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What rides on the rider

In their statement on the revised version of the HHS regulations, the U.S. bishops write that under the new terms, the mandate "would allow non-profit, religious employers to declare that they do not offer such coverage [of sterilization and contraception]. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."This redfaced point, which as far as I know has not been contested in any of the descriptions of the regulations that are out there, seems to me to matter quite a bit. For in order for there to be a meaningful sense in which the HHS mandate doesn't require employers to provide insurance coverage for sterilization and the purchase of contraceptives, there needs to be a meaningful sense in which the insurance policy provided by the employer is different from the one that covers these things. Otherwise, we end up with a situation where, while an employer-sponsored policy may not cover sterilization and contraception at the moment that it is issued by the employer, once the employee requests the insurer to add such coverage that same (employer-sponsored) policy now does cover these things, and such coverage is integrated seamlessly with the rest of what the policy covers. It may be true that the default employer-sponsored policy does not pay for anything that the employer finds morally objectionable, but if the modified policy is also an employer-sponsored one, and coverage for sterilization and contraception is a part of it, then the employer has sponsored a policy that covers sterilization and contraception. And surely it will not matter that the employer did not have to tell the employee that there was an employer-sponsored plan available that covered these things, or that the insurer happens to be making it available to the employer at a reduced rate.By contrast, if coverage for these things is on the books as an additional rider that the employee is offered the opportunity to add for free, then -- so long as it really is free for the employer -- the force of this worry diminishes significantly. For then it strikes me the most accurate way to describe the situation would be as one where it must be in the terms of the employer-sponsored policy that it includes an option to add some separate policy that would bring with it some additional coverage, albeit of a sort the employer would rather not provide. I do not expect that everyone who is worried about the mandate's effects on religious liberty would be persuaded by this, but I think I might (though I would still oppose the mandate on other grounds). In any case it would go some way to addressing the concern about the "seamlessness" of employer-sponsored coverage as described in the paragraph above.I will now be shouted at in the comboxes. Please be charitable, as I am not in anyone's pocket here, and I have been thinking a lot about these questions and working hard to set my thoughts straight.

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Riders are add-on policies that require payment. What was proposed by Obama on Friday, will not require payment. Here's what was codified Friday:

Specifically, the Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employers plan participants (and their beneficiaries) who desire it, with no cost-sharing. Under this approach, the Departments will also require that, in this circumstance, there be no charge for the contraceptive coverage.

Read the rest: http://www.ofr.gov/OFRUpload/OFRData/2012-03547_PI.pdf

Well, couldn't something that is on the books as a rider nevertheless be *offered* for free?

We seem to have a split on this now between conservative Catholics and progressive Catholics. Too bad.

Yes, it is too bad. But that is why it is so important to clarify the underlying issues, which is what I am trying to do here. Whether or not I am a conservative (and I remain unsure what that even means), my worries are Catholic and philosophical, and certainly not partisan.

What does all this parsing have to do with the mission of the Church to preach the Gospel? Remember the Pew U.S. Religious Knowledge Survey? The bishops should be utilizing their pulpit to rectify this situation rather than parsing the fine points of insurance policies. Sheesh."About half of those polled (52%) say, incorrectly, that Catholicism teaches that the bread and wine used for Communion are symbols of the body and blood of Jesus. Just four-in-ten people correctly answer that, according to the Catholic Church, the bread and wine actually become the body and blood of Jesus. Even many Catholics are unaware of their churchs teaching on this topic; while 55% of Catholics get the question right, more than four-in-ten Catholics (41%) say the church teaches that the bread and wine are symbols of Christs body and blood, and 3% say they do not know what the churchs teaching is."http://www.pewforum.org/U-S-Religious-Knowledge-Survey-Who-Knows-What-Ab...

PS John, the above post is not a reaction to your particular question which is legit, but just a general reaction.

This may not be the best place for it, but given the level of abstraction of our conversation on this issue over the past week, I thought I'd provide a real life example of how these policies matter in people's lives:Devout young Catholic mother of three is diagnosed with heart disease. Doctors conclude that another pregnancy could severely and adversely affect her health (short and long-term). Mother becomes pregnant again and delivers a healthy baby after spending the final third of her pregnancy on bed rest, much of it in the hospital. With the accelerated course of her heart disease because of this latest pregnancy, doctors conclude that another pregnancy could be fatal. Question: who pays for her husband's vasectomy?

