…starting on our homepage with “A Good Start,” by Charles R. Morris:
There is no reason to expect it to go smoothly. It took a year to sort through the mass confusion surrounding George W. Bush’s Medicare Part D program, which was a far simpler challenge, since all the eligible patients were already known to Medicare. The ACA, working through an array of exchanges run by the states and the federal government, must create new databases of individuals and businesses, apply new eligibility rules, qualify hundreds of benefit plans, and match eligible recipients and plans. Plans and rates will differ substantially from state to state. …
But the overall prognosis for the law’s success is still bright. The states that have embraced the law seem determined to make a good show of it. Their exchanges will be ready to open on the first of the year, and though there will certainly be glitches, most of them should be operating fairly smoothly by the summer. Even better, the first exchange insurance prices are lower than even friendly analysts expected. …
The performance of the federal exchanges may well lag that of the participating states, since hardly anyone imagined that almost two-thirds of states would opt out. But the feds will catch up—among other things they will mostly be able to apply the same basic data systems in every state. Over time, Republicans may rue the boost that the opt-out red states gave to the creation of a national health-care system.
Ezra Klein at the Washington Post on how demand for Obamacare is what really troubles those who would defund it:
It was strange and slightly perverse to watch Obamacare open and be flooded with people desperate to sign up for health insurance even as the government closed because Republicans wanted the law ripped out, or at least delayed. In some quarters, Republicans mocked Obamacare’s technical problems, but the jokes were wan: Overwhelming demand for the law is not a boon to the GOP’s position.
This is, of course, precisely what Republicans were scared of: That a law they loathe would end up being enthusiastically embraced by millions of Americans -- and thus proving permanent. It’s Obamacare’s possible success, not its promised failures, that unnerve the GOP.
Eduardo Porter in the Business section of today’s New York Times sees it similarly:
[T]he argument that half the Republican Party has simply lost its mind has to be an unsatisfactory answer, especially considering the sophistication of some of the deep-pocketed backers of the Tea Party insurgency.
There is a plausible alternative to irrationality. Flawed though it may turn out to be, Obamacare …could fundamentally change the relationship between working Americans and their government. This could pose an existential threat to the small-government credo that has defined the G.O.P. for four decades…. [T]he law has many provisions that are likely to improve life for millions of Americans, including a big portion of what we know as the working middle class.
As it turns out, the core Tea Party demographic — working white men between the ages of 45 and 64 — would do fairly well under the law….
To conservative Republicans, losing a large slice of the middle class to the ranks of the Democratic Party could justify extreme measures.
And extreme (and slightly garbled) rhetoric.Read more
Now on the website: At the end of Day 1 of the government shutdown, E. J. Dionne Jr. writes on the real goal of the right wing:
Can anyone now doubt who is responsible for Washington’s dysfunction? The Republican right still does not accept the legitimacy of Barack Obama’s presidency. This is why much of the government shut down.
The issue here is not that Congress failed to reach a “compromise.” The Democrats already have compromised, lopping about $70 billion off their budget proposal, to the dismay of many liberals. That was meaningless to a tea party crowd that seems to care not a whit about the deficit, despite its fulsome talk. It will be satisfied only if Congress denies health care coverage to about 25 million Americans, which is what “repealing Obamacare” really means.
It needs to be said over and over as long as this stupid and artificial crisis brewed by the tea party continues: Financing the government in a normal way and avoiding a shutdown should not be seen as a “concession.” Making sure the government pays its debt is not a “concession.” It’s what we expect from a well-functioning constitutional system. It’s what we expect from decent stewards of our great experiment. The extremists who have taken over the House do not believe in a normal, constitutional system. They believe only in power.
The Affordable Care Act is more popular among Republicans than Obamacare, by a 22% to 14% margin, and among the general population, 39% to 34%, according to a Fox News poll.
According to Pew, of the 53% of Americans surveyed who disapprove of the ACA, 27% want Congress to make it work as well as possible, while 23% want Congress to “do what they can to make it fail.” Among the Tea Party, 64% want their representatives to work actively at making it fail. “The Tea Party wing of the GOP is dead set on sabotaging Obamacare above all else,” writes Kevin Drum at Mother Jones.
Jonathan Chait looks at that effort, and gives details on the status of reforms:
Health-care inflation since 2011 has fallen to its lowest level in half a century. The Congressional Budget Office estimates of Obamacare’s costs, widely derided at the time of its passage as too optimistic, have thus far proven too pessimistic. The agency has already cut $600 billion off the expected ten-year spending total for Medicare and Medicaid. If the reforms continue to bear fruit, costs will come in even lower.
And health experts increasingly expect the reforms will bear fruit. “The ongoing slowdown in the health-care growth rate defies historical post-recession patterns and is likely to be sustained,” concluded PriceWaterhouse-Coopers in June. “It appears that the reforms will stick and health-care exchanges and other policies will bring competitive pressure to markets,” says Randall Ellis, a professor of health-care economics. “Although the proof for this point of view is not yet definitive,” reports the Health Affairs blog, “the depth and breadth of change suggest that significant transformation in the nation’s delivery system is under way.” Among health-care wonks, this is no longer a controversial assertion: The evidence thus far suggests Obamacare’s cost reforms are a staggering success.
