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Wheaton chaff.

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

Any chance Wheaton's employee health plans are considered grandfathered -- like the plans offered by the Franciscan University of Steubenville -- and therefore exempt from the mandate? No, according to Kyle Duncan of the Becket Fund. What about an exemption? "There's no question that Wheaton can't qualify for any exemption from the mandate for the simple reason that it's not a church or religious order," Duncan continued, assuming that the Department of Health and Human Services would deny the college's request for an exemption. What about the so-called safe-harbor provision, which would delay enforcement of the mandate for religious employers until August 2013?

"Wheaton can't profit by any safe harbor the government has offered simply for purely technical reasons about changes made to its insurance policy," Duncan claimed. Technical reasons? The safe harbor provision "has a number of technical requirements to be able to qualify," Duncan elaborated. "For example, it has a cut-off date of February 10, 2012. Because of technical changes made to Wheaton's insurance policy after that date, it can't qualify. If that sounds arbitrary that's because it is."

No, it's not.

In order to qualify for safe harbor, a religious employer must not cover -- or have recently covered -- services it now wants to be exempt from covering. Duncan didn't explain this on the call, but in paragraph 120 of Wheaton's legal complaint (.pdf), you find this: "They currently provide coverage for certain contraceptives and inadvertently provided coverage for a short period after February 10, 2012, for other now-excluded contraceptives, making it impossible for Wheaton to make the required Safe Harbor certification." Sounds like Wheaton was paying for emergency-contraception coverage for its employees -- for how short a period it doesn't say.

I've followed up with Wheaton (which has outsourced media inquiries about this to the Becket Fund) in order to verify that, but haven't gotten an answer. Through its attorney, Wheaton refused to provide a copy of its employee health plans.

After Duncan cited those technical reasons on the conference call, President Ryken weighed in: "My understanding is that it would be effective for us January 1, 2013. I'll welcome my first freshman in two weeks. We're obviously needing to understand how we're going to provide insurance coverage already this academic year." Does that mean Wheaton might not cover students if this isn't resolved? "We will do everything possible to continue to provide coverage for faculty, staff, and students. What I communicated to our campus community today was that it was my hope to be able to continue to provide it, but i also told them that we would be facing these punitive fines."

The good news for Ryken is that because Wheaton apparently self-funds its student coverage it's completely exempt from the preventive-services mandate. (I say "apparently" because the Becket Fund lawyer who responded to queries I sent Wheaton's media-relations office did not provide a direct answer to the question, "Is the student plan self-funded?")

The document making it clear that self-funded student plans are exempt was entered into the federal register in March. So why, nearly five months later, is Wheaton's president telling reporters that "the mandate forces us to provide abortion-inducing drugs through the insurance coverage that we provide to our faculty, students, and staff"?

On the call, Ryken was asked what he made of recent reporting that emergency contraception does not prevent implantation. "The secretary of Health and Human Services has been clear in her statements that some of the drugs covered in this mandate are drugs that prevent the implantation of a fertilized embryo. We agree with the secretary in her understanding of the effect of these drugs, and regard morning-after and week-after pills as abortifacient drugs. If there were any doubt about that we would still want to err on the side of moral caution." Even if one discounts for the preponderance of evidence against the claim that Plan B prevents implantation (the science on the week-after pill [brand name ella] is less settled), if the university had been serious about erring on the side of moral caution, then why does its legal complaint suggest that it had been "inadvertently" paying for coverage of drugs it calls "abortion-inducing"?

Which brings us to the question of moral reasoning. During the conference call, Ryken rejected the Obama administration's proposed accommodation, which would exempt religious employers from contracting and paying for contraception coverage, while allowing employees to receive such coverage separately from the insurer.

"Any accommodation that still involves us in connection with an insurer that provides abortion services still, though indirectly, nevertheless implicates us morally in that action," Ryken said. In other words, no categories of cooperation with evil for Wheaton. Even indirect involvement with an abortion-providing insurer is morally illicit. When Ryken was asked who insures Wheaton's employees, he couldn't say. But the college's website does. It's Blue Cross/Blue Shield of Illinois. And while Blue Cross pays for emergency contraception for thousands of enrollees who don't work for Wheaton, it also covers an actual abortion drug -- Mifeprex -- which, the drug maker's website points out, Blue Cross covers "to the same extent as surgical abortions."

