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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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John Schwenkler is an assistant professor in the Department of Philosophy at Florida State University.

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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.)

But Grant, it all hinges on the form that the contraceptive coverage takes. If it is simply folded into a single policy (i.e., the one sponsored by the employer), then it doesn't seem to me that it would be separate in any meaningful sense, and so it wouldn't assuage these concerns. But if its relation to the original policy is similar to that of a rider (and why not just call it a rider? Surely things that are usually paid for can sometimes be offered for free), then the claim that it is separate -- which, by the way, is nowhere in the lines you just quoted -- has some oomph. Was it really made clear to you by people in the Obama administration that the coverage for contraception will be separate from the rest of the plan in the (not merely notional) sense I am after here?Also, Jim Pauwels is exactly right.

If the bishops' description is correct, then this might be worth considering: employee group health policies aren't perpetual. There is typically an "open enrollment period" every year in which each employee re-ups (and learns how much more she'll have to pay than last year). Suppose, in Year 1, a new employee enrolls in his Catholic employer's health plan. Contraception is not included. During the same policy year, the insurer and the employee agree, per the proposed mandate, to 'add on' no-charge contraception (and the critical issue here is, what are the mechanics of adding on). Thus the employee now has the standard employer group plan, plus the no-charge contraception addition.Now, the end of Year 1 is approaching. It's open enrollment time. The employee wants to re-enroll for another year. Does the employer's group policy now include the contraception benefit, which is renewed when the employee renews the standard policy? Or does the employee and the insurance company have to separately re-enroll in the contraceptive policy? Is it the employer's job to track down the employee who forgets to re-enroll in the contraceptive policy? If the employer manages to forget to re-enroll in the contraceptive benefit during open enrollment, is he out of luck for the next year?

Grant, will the new policy be required to be offered to employees of exempt organizations as well or just non-exempt but objecting ones? Don't you think an expanded exemption coupled with this separate policy offered directly to employees would satisfy everyone better that the proposed revision? It will satisfy the pro-contraception parties that objected to the inclusion of any religious exemption, since the employees will still get access regardless of their employer. It will also satisfy those that don't like the limited exemption which treats relgiously affiliated schools and hospitals as "not really relgious." If the exemption includes Taco Bell's owned by those that object to contraception and actually provide health insurance to the limited number of employees they have, even Picarello should be satisfied. The only ones that wouldn't be satisfied are the insurance companies, which will have to offer a separate contraception coverage policy for free, but they should be fine since it is supposedly cost-neutral at worst. Why not try for a win-win solution like this? Any objection from commonweal?

"If the employer manages to forget to re-enroll in the contraceptive benefit during open enrollment, is he out of luck for the next year?"Sorry, should be, "if the *employee* managed to forget to re-enroll ..."

David N, EEOC has not stepped up enforcement of that policy. Belmont Abbey College lost an administrative case, but EEOC failed to file an enforcement action when Belmont hired Becket to defend them under RFRA. I have not heard of any other cases where EEOC has actually filed a action to enforce this decision, which was limited to prescription contraceptions and did not include sterilizations.

here is a link to the Becket Fund's description of the EEOC case: http://www.becketfund.org/belmont-abbey-college-north-carolina-2009/I have not found anything on the EEOC website.

John: You're free to call it whatever you want, but a rider is defined as an additional benefit to a policy that the beneficiary pays for.If the contraception coverage is folded into the policy paid for by the employee (with co-payments from employees, it should be noted), then you're right, we're back to square one. But that is precisely why I believe the senior administration officials who briefed reporters on the revised plan. I have reported what I could, according to the terms of the interview. Senior administration officials confirmed that the contraception coverage would be offered as a separate policy. Another questions: does it make sense to announce that insurers will contact employees to ask them whether they want contraception coverage (and let's not forget that it's optional) if the idea isn't to offer a separate policy? This too was a modification of Hawaii's arrangement. In Hawaii, employers that invoke the religious exemption must directly inform employees where they can obtain contraception coverage -- that is, as a separate policy from the insurer that handles employee health plan.