Thank you, Jeanne. And for the record I am wholly in favor of having the bishops do more to address those confusions -- as well as ones having to do with the preferential option for the poor, the injustice of torture, the evils of war, and so on.

I have had employer paid health insurance for 55 years and I never hear from my employer about the thousands of changes that have been made in all those years except once a year being asked by the employer do I want to change my insurer.. I don't even have to say NO.. The policy continues automatically with any of the thousands of changes that my insurer is always telling me about and doing it now on-line almost weekly,, .. What is all your parsing really about.?

If the employees paid a nominal fee of say a dollar to add the rider would that take the pressure off the bishop's consciences?Is the underlying issue about who's paying for the birth control or is it ultimately something else that's keeping the bishops from acquiescing?

". . . a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employers plan participants (and their beneficiaries) who desire it, with no cost-sharing"I can't see that this involved the employer at all. First the employer refuses a plan with contraception, etc., coverage. The ins. says OK. The ins. co. sends a letter to each employee saying that each of them can get free contraception riders. If an employee, Jane Doe, wants the rider, she writes back to the ins. co. and says, I want the rider. The ins. co. notes on his records that employee Jane Doe now has contraception, etc. coverage. She buys some contraceptives, and the ins. co. pays for it. Her employer probably doesn't even know she has it.How does this involve the employer at all? If this is a correct description of the sequence, what are the bishops possibly beefing about?

Ann, they're beefing about the fact that the requirement *isn't* just that the employee be given the opportunity sign up for a "free contraception rider". Rather, the employee can choose to change the employer-sponsored plan into one that (is still sponsored by the employer, and now) covers contraception.

from your answer to Ann, I take it that it is about who pays.It could be argued that the insurance plan, once given to the employee is now theirs. It is, after all, compensation for their work. Once compensation is given, the employer generally doesn't have any say about what that employee spends it on.I see your point that the Church is still left with the feeling it's footing the bill for something it has a moral problem with. But if they're employing non-Catholics, there's a good chance the wages they're paying are being used for all sorts of things that are repugnant to the Church. But it's not on the conscience of the Church, it's on the conscience of the employee.

Steve Shiffrin at MOJ had an on point analysis:http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/the-bishops-res...

According to the Bishops, "It [the Obama revision] would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."The Bishops apparently are objecting that the contraception insurance is not a separate rider."See http://usccb.org/news/2012/12-026.cfmEven assuming the Bishops are correct in their characterization, this objection seems excessively precious to me. It seems to exalt form over substance. I do not see how this distinction gives rise to a morally serious objection involving religious freedom.

I'm not sure what is meant by "form over substance". What matters is not just the effects of the policy, but how those effects are brought about. Because of this, the "separate rider vs. seamless policy" question cuts directly to the substance of what employers are being required to do.

John, You don't seem to understand that employers send employee benefits and monies to many many many accounts without any consideration on the employers' concern about what in the h--l is being done with the sent money.E,G, they send employees money and benefits to... social security, IRS, union dues, 401ks, life and health insurance companies, Red Cross, professional membership dues, college tuition grants, and United Way. on and on and on.. some even pay for magazine subscriptions without vetting the BS that is published within.

Of course I understand that, Ed. But it is one thing to have one's monies end up paying for objectionable things thanks to some complicated causal chain, and another to be forced to buy something that one finds objectionable in itself. Or can you take credit for having purchased my wife's Valentine's Day gift, since I work at an institution that receives some federal support, and you are a taxpaying American?

I think Ed is right experientially.If the issue seems now again quite divisive, no matter if one thinks that's too bad or not, I suggest it's due to it's being so heavily (and partisanly) politicized.

@ luke, Strictly speaking, according to magisterial teaching, no one pays for the husband's vasectomy, because he can't have one. Neither can the wife have her tubes tied. Neither can they practice "artificial" contraception. NFP might work for them, but for lots of couples the method doesn't work, for various reasons. Certainly it would be risky to try that now when the stakes are so high. Their options under magisterial teaching:1. They can cease to have sex. So if the couple is, say, in their 30's, well, them's the breaks. 2. They can cease to have sex, but decide to "tempt fate," and make love once on their anniversary. She gets pregnant. Since she cannot have an abortion, she waits to see what will happen. She might: a. descend into congestive heart failure and decide in extremis to terminate the pregnancy, thus costing the hospital its Catholic affiliation, and also thus becoming a figure of national finger-pointing. Her bishop might announce her excommunication, with or without ever speaking to her. b. She might die, but her death is God's punishment on her for having sex with her husband. Does any of this sound like Jesus' God? I don't think so.