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Grant Gallicho is an associate editor of Commonweal. You can follow him on Facebook and Twitter.



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Blue Cross/Blue Shield of Illinois has a website with a list of benefits, , and it says, "Coverage and IPA variations: Certain employer groups do not provide any coverage for abortion in their HMO contract. Eligibility for benefit should be predetermined in all cases."Is Wheaton one of the employer groups that provides no coverage for abortion (and hence no coverage for Mifeprex)? Might be worth checking into that, as one wouldn't want to leave the wrong impression.

Now this is the kind of threat to "religious freedom" abotu which these pampered US entities should be concerned:

Stuart Buck,I think the point is that if "even indirect involvement with an abortion-providing insurer is morally illicit," then why is Wheaton doing business at all with Blue Cross/Blue Shield of Illinois? If you want to be totally pure, and you have a self-funded plan, why choose a third-party administrator who provides offending services for other clients, even if you don't include them in your plan?

See the part where I wrote: "for thousands of enrollees who dont work for Wheaton"? That means the coverage I'm talking about in that sentence applies to people who don't work for Wheaton. I doubt very much that Wheaton covers abortion.

why choose a third-party administrator who provides offending services for other clients, even if you dont include them in your plan?Well, that's not what Wheaton or anyone else objects to in the first place.

Well, thats not what Wheaton or anyone else objects to in the first place.Stuart Buck,If they don't object, what is their reason for not objecting?This raises the whole question, once again, of how "remote" your involvement with abortion or contraception has to be before you consider yourself far enough removed. We've covered this before. Most people get their insurance through their employer, and most employer-provided insurance covers contraception and abortion. If your company self-insures and you pay part of the cost of your insurance coverage, you're very directly paying toward someone else's contraception or abortion. That is much more direct, it seems to me, than an employer choosing an insurance plan for its employees, and then the insurance company contacting employees directly and offering them coverage for contraception. So the question is whether Catholics who are provided with insurance by their employers, and that insurance covers contraception and/or abortion, are obliged to do without insurance or get it elsewhere. Granted, the USCCB has not made an issue of Catholic employees "forced" to pay toward contraception or abortion in order to have employer-provided insurance. But why not?

Does it really make much sense to take people to task for being, at worst, over prepared?

I suppose we either will or won't get what we deem a satisfactory answer from Wheaton College regarding how it makes distinctions in its moral judgments. But what isn't being fully considered, in my opinion, is the question, "Who gets to make these moral judgments"? Why should the moral judgment of the federal government override the moral agent in this case (Wheaton College)?

Jim Pauwels, I think the issue here is not moral judgment but legal judgments. Wheaton and the federal government have made the same moral judgments -- that covering contraception and perhaps even morning after pills are okay, and that paying premiums to insurers who cover abortion is not morally problematic (though President Ryken says it is -- they haven't explained that contradiction).The question to me is where this leaves Wheaton legally: if it has no problem with what the federal government is requiring, what is the basis of its lawsuit?

Since the contraception mandate kicks in tomorrow for at least for all for-profit employers (although not until their next annual renewal date) has the USCCB provided any guidance to Catholic employers as to how to form their consciences on this? Do the bishops say it is a mortal sin to provide insurance that covers the contraception mandate - or is it allowable remote cooperation in evil?Have priests been briefed on how to reply when asked that question?Some Catholic employers will have to make that decision this week. Where can they get the teaching they need?

Last week Wheaton College, an evangelical school in the great state of Illinois, let it be known that they were joining the Catholic University of America in alawsuit against the Obama administration over the contraception mandate.That's a little misleading. CUA filed a lawsuit last May. Wheaton filed a separate lawsuit in July. The only sense in which they joined CUA is that they filed their lawsuit in the same court. Wheaton is not represented by the same law firm as CUA.

John Hayes, you ought to do your homework before making such a claim. Dr. Ryken made it clear that Wheaton was filing in DC in the same court as CUA to show solidarity with CUA. He said Wheaton would have filed earlier but needed to get their legal ducks in a row. Ryken and CUA president John Garvey were on the same conference call together to show their unity, and they wrote a joint op-ed for the Wall Street Journal. They presented themselves at every turn as brothers in arms in this battle.