The Wall St. Journal says the defunding drive is a political loser:
Mr. Obama is never, ever going to unwind his signature legacy project of national health care. Ideology aside, it would end his Presidency politically. And if Republicans insist that any spending bill must defund ObamaCare, then a showdown is inevitable that shuts down much of the government. Republicans will claim that Democrats are the ones shutting it down to preserve ObamaCare. Voters may see it differently given the media's liberal sympathies and because the repeal-or-bust crowd provoked the confrontation. …
We've often supported backbenchers who want to push GOP leaders in a better policy direction, most recently on the farm bill. But it's something else entirely to sabotage any plan with a chance of succeeding and pretend to have "leverage" that exists only in the world of townhall applause lines and fundraising letters.
The Congressional Budget Office warns of unsustainable debt levels by 2023, due mainly to the rising costs of Medicaid, Medicare, and Social Security. In response to the report, Paul Ryan, leader of the House Budget Committee, suggests eliminating Obamacare.
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
What’s to be made of the news that the IRS didn’t limit its screening of organizations applying for not-for-profit status to right-wing groups? For one thing, it may take some of the starch out of contentions by Peggy Noonan and others that the Obama administration specifically targeted political opponents or is now blighted by something worse than a mere “cancer on the presidency.” That the IRS also had on its list of watchwords such terms as “progressive” and “occupy”—and that pro-Obamacare advocacy groups were also swept up in the net—doesn’t quite hint at the vast left-wing conspiracy some seemed to be longing for.
On the other hand, that the IRS’s screening effort was apparently much broader than originally thought only adds fuel to the furor over government intrusiveness. Will tea party patriots now find common ground with ACA advocates? Or open-source software groups and proponents of electronic healthcare data exchange with those whose applications included the words “occupied territory advocacy” and "medical marijuana"? They were also singled out for secondary evaluation.
Congressional Democrats want to know why initial reports suggested that only right-wing groups were targeted, which (falsely, it would appear) imputed political motives to the IRS’s activities. Other groups want to know why there was a screening protocol at all—no matter how narrow, broad, prejudicial, nonpartisan, or as focused on software developers it was. Yes, “was”: On Monday, acting IRS commissioner Daniel I. Werfel formally ordered an immediate end to the screening effort.
The more we learn about the implementation of the Affordable Care Act (called “Obamacare” by the popular press), the more we realize that the act ignores the core principles of solidarity and subsidiarity that make organizations and systems function effectively. Initiatives that reject these principles are rarely successful. Consequently, I don’t hold much hope that Obamacare will ultimately accomplish its goals of improving access and reducing costs.
Brian Engelland, Ph.D. (Solidarity, Subsidiarity, and the Problem of Healthcare)
Professor Engelland’s criticism of Obamacare is more interesting than the run of the mill despite the fact that he so completely mischaracterizes Obamacare that one is hard put to believe he is acting in good faith. (No, Obamacare is not a system of price and cost controls and no it does not reorganize the entire health care system and no the government is not reasoning that it can dictate what medical procedures are covered and how much reimbursement is paid out.) Still, his argument is such that his own substantive criticisms of Obamacare are basically irrelevant. All that really matters to him in terms of his main argument is that Obamacare is a government program.
As Catholics we need to take seriously any accusation that a major social program violates the principles of solidarity and subsidiarity. Our first question should be how does Engelland define these? He gives us a hint in the first few sentences quoted above when he says that Obamacare “ignores the core principles of solidarity and subsidiarity that make organizations and systems function effectively”. To him, the principles are functions that promote efficacy. He is in dangerous territory, because stated this way, the “principles” become part of the group of functions of the system or organization and the goal of the organization becomes the primary thing to which the functions are subordinated. Let’s see if this is what Engelland really means.Read more
It took me about three weeks to get from my strangely embarrassed general practitioner's admission that I have gotten some bad numbers on my prostate cancer blood test to the Big Day when I got the definitive biopsy results.
“Don’t worry too much” the urologist had told me during the biopsy as he punched another needle into my prostate. (It made a sound like someone pulling the trigger on an unloaded gun). “With your blood test numbers you have about a thirty percent chance of actually having it.” I found these words reassuring and tried very hard to only be thirty percent terrified for the next ten days.
On the Big Day the urologist came into the little room where my wife and I were waiting and he was brimming with optimism. (But why not? He is a surgeon, so even if the news was bad I’d still have an opportunity to get surgery).
“Now let’s see. We did 12 biopsy cores and 11 came back entirely benign. But the 12th one had cancer.”
Seeing the shocked look on my face he hastened to reassure me.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.
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!
When Gallicho writes that such an employer may be one of the funding sources, he gives the game away. He is one inch away from understanding the point he himself is trying to make, about the fungibility of money. All the employers paying premiums to one insurance provider are paying, in common, for the contraception coverage of all their employees. Another way to say it that is equally true is that each and every one of them is paying for contraception coverage, in a common risk pool (if that term applies accurately to a choice that has very little to do with risk), from which all their employees contraception is funded. All are paying; each is paying; if EWTN is one of the all, it is one of the each. It will be paying for contraception.
Is it true? Have the hurricane-force gusts of Winter Storm Franck blown my argument apart? Not really, because there's paying for something and then there's paying for something. When you buy a banana, you indicate your interest by presenting it at your grocer's cash register. The clerk tells you how much it costs, you hand him the money, and off you go with your proof-of-God fruit. But what will that grocer do with your money? Will he use it to pay his divorce lawyer? To bust the cashiers union? To bring in the store's next shipment of condoms? If so, can it be said that you have funded those activities? Remotely, yes. But did you ask for those things when you brought that banana to the cashier? Of course not. Would those events have transpired if you had gotten the banana from another vendor? In all likelihood, yes. So even though your money may have facilitated the grocer's immoral actions, you're not culpable. You didn't patronize that grocer because you wanted to support those actions. You couldn't say for sure whether he'd use your money to further his immoral aims. You patronized him because you were hungry. No harm, no foul.