John Schwenkler, you're asking a question which assumes that there is a plan in which all the details have already been put into precise language.The document published in the Federal Register is only an outline of the major points of the plan. As the document says, the details will be worked out over the next year, before religious hospitals, universities, charities have to take any action. If you read the outline, there is nothing there to justify the bishop's claim that "the coverage would be provided as a part of the employers policy, not as a separate rider.The bishops may claim that that is the only possible way it could work, but that is not true at all. I don't personally like the term rider (used in Hawaii) because it suggests that it is an add-on to the employer's policy. I would prefer a separate policy. However, it's possible that it is not either and you just register online with the insurance company to join the "free contraception program" which is described on their website. I think the essential point is that the insurance contract the employer buys says that it excludes any coverage for contraception, just as it does now. I don't see any reason why that is not possible.

MikeD: I've written this up before. The revision only applies to religious employers that do not primarily employ and serve co-religionists and whose purpose is primarily to inculcate their religious values. That means that people who work in houses of worship, parish schools, chanceries will not be eligible to receive free contraception coverage as a separate plan. I don't see the administration allowing any employer who objects to contraception to opt out. It's nonprofit religious institutions at issue here.

John, I don't think you can have a policy that both covers and doesn't cover contraception. It either does or it doesn't. If insurance companies offer policies to Catholic organizations that do not cover contraception and then make some other arrangements with individuals, it would seem that the bishops are being accommodated. If you are imagining that the policy offered to the individual would somehow be the same policy the bishops paid for, I can't imagine how that would happen. A policy is a quite specific contract. The same policy could both cover and not cover contraception. By definition it would have to be different.

Matt, Arguing that the insurance policy belongs to the employee is a non-starter. The policy belongs to the employer and is purchased by the employer, the employees are the beneficiaries. ed gleason at 12:19 describes the situation perfectly and inadvertantly makes my case. He has no say over the changes in the policy and doesn't even have to agree with the changes, they just happen. Someone does though, and that is the owner of the policy which is the employer.

OOPS "The same policy could NOT both cover and not cover contraception. By definition it would have to be different.

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.Again, as Harvard's Greg Mankiw has said without rebuttal, all that the administration has suggested it might do in the future is change from A to B below: A. An employer is required to provide its employees health insurance that covers birth control.B. An employer is required to provide its employees health insurance. The health insurance company is required to cover birth control.Whether you say the birth control offering is "separate" or is a "rider" or whatever is just semantics. In both cases, the employer is paying for something, and that something ultimately has to be accompanied by subsidized contraceptives. You can object to both, you can be happy with both, but it makes no sense to object to A but be satisfied with B.

Grant, I understand the proposal, but why not follow Hawaii more closly by expanding the exemption and offering the separate policy to all employees of exempt employers, even those that do primarily employ co-religionists and inculcate religious values. That would actually expand the amount of people who will be able to receive contraception. Based on the 98% figure that has been floating around the comments, I'm sure there are some parish secretaries or teachers that would like that coverage.

The facts are that many many many Catholic colleges and hospitals NOW have BC coverage. This ins. coverage is in their faculty/employee/union contracts. If they call one of the amateur canonist's posting here and asked 'do we have to terminate BC coverage right now or wait till the contracts expire'. What say you? Will the USCCB send them that Taco Bell attorney they have, to defend the inevitable law suits?

Grant, will the new policy be required to be offered to employees of exempt organizations as well or just non-exempt but objecting ones? Dont you think an expanded exemption coupled with this separate policy offered directly to employees would satisfy everyone better that the proposed revision?Do you think Archbishop Chaput wants his insurance company to offer free contraception to his chancery employees?My guess was that HHS kept the two groups separate to avoid disturbing the status quo for groups like churches, etc that satisfied the original definition.If the Church wanted to have the same plan with free contraception for both groups, my guess is that HHS would consider it. But I can imagine the uproar from the bishops if HHS did that on its own.

We seem to have a split on this now between conservative Catholics and progressive Catholics. Too bad.John Schwenkler 02/13/2012 - 11:54 am contributorYes, 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.

Yes, I agree that it's very important to clarify the issues. Terribly so. And I'm grateful to you for doing that well.Labels like "conservative", "liberal", and "progressive" have no clear boundaries and seem to be used mainly to do away with the bother of having to think things through, to spell them out. Also, of course, they're commonly used to segregate, to circle the wagons, and to vilify. I wish this were about something as simple as reproductive rights. Theoretically, at least, that could be discussed dispassionately, intelligently, with good will on all sides. Instead, this is about politics, and politics goes immediately into labeling people as friends and enemies.One fascinating thing about this so far is how Obama seems to have chosen the right approach to dividing the temporarily united "progressive" and "conservative" Catholics. In hindsight, it wasn't difficult, but it was certainly clever and insightful. There's a little article in The New Republic - an excerpt from a book written before all this - I don't remember any particulars - that remarks on Obama's ability to extricate himself from tight situations, but always at the last minute. Looks as though that's what happened here.