"On Wednesday, represented by the Becket Fund for Religious Liberty, the trustees of Wheaton College joined The Catholic University of America in filing a lawsuit against the Department of Health and Human Services."

If a business sells dirty books, is it a sin to buy clean ones from it? If a pharmo makes abortifacients, is it wrong to buy permissible drugs from them? There's such a thing as slicing the baloney too thin, I think.

A religious group may approve contraception (or even abortion and sterilization) in some cases, yet still have good reason to oppose the Obamacare regulations requiring the wholesale availability of contraceptives, without being hypocritical. For example, the Rabbinical Council of America, an organization of Orthodox rabbis, opposes the contraception measure of Obamacare, even though it approves of contraception in more cases than the Catholic Church. Perhaps Wheaton and other Evangelical groups have a similar view."The regulation intrudes on religious liberties even in situations where the underlying drugs are religiously permitted. The circumstances in which Jewish law allows these drugs are complex and dictated by specific conditions. A mandate that requires an employer to distribute these drugs in every situation, without rabbinic guidance, intrudes on the relationship between rabbi and congregant. The Free Exercise and Establishment clauses of the First Amendment were intended to protect that very relationship from governmental interference. The Orthodox Jewish position involves nuance, and the administrations refusal to grant religious waivers sends a clear message that nuance in this area is not welcome. Refusal to amend the regulation would send a clear message that these Orthodox beliefs are illegitimate and undeserving of basic constitutional protection.". . .A religious waiver is required in this area in order to ensure that Orthodox Jews, along with adherents of other faiths, can run businesses and employ others, without being mandated to violate the tenets of their religion."

Good news for President Ryken: Plan B doesn't induce abortions. Women who have already ovulated at the time that they take the pill get pregnant at the same rate as women in the control group.Now, Wheaton can stop worrying and drop the lawsuit.

I would like to give some choice words for any employer who expects me to follow rabbinic guidance for my health care. Employees aren't vassals.

Patrick Molloy, that is an interesting take, though I think different from the issue that evangelicals and Catholics have, as they don't make a clerical/pastoral consultation a required part of the process. Though maybe there is some relveancy. I think the main objection Wheaton has would be the infamous definition of the exemption, which I agree can be problematic. I'm just not clear on how that gives them legal standing to sue, or sufficient standing. It may, I'm just not sure how clear is the harm they suffer.

Grant: Your time in Purgatory will be a bit longer because of that pun!

I continue to find it amazing that there are people are willing to cede their personal decision making authority to US government over an issue like contraceptives, which are cheap and ubiquitous.FYI, here is another case where a purely private employer has filed a lawsuit and it is progressing.The Catholic family that owns a Colorado-based company won a court victory in their battle to stop the Obama administration from requiring them to provide insurance coverage for abortion-inducing drugs, sterilization and contraception, a mandate they say violates their religious beliefs and First Amendment rights.Hercules Industries, a Denver-based heating ventilation and air conditioning manufacturer that employs nearly 300 full-time workers, got an injunction in federal court which stops enforcement of the controversial ObamaCare mandate. The company's lawyers said they needed the injunction immediately because if the mandate is enforced, it must begin immediately making changes to its health plan, which renews on Nov. 1.The case is similar to ones brought by Catholic-based colleges that have refused to provide employee insurance with such coverage, except this time, it is a secular corporation.In his order, Colorado District Judge John Kane said that the governments arguments are countered, and indeed outweighed, by the public interest in the free exercise of religion."The case still must be aired out in court, but lawyers representing Hercules savored the temporary victory.

Bruce, isn't health care all about personal decision making? You can have a policy that covers all manner of things, but it's up to each person to decide whether they opt to use those services. BTW. Michael Sean Winters reminds us about all the other "mandates" for health coverage that the Aug. 1 deadline brings:

