, so we could be reminded that the spirit of democracy is besmirched when we misrepresent our political opponent's views or interpret them tendentiously in order to cast them in the worst light. We would all do well to heed that advice. Too bad George doesn't.
Let's count the ways: George all but calls the signatories of "On All of Our Shoulders" liars for claiming that they do not write to oppose Ryans candidacy or to argue there are not legitimate reasons for Catholics to vote for him.
In fact, the statement is a highly tendentious assault on Ryan, presenting him and his positions in the most unfavorable possible light, and insinuating that he is someone who seeks to legitimate forms of social indifference. It is, in short, the discursive version of the infamous Democratic Party television advertisement showing a Ryan-like figure dumping an elderly lady out of her wheelchair over a cliff.
Speaking of tendentious. George is quite fond of referring to critiques of his positions as "assaults" and "attacks." But the statement in question is actually pretty mellow. Indeed, as George notes, the signatories are clear that they are not arguing that Catholics cannot have legitimate reasons for supporting the Romney-Ryan ticket. He just isn't buying it.
You can tell, because when Fordham theologian Charles Camosy, one of the signatories, responded to George in the comment thread, George called the intervention "an effort...to defend [the statement] as truly non-partisan and fair to Ryan, but res ipsa loquitur." That's Latin for "I don't believe you." Why mince words? If George thinks Camosy is lying, he should say so. Surely George didn't exhaust his store of courage defending Obama against those tendentious -- perhaps even partisan -- charges that he denied business-owners had built their own companies. Yet George couldn't be bothered to reply to Camosy in the comment thread on his own First Things piece. No, he hopped over to another outlet, Mirror of Justice, to post his retort -- where he disabled comments. So Camosy can't even respond to George's parting swipe there:
Reading his comment, I could not help but imagine how different the statement would have looked had it exemplified even a modicum of the interpretative charity that Professor Camosy practices in his efforts to depict Peter Singer's thought as sharing vast tracts of common ground with Christian moral teaching. But then, such a statement wouldn't have been of much use to the Obama campaign.
The hermeneutic of charity is something to behold, isn't it? There's a word for the kind of courage it takes for someone who's advising a presidential campaign to accuse another of being a tool of his opponent's. It's not Latin, maybe you'll recognize it: chutzpah. (Read Camosy's reply at the Catholic Moral Theology blog.) George admonishes the authors of "On All of Our Shoulders" for failing to acknowledge that it's highly unlikely that Randian policies will be enacted by a Romney administration. He commends Rick Garnett's "devastating critique," which includes:
The statement, like much of the Ryan is a Randian!! business, overstates significantly the extent to which the policies that are being proposedand certainly the policies that have even a remote chance of being enacted, should Gov. Romney be elected are, in fact, libertarian (let alone Randian).
Where was Garnett and George's concern for the art of the possible when they were darkly warning us about the Freedom of Choice Act? "The Democrats 'programs' and 'approach' with respect to abortion are probably better illustrated by the Freedom of Choice Act, which will certainly become law if Sen. Obama is elected." That was Garnett, writing in August 2008. Four years later, the bill hasn't even gotten out of committee.
George does not grapple with the statement's overriding concern: that individualistic principles are being passed off as compatible with Catholic ones. He devotes one sentence to that issue:
Despite Ryans own very public statements of his points of agreement and significant disagreement with the thought of Ayn Rand, and despite the commendations he has received from the bishops who know him and his work best, Bishop Joseph Morlino of Madison, Wisconsin, and Cardinal Timothy Dolan, Archbishop of New York (formerly of Milwaukee), Ryan is presented as an unreconstructed Randian radical individualist and, as such, a clear opponent of Catholic social teaching.