Bruce thinks I made his argument. Bruce thinks the bishops own the policies at Colleges and hospitals. Of course he is wrong. Maybe I own all the damn policies.. lookit up.

David G (12:53) quotes somebody:

Even assuming the Bishops are correct in their characterization, this objection seems excessively precious to me.

Well, yes, that's what the argument is all about, isn't it? You think it's trivial and they think it's not. Why not grant them that to them it's not, and it's their rights that they feel are being violated, not yours? Suppose it were the rights of a group that didn't involve Catholics at all? Would all Catholics be justified in writing it off as trivial?

MikeD 02/13/2012 - 1:56 pmIf 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.

That all sounds good to me, Mike.If Obama had to stir up this hornet's nest at all, why didn't he at least choose that much more respectful approach? There was a comment out of the White House (as I recall) early on about government lawyers having reservations about the legality of their doing that. That sounds to me more like an excuse than an explanation. If they'd tried, they could have made it work. After all, they're the government - they have bottomless pockets and endless resources and patience. The extremely unfortunate fact is that they didn't try. And now we have this.

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.

Ann, I think a lot of people are going to pay attention to them. This is just beginning.

GG: "a rider is defined as an additional benefit to a policy that the beneficiary pays for."Sed contra: Riders are usually paid for but can be given for free. For example, Those with older life insurance policies might have received an Accelerated Death Benefits Rider for free. Under this rider if you are faced with near certain death in the next few months you can withdraw some of the equity in your policy beforehand. New products commonly have such a provision but older ones did not. In order not to lose their long-time customers to the newer products the insurance company might offer the rider free, at least to selected clients. And not just in competition with other companies - - they may want to offer an updated rider so that their own new product does not cannibalize their own older productsThere is no necessary link between a rider and payment, not legally and not empirically. Some things in life are free, after all.But perhap the administration has plans to mandate payments for all riders that the rest of us don't know about.

Ed, let me ask you the following questions:1) Did you choose the Company?2) Did you negotiate what it covers?3) Did you negotiate its price?Those are the things the employer, as owner of the policy needs to do, even if you didnt see them. You and your fellow employees are the beneficiaries. We all realize the benefits are valuable and so accept reduced wages in exchange for them. But if you choose not to accept any benefits you dont receive increased compensation. The employers keeps any savings. All those things make the employer the owner. The employee has a right to the benefits under the policy, but that does not make them the owner.

Bruce, interesting. If you don't think of health insurance as a form of payment going from employer to employee--if you don't think a transfer of ownership is happening--it makes a lot more sense to me why someone would remain unsatisfied with the new arrangement. I don't think I buy that it's not a form of payment though. I think of health insurance as part of your compensation for work you've done. The employee has in effect paid for the insurance with his or her work.Your argument that the employer is the owner of the policy because he's the only one who can make changes to the policy doesn't hold up in this instance because the employee is in fact making changes to the policy once it's in her possession.

#1 Yes I had a choice of carriers i think about three at the start. . My employer was AT&T and they had more on their mind then about what ins. benefits were over 55 years,# 2. the HMO dictated what was covered. 3. No negotiations.. they raised the price every of the 55 years or so when the 'contract' expired.4. and the bishops still don't own the College and hospital polices.. 'Butt out... your excellency' ' would be a polite as I would get if I was Catholic hospital or college CFO.. . #5 AT&T transfered my health account to their pension plan and we both were happy.What's not to understand about 'Butt out ..your Excellency.. we don't see your name on the bill. the deed, the incorporation papers. 'Consult the USCCB Taco Bell attorney, he may help you out on who owns what.

I dont think I buy that its not a form of payment though. I think of health insurance as part of your compensation for work youve done. The employee has in effect paid for the insurance with his or her work.Matt Moses,In support of your position is the fact that the idea has occasionally come up to tax employer-provided health insurance as income.

Your argument that the employer is the owner of the policy because hes the only one who can make changes to the policy doesnt hold up in this instance because the employee is in fact making changes to the policy once its in her possession.