So it goes with the contraception mandate. (Refresher: According to the latest proposal, religiously affiliated employers like hospitals, colleges, and charities, will be able to contract for employee insurance policies that exclude contraception coverage. Their employees will, in turn, receive an offer of free contraception coverage from the insurer.) Franck asserts that these "accommodated" religious employers will still be contracting for contraception coverage. Not so. He says the accommodation amounts to a contract by default, because insurers will offer free contraception coverage only to people they already cover (otherwise they would have no financial incentive to do so). But that's a dodge. At this point, who could doubt the intent of the religiously objecting employer? The HHS proposal will not require religious employers to endorse the use of contraception, nor will it bar such employers from informing their workers about Catholic teaching on the subject. (Indeed, that is precisely what the bishop of Madison did when he chose to comply with Wisconsin law and include contraceptive coverage in his employee health plan.)
Intent still matters in Catholic moral reasoning. You aren't engaging in Catholic moral analysis until you answer three questions: What was the intent of the moral agent? What was the effect of his action? Could those effects have been brought about without his action? Franck is all over the second question. But the first and third barely feature in his analysis. Nevertheless, he manages to bump up against the third in his most recent post, if only by accident.
In pointing out that pooled resources complicate the culpability of those who fund them, I noted that paying taxes is not immoral even though tax dollars fund illicit acts (including contraception, thanks to Title X). And Franck agrees with me. But...
does he really mean to assimilate the business of contracting for insurance coverage--a free market transaction between employers and insurance providers--to the situation that obtains between taxpayers and the state? I know that many conservatives have observed that ObamaCare converts health insurance providers into public utilities. Gallicho would go further, seeing them as public agencies, or the moral equivalent thereof.
The business of purchasing health insurance is a lot of things, but a free-market transaction is not one of them. The health-insurance market is tightly controlled by state and federal regulations. They determine what we can and cannot buy. They control whom insurers can -- and, in some cases, must -- sell to. They even tell us where we can buy it -- you can purchase a car across state lines, but not health insurance. The Affordable Care Act increases regulation in several important areas (sayonara, preexisting conditions). It also turns health-care coverage into a requirement of citizenship -- the implications of which seem lost on Franck. He writes:
When we pay taxes, we do so as a civic duty, and we do so under coercion. If we are liable for taxes, we have a duty to pay them as members of the community. Because the state must be able to compel payment, we are subject to coercion if we dont pay. But we share responsibility for the good or evil our government does, and we owe one another our best persuasive efforts, and the action of our votes, to see to it that the government does good and avoids evil.
Our duly elected representatives crafted and passed a bill, signed into law by our democratically elected president, that compels -- you might even say it coerces -- Americans to have health insurance. Franck laments that the government did not decide to provide contraceptives directly (indeed, that would have saved all of us a lot of headaches). In that case, "the state -- meaning all of us whom it represents, collectively -- would be right back 'on the hook,' and we could struggle democratically over whether this coverage is a good to be funded by taxpayers or an evil to remain unfunded by the federal budget." That, Franck opines, "would be a fight in the open, at least. But the HHS mandate is something else again, entailing layer on layer of coercion, deception, and moral thuggery."
Nonsense. The Affordable Care Act was produced by a democratically elected government. The Department of Health and Human Services has issued three sets of proposals responding to the concerns of certain religious employers. It has asked for public comment. If the voters decide that the law does evil, they can throw those responsible out of office. In the meantime, if you can obtain health insurance and you choose not to, you'll have to pay a fine. The Supreme Court declared the individual mandate constitutional as an extension of congressional taxing power.
Back to Franck:
The reason we are not on the hook individually for any evils on which our tax dollars are spent is...that the state acts as the representative of all of us citizens in common (this is true in every state, and literally so in a democracy), and the evils (if any) that it commits are our collective (not individual) responsibility whether we pay any taxes or not.
He's right. That's how you run the argument. Now let's apply it to the contraception mandate. If an accommodated religious employer decides not to provide health coverage to its employees, what's likely to happen? Employees will go to the state exchanges and purchase health plans that include contraception coverage -- worse, they might even contract for a plan that covers abortion (the Affordable Care Act explicitly allows states to bar exchanges from offering plans that cover abortions). That fact diminishes the culpability of accommodated religious employers who choose to provide health coverage to their workers. Add to that the fact that they contract for coverage that excludes contraception, along with the fact that providing health care outweighs the risk that employees might or might not use the separate contraception coverage, and what you have is licit remote material cooperation with evil under duress.
But Franck isn't going for it. At least he has come to understand that one group purchaser can't be held accountable for coverage used by another.
If I run Carolina Catholic College and sign a contract with Blue Cross, it may trouble me that Blue Cross is providing birth control pills to Duke employees, but in its contract with my college, it better not provide those pills to our employees. I am not culpable for the arrangement BC has with Duke. I am directing premiums to a common BC pool out of which funds pay for Duke employees birth control pills, but at least I have not created a triadic relationship in which BC, by virtue of its contract with us, provides those pills to Carolina Catholic employees.
Ah, yes, the triadic relationship -- famous in Catholic moral theological circles for being completely made up by Matthew Franck. He admits that there's nothing wrong with paying an insurer that covers abortions so long as you're not contracting for that coverage. Your money goes into the pool. The insurer then decides how to spend it. You aren't culpable because you didn't contract for such coverage. But here comes the HHS accommodation, "which preserves exactly that triadic relationship, under a deception that the link is severed between employer's actions and employees' access to contraception."