The signatories do note that for years Paul Ryan has been touting Ayn Rand's social philosophy as a touchstone for his own policy priorities. As recently as 2009, Ryan released this video, where he holds up "the morality of individualism" as "what matters most." After it was pointed out that individualism does not sit well with Catholic teaching on the nature of the human person, he declared that it was really Aquinas who shaped his philosophy. As "On All of Our Shoulders" notes, you'd think such a radical shift in social philosophy would entail a change in policy priorities, but Paul Ryan's remain the same. The signatories don't question Ryan's sincerity, they just want to know what it means for his policies. As Matthew Boudway put it back in May: "The point [of Ryan's budget] is to shrink the government and lower taxes. If this helps the poor, so much the better; if it doesnt, sauve qui peut [every man for himself]." If Ryan is done with the "morality of individualism," how would we know? George doesn't say.
Apparently he'd rather talk about "authentic social teaching," which "begins from an affirmation of":
(a) the inherent and equal dignity and fundamental right to life of every member of the human family, including the child in the womb; (b) the centrality and indispensable social significance of marriage as the conjugal union of husband and wife; and (c) religious freedom and the rights of conscience.
That abortion, gay marriage, and the contraception mandate are the top three issues on George's candidate's "Issues for Catholics" scorecard (.pdf) must be a coincidence. Because it would be strange for a Romney adviser to call this statement "scandalous" for its failure to repeat the candidate's Catholic selling points, or for a Romney endorser to complain that the statement presents itself as nonpartisan, especially when that adviser turns around and offers a tendentious reading of Obama's record by calling it more Randian than anything Paul Ryan has proposed.Ayn Rand was "proabortion," George writes, just like Obama and Biden, who "undermined the right to life of the child in the womb in every way they possibly can." Well, maybe not every way. The Obama administration missed a chance to promote abortion when it learned that New Mexico and Pennsylvania were poised to use federal Affordable Care Act money to fund elective abortions, and Secretary of Health and Human Services Kathleen Sebelius blocked them. At the time, the chairman of the USCCB prolife committee praised the move.
George continues, given her views on sexual morality, Rand would be pleased as punch with the fact that Obama and Biden "have committed themselves to abolishing in law the conjugal understanding of marriage as the union of husband and wife and replacing it with a conception of marriage as an intimate relationship of two persons of the same or opposite sexes." This might surprise gay-marriage advocates who deride Obama's actual position -- that states should decide the issue -- as "marriage-equality federalism." (Incidentally, that's been Dick Cheney's view since 2004.) Neither Obama nor Biden have called for "abolishing in law" the traditional understanding of marriage. Indeed, they have proposed no laws.
And finally, the contraception mandate: George doesn't say how this would thrill Ayn Rand, but he does mention that the Obama administration wants to force Catholic employers "to provide health insurance coverage that includes abortion-inducing drugs, sterilizations, and contraceptives." Nor does he differentiate between actual abortion drugs (RU-486) and emergency contraception, just as he fails to note that the science on the abortifacient properties of one such drug is unsettled at best. Not a peep about the Obama administration's proposed accommodation, which would allow religious employers to contract for health coverage without contraception (that would be offered separately by insurance companies at no cost to employees). No, to acknowledge that might lend credence to the idea that Obama does not "oppose religious freedom for Catholic institutions," as Romney's "Issues for Catholics" scorecard has it.
To be sure, there's nothing strange about a Catholic objecting to the president's views on abortion, gay marriage, and contraception coverage -- Commonweal has published critiques of all those policies. But if you want to position yourself as a fair-minded critic, even a fair-minded partisan, then you've got to work hard not to interpret your opponents' "words tendentiously to depict them in the most unfavorable possible light." Failing to do so might not "damage the spirit of democracy," but it will damage the credibility of your claims.
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.
In order to qualify for safe harbor, a religious employer must not cover -- or have recently covered -- services it now wants to be exempt from covering. Duncan didn't explain this on the call, but in paragraph 120 of Wheaton's legal complaint (.pdf), you find this: "They currently provide coverage for certain contraceptives and inadvertently provided coverage for a short period after February 10, 2012, for other now-excluded contraceptives, making it impossible for Wheaton to make the required Safe Harbor certification." Sounds like Wheaton was paying for emergency-contraception coverage for its employees -- for how short a period it doesn't say.