It seems to me that the employee is merely activating part of an existing policy. There's only one policy, no? As I understand it, if there were two policies, one of which could be entered into separately and voluntarily by the employee by choosing it, we'd have a very different situation and one that might come close to settling all differences.I wonder why the government is refusing to do it that way.I also wonder whey they opened this Pandora's Box in the first place, but that's become a separate issue, now. It seems unlikely that they'll confess error and close it, highly desirable as that would be (except, of course, to the people they were apparently trying to please in the beginning).Politics can be extremely unpleasant stuff.

Let me try this.Every state has a legitimate interest in the terms of the jobs that are offered to its citizens. Part of that interest is in seeing that employers do not exploit the economic power they have to hire and fire.Every state has a legitimate interest both in the way in which health care is provided to its citizens and in how that care is funded.Clearly, the Obama administration takes it that making contraception available is an important part of the preventive care that ought to be provided.Bishops disagree. They have every right to argue that the state ought to change its policies, even to argue that the administration policy is immoral. But they have to win that argument through the political process.So long as the no one is legally obliged to be an employer and no one is forced to use contraceptives, it is very hard to see that anyone's conscience is being violated.Now, there is a state interest in having Churches hire people to do all sorts of things that are in the public interest. That gives the bishops some clout in bargaining about the terms of employment. They are entitled to use that clout as they see fit. They might like to see their views prevail bot have no practical reason to think that they can get everything they think they have a moral right to argue for.So far as I can see, the bishops are using their clout poorly. They are also overreaching in their claims about conscience violations.

Matt,This link describes generally how health insurance works. And it leads me to change my description of the employer to sponsor as the plan rather than owner. http://www.kff.org/insurance/upload/How-Private-Insurance-Works-A-Primer... agree with your premise that health benefits have value and they are provided in return for work. I dont think that's enough to treat them exactly like wages however. For example, one could elect not to participate in the plan (common for a working couple) and there is not a commensurate increase in cash compensation. In effect, that non-participant is now working for less. That is different from other employee directed deductions out of wages.Davids comment about taxing employer provided health insurance is interesting in at least 2 respects. First the non-taxable nature of health benefits has created this problem by making health benefits more valuable to the employee than cash. That presumably makes employees will to take less value in health care benefits than they would demand in wages, which also benefits the employer. And second, because those health benefits are only non-taxable to the employee when paid directly by the employer (vs employee buying and deducting) they have created this conflict between the church and government (and numerous other problems as well).Nevertheless, I think the best way to think of employees in these plans is strictly as beneficiaries.

Ed,Your health benefits were paid directly by AT&T through a self-funded plan under ERISA. The 'health insurance companies' were merely administrators hired by AT&T to handle the day-to-day interactions between beneficiaries and providers. You merely had a claim as a beneficiary. The proposed solution clearly does not work in this case because the Catholic institutions will be paying directly for the problematic mandated services.As for your excellency comment, If I was the bishop I'd respond, "I'm the keeper of 'Catholic', if you choose not to follow my direction in this matter, then you can remove the 'Catholic' from your name. I believe that was the decision and solution in the case of adoption services in Illinois when faced dealing with adoptions by gays.

John Schwenkler, would you have any problem with this scenario?1. A Catholic hospital continues to buy from United Healthcare the same policy it has now - that policy excludes coverage for contraception.2. Without any involvement by the hospital, the government pays United Healthcare to provide free contraception to any employee of the hospital who wants itIf that does't pose any moral issue for the hospital, then determining how much the government should pay United Healthcare is an issue for the two of them to work out. It doesn't affect the morality of the scenario.The government says that United Healthcare is going to save so much money because of fewer pregnancies that it will either make more profit or, at least, break even. Therefore the amount of money it should pay United Healthcare is zero. Maybe they are right, maybe not, but that is a business deal for the government and United Healthcare (and the rest of the insurance industry) to work out. If United Healthcare and the other insurance companies won't agree to the zero payment, then there can be a discussion of whether the government or the employee should pay. In any case, the hospital won't have to pay. Any problem there?

Bernard,Your legal analysis is inverted for the following reasons. The highest law is the constitution which says that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof'. So if Congress tries to make a law, even employment or healthcare law, which it believes is in the best interest of the community, it is precluded from doing so by the constitution if that law prevents the free exercise of religion. That is the Bishops fundamental position. And trying to mandate that any institution which has employees is not a religious institution runs afoul of the exact same problem. Even the original regulations conceded both these points, thats why they had the exclusion for tightly defined religious organizations.

John Hayes: I would oppose such a policy for other reasons (namely, that I don't think access to free contraception is a public good), but it might obviate the problem I am identifying with what I take to be the policy we're getting.