One might be forgiven for detecting in this passage just a touch of obscurantism. Is a triadic relationship one that involves inevitable outcomes by virtue of one's relationship with two other parties? What's the outcome? Franck tells us: employees of accommodated religious institutions will receive "illicit coverage." There it is again -- that fake moral category: the illicit thing. Remember, the Catholic moral tradition does not recognize things in themselves as licit or illicit. Only acts can be so. Until an employee uses that coverage for illicit purposes, there's been no violation of Catholic teaching. (That's why the issue of alleged "automatic coverage" is a red herring.)
Critics of the mandate would rather pretend that the employees' role in the moral question is incidental, or at least not as important as the employers' decision to provide coverage. In fact it is essential -- not only because the decision to behave illicitly is theirs, but also because they receive health-care coverage as compensation for their labor. In the United States, health benefits are considered part of a worker's wages. When diocesan employees buy condoms with their wages, is it their bishop's fault? When they don't, does their bishop get credit? Of course not. An employer is never responsible for his employees' consumption choices. Why should it be any different in the case of third-party-provided contraception coverage? (Note, too, that Franck doesn't have a lot to say about HHS's proposals for "self-insured" religious employers -- that's because HHS will essentially pay a third party to provide contraception coverage. There's almost no cooperation with evil to speak of.)
The mandate's critics twist Catholic moral reasoning into impossible knots: Does Franck really believe it's possible to "sever" all links between human choices and evil outcomes? I doubt it. So why suggest such a thing? Could it be that critics of the mandate contort themselves so because they're loath say what they're really thinking: that no one has a right to opt in to contraception coverage, and no employees have a moral right to use contraception -- Catholic or not? If so, they should say so. But, of course, that would be giving away the game.
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.
Let's start with the Franck's first complaint. Do I have the foggiest idea of what HHS actually announced? Here's how I summarized the latest proposals: "The new rule scotches the previous iterations much-maligned four-part definition of 'religious employer,' and proposes arrangements to make sure religious employers including colleges, hospitals, and charities wont have to pay for or refer for contraception coverage in their employee health plans." Later in the post, I wrote that "any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate."
Franck alleges that I conflated the categories of religious employers proposed by HHS: "Gallicho fails to understand that the new, tax code-derived definition of 'religious employer' is perfectly irrelevant when it comes to the new second category, and insists, quite wrongly, that 'any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate.'" But that isn't my only error, according to Franck. No, I've made "several mistakes at once":
First, the tax codes borrowed language does not apply to "any religiously affiliated employer that has nonprofit status,' but to a much tighter category of churches and their 'integrated auxiliaries." Second, the employers in the new second category who are nonprofits that 'hold themselves out as religious' do not get to 'opt out' at all, if by that is meant that their employees are not covered by the mandate; they get the new (essentially fake) "accommodation."
What is he talking about? When HHS floated its initial proposal for the contraception mandate, it counted as "exempt" only those employers that had religious inculcation as their purpose, that employed and served "primarily" co-religionists, and that operated as a nonprofit. I joined the bishops and many others in criticizing that definition of "religious employer."
A few weeks later, the Obama administration announced a new proposed rule that would "accommodate" religiously affiliated employers that failed to qualify for the narrowly defined exemption by allowing them not to include contraception coverage in employee health plans. Instead, the insurance company would offer employees of such institutions separate contraception coverage at no cost. (At the same time, the administration floated a series of complex arrangements that might address the situation of "self-insured" companies that pay directly for employees' medical care; those have been distilled in the latest HHS proposals.)
So, on the one hand there were "exempt" employers (dioceses, parishes, parish schools) -- their employees would not be eligible for the proposed free contraception coverage. And on the other hand there were "accommodated" institutions (hospitals, colleges, charities) -- they wouldn't have to contract for, pay for, or refer for contraception coverage, but their employees would be able to receive it at no cost from a third party. That difference is preserved -- but clarified in such a way that could expand the range of exempt employers -- in the most recent proposed rule, and that's what upsets Franck. He believes that there is a significant moral difference between a religious employer whose employees will not receive contraception coverage at all and a religious employer whose employees will receive contraception coverage from a third party. He thinks the only true "opt out" is available to fully exempt employers, whereas I see a moral significance in an "accommodated" employer's ability to choose not to contract for contraception coverage. I could have been clearer about this in my post, but in the final analysis, it makes little difference to the moral calculus because neither exempt nor accommodated institutions will have to include contraception coverage in their employee health plans. I agree with Bishop Robert Lynch that this arrangement amounts to "a distinction without difference." More on that in a moment.
Back to Franck: "When the Obama administration claims that employers will not 'fund' the contraceptive coverage provided by insurers," he alleges, "it speaks falsely." He continues:
When it [the Obama administration] claims that the free contraceptive coverage can be afforded by the insurer because cost-savings will result from improvements in womens health and fewer childbirths, the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and womens health in general. The insurer is not being told to lower its premiums because of the cost-savings on procedures and ailments already covered; it is being told that it can put the cost-savings toward the expense of providing contraception. The existing premiums, paid by the employer, will be the funding source.
Leave aside, for the moment, the fact that actuarial studies have already shown that adding contraception coverage doesn't end up costing insurers extra -- it's not relevant to the moral question. What matters is who pays for it and why. Franck says that "the existing premiums, paid by the employer, will be the funding source." Unfortunately for his argument, that's not how health insurance works.