If the causal chain by which the Church's money ends up paying for birth control were made more complicated, would it then no longer be complicit in funding birth control? At what point does the Church's link to the funds become severed? I would argue they become severed as soon as they give the funds to the employee.

What role are funds given to the employee playing in this instance? Nobody is saying that religious employers should be allowed to prevent employees from using their salaries to pay for contraceptives, or for insurance plans that cover them. Rather, the objection is to forcing employers directly to purchase something they find objectionable, namely insurance plans that provide coverage (i.e., pay) for contraceptives.

In my view health insurance and salary are both forms of payment for the employee. They are both "funds."With the new arrangement, while the health insurance is in the possession of the Church, it doesn't include birth control. Once the health insurance is given to the employee and is in the possession of the employee, the Church's link to the funds/health insurance has been severed. Only then can the employee use the funds to get birth control.

Of course they are both forms of payment. In one case the payment is in the form of dollars. In the other its form is that of an insurance policy that covers certain things. And that is precisely where the issue arises.

"Ann, theyre beefing about the fact that the requirement *isnt* just that the employee be given the opportunity sign up for a free contraception rider. Rather, the employee can choose to change the employer-sponsored plan into one that (is still sponsored by the employer, and now) covers contraception."John --Are they saying that the rider for which they do not pay one cent is actually "part" of their own "plan"? Do we have to get into a metaphysical description of what a "plan" is as opposed to what the employer-ins. co. *contract* is? And must we give a metaphysical description of what "their own" means? I"m game.

In their statement on the revised version of the HHS regulations, the U.S. bishops write that under the new terms, the mandate would allow non-profit, religious employers to declare that they do not offer such coverage [of sterilization and contraception]. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employers policy, not as a separate rider.This [bold]faced point, which as far as I know has not been contested in any of the descriptions of the regulations that are out there, seems to me to matter quite a bit.It's contested by me. I don't know of any source for that statement by the bishops. My expectation is that the insurance company will provide free contraception because the government will require any insurance company that sells an insurance contract that excludes contraception to contact all the individuals insured under that policy and offer them free contraception - this is strictly a matter between the government and the insurance company - the employer is not involved in any way. The employer's contract would say that it excludes contraception. In Hawaii, which the government mentions as one example of this kind of program, the insurance company is required to offer each employer a "rider" covering contraception. The outline published in the Federal Register doesn't get into that level of detail - presumably that detail will be provided in the legal language developed during the rulemaking period.The official description of the proposed scheme was published in he Fderal Register last Friday.There is nothing there to support the bishops' claim. See: http://www.ofr.gov/OFRUpload/OFRData/2012-03547_PI.pdf

Ann, that is the opposite of what I am saying. Rather my point is that the coverage for contraception *doesn't* take the form of a separate rider, whereas if it did then this would give some real sense (i.e., allow for a "metaphysical distinction", if we must) to the notion that it isn't part of the employer-sponsored policy.John Hayes: I don't see how the official document helps at all. Here are the relevant lines (from p. 13): "... the Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employers plan participants (and their beneficiaries) who desire it, with no cost-sharing. Under this approach, the Departments will also require that, in this circumstance, there be no charge for thecontraceptive coverage." At the very best this description is ambiguous between the two possibilities I describe, and there is certainly nothing in it about a separate rider. In any case, insurers don't "offer free contraception": rather, they offer to cover contraception, and certain ways of doing this would make coverage for contraceptives part of a single, seamless employer-sponsored plan.

If the revised mandate were really like the approach in Hawaii, it would include a much broader exemption (for any organization that objects to including contraception/sterilization/abortifacient coverage on moral or religious grounds) and then have the separate rider for employees of exempt organizations be the means of achieving "universal" coverage for those that want it. I would be supportive of such an approach (despite my objections to mandates and contraception coverage in general). Whether the Bishops would support such an approach would be up to them, but I think it would be much closer to hat they want than the unwritten revision outlined in the federal register.

John Hayes --If you're right (and to me it looks like you are), then it also looks like the bishops should fire their lawyers. Nobody is going to pay any attention to the bishops at all if they continue with such made-up "problems" as this seems to be.