If the contraception coverage is folded into the policy paid for by the employee (with co-payments from employees, it should be noted), then youre right, were back to square one. But that is precisely why I believe the senior administration officials who briefed reporters on the revised plan. I have reported what I could, according to the terms of the interview. Senior administration officials confirmed that the contraception coverage would be offered as a separate policy.

Grant, if things are as you describe in your comment at 3:14, then basically the additional coverage is essentially a rider ("A supplementary clause or codicil added to a document after its first drafting", says the OED, and as Patrick Molloy explains it doesn't matter whether (or how) it's paid for), and so the policy would meet the objection I am raising here. So perhaps I was not right to say that there are no reports out there that conflict with what the bishops say in what I quoted, though I am not sure that the administration itself is clear enough on its policies to make these distinctions. If you want to trust that the officials you spoke to were able to make these distinctions effectively, that's your prerogative. Again, I am just trying to make it clear where the issues lie -- and I am glad that the distance between us seems to concern questions of fact rather than those of right.

John Hayes: I would oppose such a policy for other reasons (namely, that I dont think access to free contraception is a public good), but it might obviate the problem I am identifying with what I take to be the policy were getting.My sense is that what I described is what we will get if the insurance companies agree not to get paid extra. In that case, I think the regulations will not mention anything about getting paid - they will just require that any insurance company that sells a contract that excludes contraception must provide free contraception to any employees covered under that contract. The insurance company will do it because the regulations require them to do it - not because there is anything in the hospital's insurance contract that requires it.

Bruce. last week Catholic Health Care West changed it's name to Dignity Health Care. Biggest ..at least in the west. Now don't tell us that someone, a hierarch owns Dignity, even if it's the core of our respect life principles. If you take your arguments with their esoteric reasoning to the public square you will be ignored by the polite and mocked by the mean. ..

From the Catholic point of view, the issue lies in the degree of cooperation with the "evil" of contraception. If employers are not contracting and paying for contraception, then the cooperation is quite remote, and, given the great good of health coverage, licit.

If employers are not contracting and paying for contraception, then the cooperation is quite remote, and, given the great good of health coverage, licit.It may be that the level of cooperation would be remote enough to make it licit if there is no other way to provide health coverage. But that doesn't mean the state should force employers into that position, which is what is at issue here.

Last Sunday, on the front of the bulletin was an outraged letter from our archbishop on the HHS ruling. It was hard to sit in my pew. Politics had entered the Church. Sister Carol who actually works in health care had accepted the Presidents recent ruling on the birth control ruling. The bishops have decided that the Republican party is for them and is joining them to get rid of the President. It did not work the last time and this misuse of power continues to erode the love of the Church for many. Catholics are leaving the Church. They are making us choose. We want to stay but they are making it so hard.

John S. In the scenario I described I don't see any any cooperation in evil at all. The hospital excludes contraception from its insurance and it has no control over the insurance company distributing free contraception as required by the government. If the bishops' goal is to get to the point at which no one who works at a catholic hospital, university, etc can get contraception other than by paying for it with their own money or qualifying for a low-income program at Planned Parenthood, I think that is going to be a very hard sell.

No, Bruce. There is no infringement of free exercise clause by saying that , if in the course of doing so, you employ people that you don't have to employ. Any organization, religious or otherwise, can engage in whatever activity it wishes. But if they decide to employ citizens to do so, they are not free to do so on whatever terms they choose. There are legal consequences to the decision to hire people. The state has a legitimate interest to make sure that the employment of its citizens takes place under terms that protects the employees. Only the state has the legal authority to decide what these terms are. Of course, bishops, like the rest of us, can engage in the political debate to ask whether the state has picked out the right terms. But that debate is essentially a political debate. No one can elude the political nature of this debate by declaring, unilaterally, that its preferred position be legally controlling.

You can also look at it this way:The ins. co. decision to offer free contraceptives is just a cost of doing business for them. The Catholic employer asks the ins. co. for something simple: will you sell us a contract for an ins. policy that doesn't include contraceptives, etc. coverage? The ins. co. replies Yes, and they sign such a contract. End of employer=ins. co. relationship except for paying the premiums and giving it ins. co. the names of the employees of their institution. The ins. co. then asks the employees if they want riders. Some say Yes. So the company pays for them, and writes off the cost of said contraceptives, etc. End of ins. co.-employee relationship.Yes, the employer has to give the employee names, but they *have* to give the names so the ins. co. can pay for the other meds and services.