I've followed up with Wheaton (which has outsourced media inquiries about this to the Becket Fund) in order to verify that, but haven't gotten an answer. Through its attorney, Wheaton refused to provide a copy of its employee health plans.
After Duncan cited those technical reasons on the conference call, President Ryken weighed in: "My understanding is that it would be effective for us January 1, 2013. I'll welcome my first freshman in two weeks. We're obviously needing to understand how we're going to provide insurance coverage already this academic year." Does that mean Wheaton might not cover students if this isn't resolved? "We will do everything possible to continue to provide coverage for faculty, staff, and students. What I communicated to our campus community today was that it was my hope to be able to continue to provide it, but i also told them that we would be facing these punitive fines."
The good news for Ryken is that because Wheaton apparently self-funds its student coverage it's completely exempt from the preventive-services mandate. (I say "apparently" because the Becket Fund lawyer who responded to queries I sent Wheaton's media-relations office did not provide a direct answer to the question, "Is the student plan self-funded?")
The document making it clear that self-funded student plans are exempt was entered into the federal register in March. So why, nearly five months later, is Wheaton's president telling reporters that "the mandate forces us to provide abortion-inducing drugs through the insurance coverage that we provide to our faculty, students, and staff"?
On the call, Ryken was asked what he made of recent reporting that emergency contraception does not prevent implantation. "The secretary of Health and Human Services has been clear in her statements that some of the drugs covered in this mandate are drugs that prevent the implantation of a fertilized embryo. We agree with the secretary in her understanding of the effect of these drugs, and regard morning-after and week-after pills as abortifacient drugs. If there were any doubt about that we would still want to err on the side of moral caution." Even if one discounts for the preponderance of evidence against the claim that Plan B prevents implantation (the science on the week-after pill [brand name ella] is less settled), if the university had been serious about erring on the side of moral caution, then why does its legal complaint suggest that it had been "inadvertently" paying for coverage of drugs it calls "abortion-inducing"?
Which brings us to the question of moral reasoning. During the conference call, Ryken rejected the Obama administration's proposed accommodation, which would exempt religious employers from contracting and paying for contraception coverage, while allowing employees to receive such coverage separately from the insurer.
"Any accommodation that still involves us in connection with an insurer that provides abortion services still, though indirectly, nevertheless implicates us morally in that action," Ryken said. In other words, no categories of cooperation with evil for Wheaton. Even indirect involvement with an abortion-providing insurer is morally illicit. When Ryken was asked who insures Wheaton's employees, he couldn't say. But the college's website does. It's Blue Cross/Blue Shield of Illinois. And while Blue Cross pays for emergency contraception for thousands of enrollees who don't work for Wheaton, it also covers an actual abortion drug -- Mifeprex -- which, the drug maker's website points out, Blue Cross covers "to the same extent as surgical abortions."
On March 2, Cardinal Timothy Dolan, president of the U.S. Conference of Catholic Bishops, released a letter suggesting that the negotiations between the White House and the USCCB over the conteception mandate had stalled because of the administration's intransigence -- especially on the issues of self-funded health plans and the definition of "religious employer" in the HHS regulations.
A few days later, an administration source shot back, claiming that the White House had put nearly everything on the table for negotiation "only to be rebuffed" by the USCCB.On March 14, the Administrative Committee of the U.S. Conference of Catholic Bishops released a statement repeating their opposition to the contraception-coverage mandate -- and laced with tendentious claims. Committee members again complained that the "now-finalized rule of the U.S. Department of Health and Human Services...would force virtually all private health plans nationwide to provide coverage of sterilization and contraception -- including abortifacient drugs -- subject to an exemption for 'religious employers' that is arbitrarily narrow, and to an unspecified and dubious future 'accommodation' for other religious organizations that are denied the exemption." (For more on how the chairman of the USCCB Ad Hoc Committee on Religious Freedom used to think about one of those morning-after pills, click here.)