When a group like, say, EWTN pays monthly premiums to its insurance provider, the insurer does not take the money, deposit it in an account used only for the TV network's premiums, and then pay EWTN employees' medical bills out of that account. Rather, the insurer pools EWTN's payments with those from other customers. So when an EWTN employee gets an X-ray, the money that pays the bill may or may not come from EWTN. It may come from a company whose insurance coverage includes abortion. The insurer's risk assessment of its policyholders determines whose monies fill the pools. If the same insurer covers EWTN and NARAL, the two organization's monies will be mingled. Indeed, it's the pooling of premiums that provides the incentive for insurers to offer contraception at no cost to their customers. (In 2002, the Kaiser Family Foundation published a useful primer on health insurance [.pdf]. If you have trouble getting your head around our strange health-insurance system, it's well worth reading.)
So, pace Franck, when it comes to determining who's really funding contraception for employees of accommodated organizations, "the existing premiums, paid by the employer" will not "be the funding source." It may be one of the funding sources. It may not. The point is, there's really no way to know, because insurance companies are in the business of spreading risk. It would be like trying to determine whether any of Matthew Franck's federal tax dollars ended up paying for an abortion for a rape victim. Once he's paid taxes, that money is no longer his. It's collected with other people's money and dispensed by someone else. He's not on the hook for what's done with that money unless he's willed something evil. That is, of course, the point of money. Did the change I got from Starbucks this afternoon come from a drug dealer? I don't know. Was the banana I had this morning picked by a child? I hope not, but did I try hard enough to find out? Did the money I saved by not buying organic cover life-saving medical treatment for a loved one? An electric bill? An iPad mini? The Catholic tradition accounts for the complexity of moral agency in a fallen world. We are never disentangled from sin. So the tradition helps us think through these difficult questions: What did I intend? What was the effect? Could it have happened without me?
Franck doesn't give those questions their due. He seems to suggest that every time someone pays an insurance company he has illicitly cooperated with evil, regardless of intent. After all, major insurers cover abortion for at least some of their customers. (Would he also say "self-insured" religious employers that engage the services of an insurance company to administer their health plans are morally culpable [most do]?) Franck says the latest contraception-mandate proposals are no good because they still involve religious employers in morally illicit arrangements. But everything the Obama administration has proposed is designed to distance the religious employer from the coverage it objects to. It frees religious employers from having to say, "Yes, I want to include contraception coverage in my employee health plan." It allows "self-insured" religious employers to say, "No, we won't pay for contraception out of the monies we've saved to cover our employees' medical care." It transfers responsibility to a third party. If an employee of an "accommodated" religious institution avails herself of the contraception provided by a third party, her employer is no more responsible than it would be were she to use her wages to purchase condoms. In the United States, benefits are considered part of an employee's compensation.
Franck is hung up on whether the HHS proposals will actually work, whether insurers will recoup the upfront costs of providing contraception, even to people who aren't in their risk pools. But who cares? For "self-insured" companies, not a dime from their health-care kitties will pay for contraception. For companies that pay insurance premiums, they won't have to contract or refer for contraception coverage. Might their premiums end up paying for services to which they have religious objections? Yes. But they already are. That they don't intend to fund such services is what frees them from moral culpability.
And that's precisely why I believe the latest proposals for the contraception mandate pass moral muster. If Franck wants to counter my moral argument, he'll have to acquire a clearer understanding of how insurance works.
Yesterday, Bishop Robert Lynch of St. Petersburg, Florida, posted his initial -- and positive -- impressions of the latest revision of the contraception mandate. This is significant not only because Lynch is a member of the U.S. Conference of Catholic Bishops -- and its former general secretary -- but also because he's on the executive board of the Catholic Health Association, a group we haven't heard from since the new proposals were announced. He explains that his assessment has been aided by the "careful opinion" of CHA's general counsel. So you might take his opinion as a sneak preview of CHA's.
Bishop Lynch begins by praising the Obama administration's response to criticisms raised by the U.S. Conference of Catholic Bishops: "Clearly, the Administration has been desirous of listening to and accommodating the concerns of Catholics and other people and institutions of conscience, like myself, who had real worries about the regulatory language in possession up till last Friday." (You'll recall that in 2011 Lynch threatened to cancel his diocese's employee health plan if the contraception mandate didn't get fixed.) Indeed, he says one would be hard-pressed to find another group whose concerns about the Affordable Care Act were taken more seriously. "There have been moments when I think we should consider ourselves lucky that they are still talking to us. "
What has this conversation produced?
First, Lynch says the bishops' concerns about the earlier four-part definition of "religious employer" have been addressed by the new proposal, which uses the definition long established in the federal tax code. "I am personally at peace with this."
Second, Bishop Lynch addresses the new proposal's distinction between exempt employers and accommodated ones. The idea is that neither Catholic parishes nor Catholic charities will have to contract for, pay for, or refer for contraception coverage for their employees. But employees of Catholic dioceses, parishes, and parish schools will not, it seems, be eligible to receive free contraception from third parties. So those kinds of employers are "exempt," while religiously affiliated institutions (hospitals, colleges, charities) are "accommodated" -- their employees can get free contraception coverage. Cardinal Timothy Dolan claims this arrangement "appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities." Bishop Lynch disagrees:
As a former teacher of English (long ago), I find any discussion of the difference between exemption and accommodation to be interesting because as I look them both up in the OXFORD DICTIONARY OF THE ENGLISH LANGUAGE I am led to believe that it is a distinction without a difference. I find this especially true when studying the manner in which HHS would allow other religious entities for whom the mandate presents an issue of conscience to decide that they were worthy of the accommodation. Not many other entities of American life are treated with this level of trust (and this would be especially true of the tax code) and some thanks should also be due to the Administration for trying to find a solution which might satisfy us and other constituencies who think otherwise.