Here is an important passage from Michael Sean Winters' blog entry that David G links to above."Of course, something else will happen in the months ahead. There will be an election. I do not believe that the issue of the HHS mandates, nor the issue of religious liberty more broadly, should become a single issue for Catholic voters. But, it is an important issue. The presidents promise to fix this last November, and his subsequent reversal in January, left a very bad taste in my mouth and showed us something about the presidents decision-making that is unedifying to say the least. Many of us Catholics who supported Obamas candidacy in 2008 did so in part because he seemed open to the idea that people of faith, and public policy positions inspired by faith, would be respected by his administration. He repeated that sentiment in his speech at Notre Dame in 2009. That he caved to pressure from womens groups and the demands of campaign fundraising should leave a bad taste in everyones mouth. The historic calling of the Democratic Party is not to make mischief for churches. By siding with those who really do wish to consign religious institutions to the margins of society, or force them to adopt the ethos of the age, the president betrayed not only loyal allies, but his own promise to be respectful of religious sensibilities. Readers may think this should cost him their vote, or they may not, but even the presidents fans, especially the presidents fans, do their party no favor by denying that the White House and HHS has mishandled this about as badly as a political issue can be mishandled, and that the prospect of a Democratic Party committed to such a view of the role of religious institutions in society is one that should fill them with deep concern."

Bruce, I continue to find it amazing that here are people willing to concede their personal decision making to their employer in return for the employer taking money that theoretically could be paid to them in salary and giving it to an insurance company in partial payment for their insurance coverage.

In the link, I saw that women's preventive services are covered free with "new" plans. So does that mean we need to change insurers, or is it just a new plan year (which for my office begins September 1).

Why the sudden fastidiousness? Contraceptives have been covered by many insurance policies for years. It is hard to believe that all these now-offended institutions sought out policies the specifically excluded them. So they must instead object to the 'mandate.' Actually the mandate relieves them of moral complicity for an something they voluntarily participated in before.

Jim - thought that MSW laid out some good insights until the last paragraph that you have cited. He makes claims that can not be proven or supported.IMO - MSW has been back and forth but clearly wants to vote Democratic and appears to slant his analysis such that this *over-reach* by HHS might create loss of Catholic and Democratic votes in the election. Thus, rather than argue on the merits of the issue, he seems to want to avoid any decisions (whatever their merits) that might influence votes. (prudential, yes; but not very high minded.Sorry, but this continues the 200 year US history of defining, deciding, limiting religious liberty. At the core, we have two competing goods - religious freedom and the common good health of our nation. Interestingly, the one tier of the HHS decision that creates the most angst, is the definition for hospitals, universities, and social agencies. Yet, historically these catholic groups, in one sense, stood outside of the institutional church to offer and enhance the common good - e.g. education for minorities, healthcare for the indigent, poor, lower classes, minorities, etc.; and supporting the gospel imperative - *predliction for the poor*.If you reference and study VII's document on religious freedom, it challenges the catholic institution to respect, protect, and reach out to those who do not share the catholic faith and give them the same dignity and rights as a catholic in the institution. Sorry, but the Fortnight for Freedom and some episcopal utterances that sound more like Catholic Fox News, violates exactly what Vatican II challenged us to do.There is a careful tension here and find the current episcopal or legal arguments to be based on a weak foundation:- catholic hospitals, universities - probably less than 10% are owned by bishops. Data indicates that more than 80% already have the HHS mandate in place.- the argument about religious liberty is basically undermined because the HHS mandate is about birth control access. This issue is really already settled by the choices catholics have and are making every day. - given the bc issue, some bishops incorrectly insert a Fox News slant about abortion drugs. Again, weakens their argument because it ignores medical and scientific evidence.- some bishops' rhetoric cited potential legal threats from state or federal laws. It creates fear that the HHS mandate may set a precedent that will only open the door to more religious liberty restrictions. IMO, this is also a weak argument from *precedence*.....every legal decision is a precedence. As I referenced above, we have 200 years of legal decisions that have refined, defined religious liberty. To make an argument based upon a *possible* fear or threat is a very weak argument. We will continue to have these issues about religious liberty - the episcopal version of *the sky is falling* doesn't really work- catholic social teaching has supported the PPACA; increased healthcare access for women; for the uninsured; for the poor. Yet, these arguments tilt so far to catholic religious liberty that it undermines these gospel goals.- catholic moral teaching about remote means, etc. provides a traditional way to resolve this HHS mandate. Yet, the bishops take an extreme position; ignore or forget traditional catholic moral teachings....for what reason?- finally, compare this HHS mandate debate to the other 25 democratic nations in the world -90% have a form of national healthcare that goes even further than the HHS mandate. But, do you see the institutional church up in arms about that? Where is the US church perspective?