John: There is no rider. You pay for a rider. The plan is to make this a separate no-cost policy. The bishops complained that they were not consulted before this revision was announced. And now you want us to believe they know more about the new policy than the ones who actually crafted it?

Grant: In what meaningful sense is the objectionable policy "separate"? I have not seen any explanation of this.

John S. --I was asking if that was how *the bishops* were interpreting the new offer. Their interpretation of what Obama has offered is the problem, as I see it. I think they're totally misunderstood the revised offer. Or their lawyers have. Surely you don't object to metaphysical descriptions -- they describe *what* we're talking about, i.e., the essence of the problem. (I thought the word "metaphysical" is now allowed back in philosophical discussions.)

John, I think it's separate because of the actors involved - it is a transaction only between the individual and the insurance company.

I'm sorry Ann, but I'm not following you. From what I understand, the bishops have interpreted the policy as having the structure I identified in my second paragraph (i.e. as involving seamless policies instead of riders), and objecting to it for reasons similar to mine. And nothing I have read about the policies -- including Grant's own descriptions of it -- suggests that they are mistaken in this.

I think its separate because of the actors involved it is a transaction only between the individual and the insurance company.But the result of that transaction is a single policy, sponsored by the employer, that covers contraception.

If you accept that both health insurance and salary are both forms of payment that change hands, then when does the health insurance go from property of the Church (payer) to property of the employee (payee)?

Jeanne @ 1:09:And do you or anyone here wonder why this church comes across as the epitome of illogic in this matter, or in most sexual matters?I wonder how many clerics who have gotten up and railed against the HHS decisions and stand firmly in support of their bishops, then go home to their paramours/mistresses and put on a condom? Or pay for abortions in the event of an "oops baby?"And don't tell me that it doesn't happen.

... when does the health insurance go from property of the Church (payer) to property of the employee (payee)?As soon as the employer pays for it. But that doesn't mean the employer should have to pay (directly) for something that they find objectionable.

" I think theyre totally misunderstood the revised offer. "I don't think for one minute that they have "misunderstood the revised offer." They have deliberately chosen to take what they think is an opportune moment to turn many sheeple against the President.Be careful, bishops; be very, very careful.

@John "As soon as the employer pays for it. But that doesnt mean the employer should have to pay (directly) for something that they find objectionable."They're not paying for birth control directly. When the Church pays out the health insurance it doesn't include birth control coverage.

John: When a group purchaser contacts with an insurance provider, the policy lists all the benefits employees can receive under the plan. What's being proposed here is that religious employers that object to contraception will not contract for that coverage. Rather, the insurance company itself will initiate contact with employees and offer a separate policy covering contraception for no cost to the employee.The employer is not directly paying for that coverage any more than a bishop is paying for contraception coverage for someone who doesn't work for him but receives health coverage from the bishop's insurer.

John, I don't think we know yet how each of the dozens (hundreds?) of insurance companies in the land are actually going to individually structure / modify their policies to accomplish this. Will the bishops then create a subcommittee to pass judgment on individual insurance policies in order to measure the degree of remoteness of material cooperation? If that is the case I think we've slid down the slippery slope into ridiculousness and need to step back and do a big picture refresh of the purpose of the bishops in light of the purpose of the Church.

Grant: You keep saying that the coverage of contraception will be by way of a separate policy. What makes this so, other than the fact that certain people keep saying that it is (as I might simply proclaim that my arm is a separate entity from the rest of me)? Will two different policies be listed on the books, or just one? And if just one, then how is there any separateness?Matt: An employer doesn't pay for coverage just once, but continually across the time of employment. So while it is true that the policy won't include coverage for contraception at the time it's initiated, still it's being paid for at times when it does.Jeanne: I think the bishops (and other Catholic thinkers) should spell out ways of structuring these policies that would not force employers to pay for policies that cover contraception. Indeed, that is what I am trying to do here.

John,you might think of changing your name to "Job:" he of the legendary patience.More power to you!

I see your point. This might be solved by the Church paying the insurance in a yearly lump sum. Or requiring the employee to every month restate to the health insurance company that she wants BC coverage. Then, when the health insurance is in the hands of the Church and when the employee first receives it, it won't include BC coverage.Or perhaps the Church could give each employee a sum of money that's earmarked for health insurance and the employee has to make the choice whether to choose the Church approved health insurance or the health insurance with BC.