Lynch doesn't expand on this point, but one might surmise that when he says there's little difference between an exempt employer and an accommodated one, he's talking about the moral calculus. In both cases, the institution does not have to arrange for or pay for its employees' contraception coverage.
Third, Lynch offers some parting thoughts on two related questions: Who speaks for the church? And whom does the church speak to?
Cardinals, archbishops and bishops are certainly entitled to their opinions (as I hope I am amply demonstrating in this blog post) but since the Second Vatican Council, our collegial voice has almost always been the elected leader of our episcopal conference, currently Cardinal Dolan. His opinion is certainly not binding on every Catholic, but should be accorded greater respect than any of us. But he speaks for the bishops who elected him, as did his predecessors and as will his successors, not necessarily for the whole Church.
He's spoken up on a related subject before. In 2010, the Catholic Health Association and the president of the U.S. Conference of Catholic Bishops -- then Cardinal Francis George -- found themselves at loggerheads over the abortion-funding mechanism in the health-care reform bill. With the USCCB, George couldn't support the bill because he thought it allowed for federal funding of elective abortions. The CHA didn't see it that way. George seemed to suggest that those who disagreed with the USCCB on that point were undermining episcopal authority. As George told John Allen:
If the bishops have a right and a duty to teach that killing the unborn is immoral, they also have to teach that laws which permit and fund abortion are immoral, George said. It seems that what some people are saying is that the bishops cant, or shouldnt, speak to the moral content of the law, that we should remain on the level of abstract principles.
Is it true that there's no room for legitimate disagreement between bishops and non-bishops about the moral effects of a particular piece of legislation? Soon after, Bishop Lynch responded:
Ive been associated in one way or another with the episcopal conference of the United States since 1972. I have never before this year heard the theory that we enjoy the same primacy of respect for legislative interpretation as we do for interpretation of the moral law.I think this theory needs to be debated and discussed by the body of bishops, he said.
Which leads back to the pointed conclusion of Bishop Lynch's blog post:
As far as I know, at no time up to yesterday (Friday) since the new HHS regs were made available for review and public comment, has anyone from the conference structure consulted with legal counsel for other entities in the Church (hospitals, college and universities, Catholic Charities) to ask their read on how this proposal will affect their ministry. Yet the USCCB statement, it seems, would have one believe that the above mentioned entities might fairly have their noses out-of-joint because they are being given consideration under the accommodation and not the exemption.
But, having just returned from a CHA board meeting, Lynch reports, that is not the case. Now, I can't say whether the USCCB has been consulting with Catholic hospitals, colleges, or charities. Perhaps the bishops conference has been in touch with Catholic Charities USA or the University of Notre Dame. But if there's one outside group the USCCB ought to be consulting with as it formulates its response to the new proposal, it's the Catholic Health Association. If USCCB representatives feel comfortable speaking for CHA members, the least they can do is speak with them.
Lynch closes by asking the bishops to be more humble, to listen more, and to prepare themselves for the fact that the final regulations will fall short of perfection. "I still am grateful that more universal health-care coverage will be the first fruit of the Affordable Care Act, and I am beginning to feel that I can say to my diocesan self-insured employees, all 1,400 of them, that their moral right to health care coverage will survive this moment."
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.
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.
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 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 seems to make 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."
Statement from Sr. Keehan:
The Catholic Health Association is very pleased with the White House announcement that a resolution has been reached that protects the religious liberty and conscience rights of Catholic institutions. The framework developed has responded to the issues we identified that needed to be fixed.We are pleased and grateful that the religious liberty and conscience protection needs of so many ministries that serve our country were appreciated enough that an early resolution of this issue was accomplished. The unity of Catholic organizations in addressing this concern was a sign of its importance.This difference has at times been uncomfortable but it has helped our country sort through an issue that has been important throughout the history of our great democracy.The Catholic Health Association remains committed to working with the Administration and others to fully implement the Affordable Care Act to extend comprehensive and quality health care to many who suffer today from the lack of it.
President Obama's remarks:
As part of the health care reform law that I signed last year, all insurance plans are required to cover preventive care at no cost. That means free check-ups, free mammograms, immunizations and other basic services. We fought for this because it saves lives and it saves money - for families, for businesses, for government, for everybody. That's because its a lot cheaper to prevent an illness than to treat one.
We also accepted a recommendation from the experts at the Institute of Medicine that when it comes to women, preventive care should include coverage of contraceptive services such as birth control. In addition to family planning, doctors often prescribe contraception as a way to reduce the risks of ovarian and other cancers, and treat a variety of different ailments. And we know that the overall cost of health care is lower when women have access to contraceptive services.
Nearly 99 percent of all women have relied on contraception at some point in their lives - 99 percent. And yet, more than half of all women between the ages of 18 and 34 have struggled to afford it. So for all these reasons, we decided to follow the judgment of the nations leading medical experts and make sure that free preventive care includes access to free contraceptive care.
Whether you're a teacher, or a small businesswoman, or a nurse, or a janitor, no woman's health should depend on who she is or where she works or how much money she makes. Every woman should be in control of the decisions that affect her own health. Period. This basic principle is already the law in 28 states across the country.