Hi, David, what I was pointing out was that Wheaton didn't "join CUA's lawsuit"That would have meant that Wheaton added itself as a complainant on CUA's existing lawsuit.As an example of what that means, Catholic Charities of Chicago did that recently, adding itself to an existing lawsuit there:'s lawsuit had four other complainants: than adding itself to that lawsuit, Wheaton filed its own lawsuit to Becket, there are 24 separate lawsuits and 58 plaintiffs against the HHS contraception mandate. In some general sense, all 58 plaintiffs have joined together in opposing the mandate and any two or more of them could write an op-ed or hold news conferences explaining their mutual support - as Wheaton and CUA did.But that is different from having "joined a lawsuit"

John Hayes: That's a little misleading. You weren't actually "pointing out" something because "pointing" is not physically possible in a written comment like yours. Just sayin'.

"BTW. Michael Sean Winters reminds us about all the other mandates for health coverage that the Aug. 1 deadline brings"Here is Winters' point in this respect:"I would submit that if the press releases from the USCCB, or the letters from the pulpits, or the statements from the Becket Fund had started with the kind of observation I have just made, that they support the idea of women having increased access to preventive services, this whole debate would have been less contentious. As well, the argument put forward by the USCCB, and those of us who support that position, would have had a better chance of winning in the court of public opinion."I'm not sure I agree. Personally, I wasn't aware that breast-feeding counseling, mammograms and so on were part of the package, until I saw a piece by Secretary Sebelius yesterday. So I think all parties, including the media, haven't given the public a clear and accurate picture of what was included. But whether the contraception mandate is a standalone mandate or is a poison pill in a package of otherwise-admirable benefits, contraception would still be a problem. If the sides were willing to negotiate in good faith, perhaps they could have parceled a package of benefits that didn't include contraception but would still include genuine health benefits for women and children. But the Obama Administration hasn't shown any interest in pulling contraception out of the package. So long as that intransigence remains, it's difficult to see the path to a compromise solution.

David, how true. Let me repost my message as I wish it had been:Last week Wheaton College, an evangelical school in the great state of Illinois, let it be known that they were joining the Catholic University of America in a lawsuit against the Obama administration over the contraception mandate.I think Wheaton's presentation is a little misleading. CUA filed a lawsuit last May. Wheaton filed a separate lawsuit in July. The only sense in which they joined CUA is that they filed their lawsuit in the same court. Wheaton is not represented by the same law firm as CUA.I should have made clear that I think it is Wheaton that was being misleading, not Grant.

I continue to find it amazing that here are people willing to concede their personal decision making to their employer...Tom, another example of government driving the decision. In this case its the income tax laws.

Bruce - read the post from late today. Here is a quote:"For centuries the most powerful and influential argument for social justice has been essentially an insurance-based argument. Justice within a political community requires that the most catastrophic risks of economic and social life be pooled. Everyone should be required to acquit his moral responsibilities to fellow citizens, as well as to guard against his own misfortune, by paying into a fund from which those who are in the end unlucky may draw. This conception of social insurance has been the rationale of the great social democracies of Europe and Canada, and taxation has been the traditionalindeed the only effectivemeans of pooling those risks. Insurance has been the rationale, in this country, of all our great welfare programs: Social Security, Medicare, Medicaid, federal disaster relief, among many others. The Affordable Care Act, out of assumed political necessity, is differentbut only on the surface. It uses private rather than public insurance, and it shuns the label of tax. But it is in essence just another, long-overdue, program of risk-pooling. It is therefore irrelevant that young, healthy people are less likely immediately to need the benefits the program provides. Yes, the act will save many of them from catastrophe later in their lives. But the present justification for asking them to participate is not self-interest but fairness.[...] The national power to tax is not just a mechanism for financing armies and courts. It is an indispensible means of creating one nation, indivisible, with fairness for all."Suggest that you *concede* your personal decision making to support the common good. Extreme individual rights is merely another form of anarchy.

Bruce, if you look up their history, the "benefits" came before the tax laws. I really don't believe you consult your tax attorney before deciding whether to put cream and sugar in your morning coffee.

Here is a Pew survey mainly abou Catholic support for the bishops, including on the HHS affair, and about Catholic support of Obama and Romney at this point. Interesting figures.

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