... perhaps the Church could give each employee a sum of money that's earmarked for health insurance and the employee has to make the choice whether to choose the Church approved health insurance or the health insurance with BC.That would clearly be okay, but it is wholly outside the spirit of the mandate.

John: I say so for two reasons. First, that is what the administration says it's going to do. Second, if they don't, they will not have responded to the complaint (from bishops and others ) that the original regulations forced religious employers to pay for policies that explicitly included contraception. Here is what the currently codified regulations say: "The Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor) and simultaneously to offer contraceptive coverage directly to the employers plan participants (and their beneficiaries) who desire it, with no cost-sharing.""Insurance without contraception coverage" is one policy. The contraception coverage offered directly to employees is another policy. If contraception was just included in the policy -- if, in other words, it was all one policy -- why would the regulations phrase it this way? Separate coverage means separate policies.I find your reply to Jeanne confusing. What Obama has proposed here is a modification of the Hawaii arrangement, whereby employees of religious organizations that object to contraception pay a nominal fee to the same insurer that covers the policy offered by the employer. The employer is paying for a policy that excludes contraception. The insurer turns around and offers the employee a separate policy covering only contraception. The only difference between that arrangement and the one Obama proposes is who pays. In Hawaii, it's the employee (but it's hardly anything). Under Obama's revision, it's the insurer.

If it is indeed a separate stand-alone policy offered to any interested employee of any exempt employer that objects to coverage, it should not pose a problem for the Bishops (aside from the general objections to government mandated contraception coverage) and they should accept that as a reasonable accomodation. My understanding of what is being proposed is that it will not include an expanded exemption, but will add a third category of employers (not-exempt, but still opposed) to whose employees the new free contraception coverage policy will be offered. What limits will be set on who is eligible to be in this third category? The ofr documents sontemplates that it is limited to "non-profit organizations with religious objections to covering contraceptive services." This would not cover the Taco Bell owner (unless organized as a non-profit who offers free tacos to the poor), so Picarello would still object.

Here is something that rarely gets mentioned:

As National Public Radio reported Friday, the concept of mandated birth control coverage is not exactly new: The only truly novel part of the plan is the no cost bit. Employers have largely been required to offer contraceptive coverage, if not pay for it, since 2000, when the federal Equal Employment Opportunity Commission (EEOC)said that not doing so violates the Pregnancy Discrimination Act.

Here is a link to the NPR report, which begins as follows:

Rules Requiring Contraceptive Coverage Have Been In Force For YearsThere's been no let-up in the debate about the Obama administration's rule requiring most employers to provide prescription birth control to their workers without additional cost.Here's the rub: The only truly novel part of the plan is the "no cost" bit.The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives."Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."In fact, employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.Here's how the EEOC put it at the time: "The Commission concludes that Respondents' exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes." . . .

There seem to be at least four, perhaps five or more, different sets of briefings conducted by the White House on this accommodation:* President Obama called Cardinal-designate Dolan the morning before the former made his public announcement of the accommodation* White House officials visited USCCB headquarters the same day to answer questions* It appears that key Catholic institutional leaders such as Sr. Carol Keehan had been briefed beforehand* The President gave the public announcement of the accommodation* Grant has reported that journalists were briefedObviously, we don't have a public, verbatim record of all of these sessions.To my mind, the most reasonable explanation for the confusion we're seeing here between contraceptives being provided via a rider to the existing policy, vs. provided via an entirely separate policy to which the employer is not a party - and I agree with John S. that much moral gravity may hang in the balance on that distinction - is that there were discrepancies in details among these four or five (or more) briefings. The accommodation hasn't really been fleshed out yet, and the White House was in scramble mode to put out a political fire. Conceivably, they were rolling out the hoses not long after this newest scheme was hatched. Someone, at some point, may have gotten a detail wrong.A simple clarification by the White House would solve the mystery once and for all.

@ Lisa Fullam (2/13, 1:09 pm) Thanks for your reply. That's pretty much my understanding of the Church's teaching, too.I'd like to suggest that it's because the vast majority of American Catholics have had, or know someone who's had an experience similar to the couple I described, that the bishops would---in my humble opinion---be foolish (at best) to continue fighting with the federal government on this issue.(It's also because of these lived experiences that the overwhelming majority of Catholics just ignore ecclesiastic teaching on contraception.)

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