I thought what was at issue was the kind of cooperation we were talking about. After all, any time you pay an insurance premium you are subsidizing someone else's contraceptive services. There's a good chance that, according to the bishops' arguments, you're subsidizing abortions too.

No, the bishops' arguments do not have that consequence. For the subsidy is not deliberate in that case, whereas it clearly is when you are paying directly for someone's health coverage.

It has nothing to do with the deliberateness of the act, but rather the nature of health insurance. When you pay Aetna a premium for your coverage that does not include abortion, it's pooled with premiums from enrollees whose policies cover abortion.And now critics of the revised regulations (let us for the moment stipulate that the revision is real) are complaining that even if you split the policies, the employer will still be subsidizing the contraception coverage because they just know insurers will raise rates. Those sorts of objections misunderstand pooled risk.

Bernard,You said: "Any organization, religious or otherwise, can engage in whatever activity it wishes. But if they decide to employ citizens to do so, they are not free to do so on whatever terms they choose. There are legal consequences to the decision to hire people. The state has a legitimate interest to make sure that the employment of its citizens takes place under terms that protects the employees. Only the state has the legal authority to decide what these terms are."I believe the Supreme Court recently rejected that view 9-0.

And now critics of the revised regulations (let us for the moment stipulate that the revision is real) are complaining that even if you split the policies, the employer will still be subsidizing the contraception coverage because they just know insurers will raise rates. Those sorts of objections misunderstand pooled risk.Well that is not my complaint, though I do think it is important that premiums be shown not to go up as a result of the policy.But it is absolutely wrong to say that deliberateness is irrelevant. If I go to a restaurant and buy myself a meal, then I am not paying for your meal, even if in fact your meal was offered at a reduced price and the difference was made up by some of what I paid. Rather, I paid the restaurant for a service, which they provided, and then used what I paid to cover some other costs. In the very same way, when a company (or individual) buys into a health plan, they pay for a certain policy, and the insurer uses the money that was paid (which has now changed hands, as was noted above) in various further ways, including paying for things covered under the policies of other individuals. But the other policyholders (or their employers) are not paying for those services any more than I would be paying for your meal in the situation I described: rather, they pay only for the things they purchase from the insurance company, namely their own policies.

If a religious employer provides for employees a non-contraceptive (NC) plan and as a result the employees receive contraceptive (C) coverage both coverages begin not before the employer pays the initial NC premium and ceases when the employer stops paying premium (with a limited grace period) for any individual. In other words, if Jane Doe quits in the middle of the year both her NC and her C coverage will no longer be in effect. The C coverage lasts only as long as the NC coverage is being paid for. She cannot continue her "free" coverage if she is no longer part of the religious employer's plan. Whether we want to talk about one policy, two policies, or a base policy and a derivative policy (or rider) the two coverages could not be more closely united. I suppose it's possible that a benevolent insurer might continue the C coverage when Jane quits her job - there's no law against it - but I find that even harder to believe than the other dubious elements of the HHS grand bargain. After all, the insurer is supposed to profit from reduced pregnancy claims in the NC plan which becomes non-existent for Jane due to her separation from employment. It's impossible to deny that thetwo coverages are paid for with the same premium dollars whether the NC and C benefits are listed on the same page or disclosed in two separate mailings. BTW, if I were a big insurance company I would be wary of religious employers with a lot of transient workers. These workers would get the "free" C coverage but not stick around long enough for the insurer to reap the benefits from reduced pregnancies.

@Luke Hill on Lisa Fullam's example of the options available to Catholic couples"Its also because of these lived experiences that the overwhelming majority of Catholics just ignore ecclesiastic teaching on contraception."Exactly! While the technical intricacies of insurance policies and various theological hyper-distinctions are hashed out, real couples face options as best they can. Bishops have achieved their irrelevance the old fashioned it, by earning it. The amount of suffering they have facilitated is unfathomable.

I only meant that whether you intend it or not, when you pay premiums to an insurer, your money is being pooled with funds from people who are contacting for abortion coverage. Your premium is not segregated into a separate non-abortion-funding account.Of course, according to the Catholic moral calculus, whether you seek abortion coverage matters significantly. But that is something the revised mandate attempts to address. The USCCB said it was wrong for the government to require it to "pay for" (that's the language they kept using) contraception coverage. Obama said, all right. Even though we are already exempting houses of worship, parishes, and chanceries, we won't make you include contraception coverage in the health plans of your hospitals, schools, and charitable organizations. We will have insurers do that separately.