Now, as we move to implement this rule, however, we've been mindful that there's another principle at stake here - and thats the principle of religious liberty, an inalienable right that is enshrined in our Constitution. As a citizen and as a Christian, I cherish this right. In fact, my first job in Chicago was working with Catholic parishes in poor neighborhoods, and my salary was funded by a grant from an arm of the Catholic Church. And I saw that local churches often did more good for a community than a government program ever could, so I know how important the work that faith-based organizations do and how much impact they can have in their communities. I also know that some religious institutions - particularly those affiliated with the Catholic Church - have a religious objection to directly providing insurance that covers contraceptive services for their employees. And that's why we originally exempted all churches from this requirement - an exemption, by the way, that eight states didn't already have. And that's why, from the very beginning of this process, I spoke directly to various Catholic officials, and I promised that before finalizing the rule as it applied to them, we would spend the next year working with institutions like Catholic hospitals and Catholic universities to find an equitable solution that protects religious liberty and ensures that every woman has access to the care that she needs.
Now, after the many genuine concerns that have been raised over the last few weeks, as well as, frankly, the more cynical desire on the part of some to make this into a political football, it became clear that spending months hammering out a solution was not going to be an option, that we needed to move this faster. So last week, I directed the Department of Health and Human Services to speed up the process that had already been envisioned. We weren't going to spend a year doing this; we're going to spend a week or two doing this.Today, we've reached a decision on how to move forward. Under the rule, women will still have access to free preventive care that includes contraceptive services - no matter where they work. So that core principle remains. But if a woman's employer is a charity or a hospital that has a religious objection to providing contraceptive services as part of their health plan, the insurance company - not the hospital, not the charity - will be required to reach out and offer the woman contraceptive care free of charge, without co-pays and without hassles.The result will be that religious organizations wont have to pay for these services, and no religious institution will have to provide these services directly. Let me repeat: These employers will not have to pay for, or provide, contraceptive services. But women who work at these institutions will have access to free contraceptive services, just like other women, and they'll no longer have to pay hundreds of dollars a year that could go towards paying the rent or buying groceries.
Now, I've been confident from the start that we could work out a sensible approach here, just as I promised. I understand some folks in Washington may want to treat this as another political wedge issue, but it shouldn't be. I certainly never saw it that way. This is an issue where people of goodwill on both sides of the debate have been sorting through some very complicated questions to find a solution that works for everyone. With today's announcement, we've done that. Religious liberty will be protected, and a law that requires free preventive care will not discriminate against women.We live in a pluralistic society where we're not going to agree on every single issue, or share every belief. That doesn't mean that we have to choose between individual liberty and basic fairness for all Americans. We are unique among nations for having been founded upon both these principles, and our obligation as citizens is to carry them forward. I have complete faith that we can do that. Thank you very much, everybody.
E. J. Dionne reports Catholic Charities USA is pleased with the new ruling:
"Catholic Charities USA welcomes the Administration's attempt to meet the concerns of the religious community and we look forward to reviewing the final language," the group said. "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."
And Catholics for Choice is none too pleased:
Previous compromises of this nature, such as that in Hawaii, may have made some conservatives happy, but they have also meant that some women have not been able to access coverage in a timely and easy manner. That is unacceptable.Its unfortunate that on this issue, as many others, far too many in the administration and Congress have sacrificed womens health to get something they want more.
I'm not sure they have the slightest idea what the new rule actually requires.
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.)
Friday, HHS announced that the rule would stand, but that religious institutions would have until August 2013 to figure out how to comply. In the meantime, secretary of HHS Kathleen Sebelius explained, organizations that do not currently offer contraception coverage will have to provide notice to employees that will include information about where they can obtain contraceptive services. Noting that the rule will have no effect on existing conscience-protection laws covering health-care providers -- meaning, for example, that a Catholic hospital won't be made to perform sterilizations -- Sebelius promised "to work closely with religious groups during this transitional period to discuss their concerns."
Obviously, the decision provides little comfort to religious groups that objected to the interim rule. Within hours of the announcement, the USCCB fired off a press release vowing "to fight [the] HHS edict." Archbishop Timothy Dolan of New York put out a brief video protesting the decision. In effect, the president is saying we have a year to figure out how to violate our consciences, Dolan said. And Sr. Carol Keehan, president of the Catholic Health Association -- and a key ally in the Obama administration's effort to pass the Affordable Care Act -- also expressed disappointment with the ruling. While noting that it was "important to have clarified by the president and the secretary of HHS that this decision will not undermine the current conscience protections in law and so very necessary for our ministries," she called the final ruling "a missed opportunity to be clear on appropriate conscience protection."
Keehan is right. The Obama administration blew a chance to correct far too narrow an exemption. Doing so would have avoided the specter of government forcing religious groups to act against their moral convictions. What's more, expanding the exemption would have maintained the status quo. That is, if HHS had expended the exemption, women who work for Catholic institutions that do not cover contraception would not lose anything they already had.But is Dolan correct? Is HHS just kicking the can down the road to make it impossible for the Supreme Court to rule on this before Election Day? Or could something be worked out that might satisfy the demands of Catholic moral teaching? One idea that's been proposed is the so-called Hawaii compromise.
Hawaii requires all employers in the state to include contraception services in their health-insurance coverage. As Wake Forest University's Melissa Rogers explains:
Under Hawaii law, religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternate ways for enrollees to access coverage for contraceptive services. Hawaii law also requires health insurers to allow enrollees in a health plan of an objecting religious employer to purchase coverage of contraceptive services directly and to do so at a cost that does not exceed the enrollees pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.