Two days later, on March 16, HHS released an "Advance Notice of Proposed Rulemaking" -- stay caffeinated if you're going to try to read the whole thing; the regulatory patois is brutal. The document addresses most of the bishops' concerns, and requests public comment on some of the thornier regulatory problems. (Read Commonweal's editorial on the bishops' statement and the HHS document here.) From the beginning, the bishops have criticized the method HHS used to determine which religious employers would be exempt from providing contraception coverage to employees. You'll recall that the original ruling fully exempts only religious employers that are nonprofits, that employ and serve primarily co-religionists, and whose primary purpose is the inculcation of religious values. Obviously that doesn't cover certain Catholic ministries, such as hospitals and colleges. The Administrative Committee's letter darkly warns that the HHS definition of religious employer "will spread throughout federal law, weakening its healthy tradition of generous respect for religious freedom and diversity."
Not according to the HHS document:
The Departments emphasize that this religious exemption is intended solely for purposes of the contraceptive coverage requirement pursuant to section 2713 of the PHS Act and the companion provisions of ERISA and the Code. Whether an employer is designated as religious for these purposes is not intended as a judgment about the mission, sincerity, or commitment of the employer, and the use of such designation is limited to defining the class that qualifies for this specific exemption. The designation will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.
What about the way the exemption definition will function once it goes into full effect in August 2013? Last month the USCCB put out a press release that claimed some Catholic parishes would not be exempt: "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." Of course that was a stretch, but given the complex relationship of Catholic institutions to their host dioceses, how will the administration determine which organizations are exempt? Back to the March 16 HHS document:
In addition, we note that this exemption is available to religious employers in a variety of arrangements. For example, a Catholic elementary school may be a distinct common-law employer from the Catholic diocese with which it is affiliated. If the schools employees receive health coverage through a plan established or maintained by the school, and the school meets the definition of a religious employer in the final regulations, then the religious employer exemption applies. If, instead, the same school provides health coverage for its employees through the same plan under which the diocese provides coverage for its employees, and the diocese is exempt from the requirement to cover contraceptive services, then neither the diocese nor the school is required to offer contraceptive coverage to its employees.
In other words, even though the Obama administration seems unwilling to budge on the rule's definition of "religious employer," the full exemption may cover more organizations than some of the mandate's critics initially thought. Employees of those institutions will not have access to free contraception coverage provided separately by insurers, as the accommodation proposes for religious hospitals, colleges, and charities.
Another major point of contention has been how self-funded health plans will fit into the HHS exemption structure. When an institution funds its own health plans, it doesn't pay premiums to an insurance company. It pays an insurance company a fee to administer the plan. If, say, Cigna is contracted to handle the plan, employees get an insurance card from the company. When employees receive medical services, Cigna forwards the bills to the employer, which in turn reimburses the insurer according to an agreed-upon price structure. When states began requiring insurance companies to cover contraception with their prescription drug benefits, religious institutions could avoid providing such coverage by self-funding their health plans -- because self-funded health plans are subject to federal, not state, regulation. That won't be an option once the HHS mandate kicks in, which is why the accommodation is a good idea.
But even if the bishops were to agree that the accommodation allows Catholic institutions to avoid illicit remote material cooperation with evil, because insurance companies would be responsible for providing separate contraception coverage to employees, when it comes to self-funded plans, almost all the money that pays for medical care comes from the employer. The cooperation would be significantly less remote.
The HHS document proposes several byzantine arrangements all designed to shift the provision of contraception coverage from self-insured religious groups to third parties, from the insurance companies that administer those plans to the government itself. The document does not finalize any of those arrangements, but requests public comment on those ideas and others for a period of ninety days. And in a separate document,HHS issued a final rule that fully exempts self-funded student plans from the contraception mandate.The bishops won't get the Taco Bell exemption. But the administration has shown that it's serious about working through the religious-liberty issues identified by the bishops. This is not necessarily a political win for Obama -- Democrats are raising money on the issue. But it's the right thing to do. Maybe someone at the USCCB will notice.