For any given day or week or year there will be all sorts of cross-subsidies in insurance payouts. On Monday NARAL may subidize the Little Sisters of the Poor Nursing Home and on Tuesday the resuls may be reversed. But over longer periods (which is the proper insurance perspective), if the pricing actuaries are doing their job the magnitude of cross-subsidies will be minimized. The plan sponsors will tailor their plans for a given set of benefits and the premium will closely correspond to that set and not the benefits chosen by others. Over time they will get roughly what they paid for and not a random lottery-like result characteristic of daily payouts. If NARAL ends up susidizing the Little Sisters Nursing Home for more than a year they should get a different consultant to help them find more appropriate coverage and vice-versa. Religious employers should not throw up their hands in the belief that since we can't monitor the movements of every dollar on a daily basis it's useless to distinguish between degrees of cooperation over longer periods. They should maintain their rights to choose a set of benefits fitting their mission.

When you pay Aetna a premium for your coverage that does not include abortion, its pooled with premiums from enrollees whose policies cover abortion.And the relevance of this is what? You're still not paying to get abortion coverage for anyone -- they're having to pay extra for that themselves, if they want it.

Even though we are already exempting houses of worship, parishes, and chanceries, we wont make you include contraception coverage in the health plans of your hospitals, schools, and charitable organizations. We will have insurers do that separately.This is a distinction with any moral difference. Mere semantics.

Sandra, no one on this thread is going to pay any attention to you, so I, also a woman, will step up. If you notice here and if you check back on similar threads over the past few days, you will see that the posters are overwhelming male. They just seem to love those angels dancing on the head of a pin arguments. The more abstract the better. It is more than offensive. And you are correct. People are fed up, especially women and those men who love and respect women. And yes, it is a misuse of power by the bishops, those crazy old uncles up in the attic. We can't get rid of them because they're part of the family. We just have to take them out of the attic occasionally for ceremonial occasions and hope they don't embarrass the rest of the family.

Grant said: If employers are not contracting and paying for contraception, then the cooperation is quite remote, and, given the great good of health coverage, licit. And John responded: It may be that the level of cooperation would be remote enough to make it licit if there is no other way to provide health coverage. But that doesnt mean the state should force employers into that position, which is what is at issue here.John is exactly right, and it's a point Grant refuses to address. Even if Grant's view of cooperation is one legitimate view among Catholics (something John's questions are poking holes in), the point is that there are organizations out there, Catholic and otherwise, who don't agree with grant and who object to levels and balances of material cooperation that Grant does not object to. Why should everyone have to agree with Grant or be fined by the government? Even if Grant's view is one legitimate one, that does not even begin to get Grant to the conclusion that his view justifies mandating every other Catholic, Christian, Jew and Muslim (especially ones running businesses) that their consciences can be violated because they don't adopt Grant's moral calculus. That is insane from a Catholic perspective, from a liberal perspective, and also from the perspective of the federal Religious Freedom Restoration Act which prohibits any such burden (which Obama's rule simply says he is in compliance with, without offering any explanation of why, because no explanation is possible for the simple fact that the government could give away contraception free ITSELF instead of forcing others to do so). And this gets us back to John's question: the fact that the government could provide contraception coverage itself, to any comer, shows why the Mandate is NOT independent of the employer's plan. Not any woman can walk into the Insurance Office and say give me my free coverage. It can only be a woman whose employer already pays that company. There's nothing separate about it, when you consider the alternative of the government offering it regardless of where the heck you work. The contingency of the employer's plan being paid for for that employee is a necessary and direct condition of the woman getting her extra coverage under the President's proposal even according to Grant's interpretation of it. But the point isn't whether there is or is not a way to make Grant correct that the cooperation can be mollified even in those circumstances. The point is that Grant has offered absolutely no excuse why every religious person affected by this mandate must agree with Grant on this question--why dissent from Grant's moral view can legitimately be squashed by the federal government.

Politics had entered the Church.

Yes, Sandra, but it came from outside, not inside. Before August of last year (as I recall) this issue did not exist. Then the White House created it. Would you have had the Church simply accept the change without protest, and start paying for insurance policies that covered contraception and sterilization? Or did you object to the original dictum but feel that the second version solved the problems presented by the first?

I do think it is important that premiums be shown not to go up as a result of the policy.