Under Hawaii law, a religious organization that objects to providing contraception coverage to its employees can invoke a refusal clause that would allow the institution to exclude such services from employee health plans. Religious groups that invoke the refusal clause must -- as required by the HHS ruling -- provide written notice to employees informing them that contraception is not included in their health plans, and they must tell employees where such services can be obtained. A refusal clause only pertains to contraception services intended to avoid pregnancy. An employer must provide coverage for contraception prescribed to treat, for example, the symptoms of menopause. According to the law, an employee is entitled to buy contraception coverage from her insurer at a cost that is no higher than the enrollee's pro-rata share of the price the employer would have paid had it not exercised the religious exemption. So religious institutions do not have to subsidize insurance coverage including contraceptive services, and employees who want such coverage can purchase a separate rider with their own money.
Would that satisfy Catholic moral teaching? It seems so. According to the Catholic moral tradition, cooperation with "evil" (in this case, the use of contraception) is permitted in some circumstances. The USCCB objects to forcing Catholic institutions to fund contraception coverage for employees because it believes doing so would involve them in unacceptably proximate cooperation with evil. Catholic institution pays insurance premium. Insurance company pays for contraception. Employee uses contraception. (We'll get to whether that's a sound analysis in a moment.) But if HHS and religious employers can come to an agreement like the one reached in Hawaii, religious employers would not be directly contributing to the use of contraceptive services. It's true that, as a group purchaser, a religious institution's buying power would be used to set the price an employee would have to pay for a contraception rider, but that cooperation is too remote to be illicit because the good of providing health coverage to employees justifies the act.
But what if such a compromise cannot be reached? What if religious institutions outside the narrow exemption are made to cover contraceptive services that an employee may or may not use? In the USCCB's response to Friday's decision, Archbishop Dolan is quoted saying, "To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable. It is as much an attack on access to health care as on religious freedom." Is he implying that if the religious exemption is not broadened, Catholic institutions will stop providing health care to employees? He wouldn't be the first. Late last year, Bishop Robert Lynch of St. Petersburg threatened to stop providing health coverage to diocesan employees if HHS refused to expand the exemption. Instead, he would offer employees a lump sum they could use to purchase coverage on the open market. How many bishops would follow Lynch's lead? And is that the only course of action permitted by Catholic moral teaching? I don't think so.
(Here I'm cribbing from comments I left on another thread.) In the United States, benefits are part of an employees compensation package. Thats why Bishop Lynch said he would offer diocesan workers more money on top of their base salary, which they could use to buy insurance on the open market. Those plans will likely be more expensive and less comprehensive than those offered by the diocese, and they might include contraception and abortion coverage. What happens when a diocesan employee buys coverage that includes abortion and contraception with money provided by the diocese? What happens when an employee can't get good coverage because he lacks the diocese's purchasing power, and ends up with a pile of medical bills he can't pay? Or forgoes treatment because it could bankrupt him?
To what extent is the institutional church cooperating with evil when its employees purchase contraceptives with their salaries? What is the difference between a diocese giving employees money they can spend freely and giving an insurance company money for coverage that may or may not include procedures and drugs the institutional church deems gravely immoral, or necessary to a gravely evil act? What does it mean morally for a diocese to pay, say, Aetna for a plan excluding the pill and abortions, when other Aetna plans include such services? Does the bishop believe Aetna is not using diocesan funds to cover other plans that do include contraception? By Lynch's logic, are bishops already cooperating with evil by paying insurance companies at all? If so, how remotely? More remotely than they would be if they paid for coverage that could lead to a Catholic employee violating church teaching against contraception? How might a bishop justify such a thing? Perhaps by weighing it against the good of health coverage for his employees -- coverage individuals could not get for themselves on the open market.
Paying for health-insurance that includes contraception coverage does not amount to formal material cooperation with evil because an employee may or may not take advantage of the benefit -- and the act of using artificial contraception is something an employee could engage in with or without health insurance. Rather, when a Catholic institution pays for health insurance that includes birth control, it is remotely cooperating with evil. Remote material cooperation is permissible, according to Catholic tradition, when there are proportionate reasons. Providing health care for someone who could not get comparable coverage as an individual on the open market (and at this point an individual could not) is sufficient reason to freely and remotely cooperate with evil.
So much for the moral-theological analysis (and, moral theologians, I'm happy to be corrected). What about the politics of Obama's decision?
My initial response to the decision was, "This is politically daft and philosophically illiberal." Why risk the Catholic vote Obama worked so hard to win in 2008? I still think the HHS rule is profoundly wrong-headed, but I'm not so sure it's politically foolish, especially not when Obama has been so strongly criticized from the left. Michael Sean Winters has announced that Obama lost his vote over this. Is he typical of most Catholic voters? Obama knows most Catholics disagree with church teaching against contraception, and that they want contraception coverage. He also knows Catholics don't respond well when they think bishops are telling them how to vote. By shoring up his base on this issue -- and reducing unintended pregnancies is something he ran on -- Obama is risking the portion of the Catholic vote that is sensitive into the argument that even if you think contraceptive services should be provided as a matter of basic health care, it's wrong to force religious institutions to violate their moral precepts by paying to cover them. How many voters are keyed in to that question? How many are paying attention to their bishops' statements on election-year issues? Not many, it seems. And it's not as though the bishops have made much noise about the fact that twenty-eight states already require religious institutions to cover contraception, and eight of them lack a religious exemption. So perhaps Obama figured that he couldn't win with the USCCB -- not when its former president feels free to call his "the most secularist administration in history" -- and decided that expanding contraception coverage was worth the criticism.
We'll know in eight months.
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