John, that's impossible, no? How could such a thing ever be proved? There must hundreds of thousands of interrelating factors figured into rate increases. It would simply be buried in the noise.

Bernard,I agree with you that the state has a legitimate interest to make sure that the employment of its citizens takes place under terms that protects the employees'. Unfortunately, its subordinate to the constitution. The administration's carve out for religious institutions demonstrates that they agree and the recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC decided on Jan 11, 2012 by a unanimous vote demonstrates that the court agrees as well. You can read the entire decision here. http://www.supremecourt.gov/opinions/11pdf/10-553.pdf One pertinent part on pg 21 says The interest of society in the enforcement of employ- ment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.Your position while well argued just doesnt hold water.

Ed, I think your example about Dignity just demonstrates the validity of my argument, no matter how esoteric you consider it. And if that means being ignored and mocked, so be it. I'll happily change my mind given a well-reasoned and Truthful argument, but mocking and ignoring are neither.

The USCCB said it was wrong for the government to require it to pay for (thats the language they kept using) contraception coverage. Obama said, all right. Even though we are already exempting houses of worship, parishes, and chanceries, we wont make you include contraception coverage in the health plans of your hospitals, schools, and charitable organizations. We will have insurers do that separately.

Grant, don't you have even a tiny nagging doubt about the ethics or possibly the legality of the President's simply ordering insurance companies to suck up the cost of contraception and sterilization coverage (yes, of course there's a cost) just to give him political cover with enough Catholics?

David Nickol, thanks for the link.Bruce,I don't think the fact that an employee could elect not to participate in health insurance offered by their employer makes it any less of a form of compensation. Money left on the table is still money. The idea of employees being merely "beneficiareis," gives me a connotation of employees benefiting from their employer's generosity, rather than the employees being independent actors in a business relationship who are receiving payment for services rendered. I love capitalism.John Schwenkler,You bring up intentionality. This is how I understand your refutation of Grant's arguments about pooled insurance money: the Church isn't funding BC when it pays into a health insurance plan because even if that money goes into the pot that funds BC for people on other plans, the Church isn't intending to pay for BC and so its conscience remains clear. If this is true, then couldn't the same argument be made in support of the revised rules? If you still feel Church money is being used to fund BC, then isn't the Church's conscience in the clear because it isn't intending its money to be used this way?

Ann, You posited the following:The ins. co. decision to offer free contraceptives is just a cost of doing business for them. The Catholic employer asks the ins. co. for something simple: will you sell us a contract for an ins. policy that doesnt include contraceptives, etc. coverage?Since the insurance will know that it must provide 'free contraceptives' as part of a policy with a religious employer, even if that policy on its face does not include contraceptives, wont it just figure those into the cost of the policy? There is no way to force a demarkation. Everybody knows the policy must include 'free contraceptives' and thats the fundamental problem. I believe its a Hobson's choice: a free choice but with only one choice. In my book, thats not a free choice.

Matt,I love capitalism too. And I agree money left on the table is still money. By beneficiaries, I dont mean to imply that its not fair deal mutually negotiated between the employer and the employee. I only mean that the only way the employees can access the compensation is by accessing medical benefits. Those benefits are funded, in part, by the employers cash. And if they include contraception et al, then the employers cash is purchasing those benefits on behalf of the employee and voila, we have the bishops problem. They are different from wages because the employee cant do whatever they want with them.

Matthew Yglesias, a leftist commentator, after making the obligatory sneer at Catholic "obscurantism," points out how how the HHS mandate actually operates (he might also say that there's quite a bit of progressive obscurantism involved in the HHS scheme):"Another point worth making is that this is one of these issues where the actual incidence of the costs of a policy and the legislative incidence are going to be quite different. Liberals often like making "employers" pay for things as an alternative to taxing people. But in practice, employers are making a tradeoff between health care spending and wages. If your employer shifts from not subsidizing contraceptives to subsidizing them, what happens is that the workers who don't use contraceptives are providing cross-subsidy to those who do."http://www.slate.com/blogs/moneybox/2012/02/10/the_economics_of_birth_co... some good comments on the post - about the less than impressive record of preventive measures.

Bruce, I think that's a better argument: they're different from wages because the employee can't do whatever they want with them. They can only buy health care with this particular form of compensation. But even if it's a payment that can only be spent on health care, shouldn't the employee be allowed to spend it on health care as they decide? Must my employer add additional limitations on what this particular form of compensation is allowed to be spent on?

John S: "I do think it is important that premiums be shown not to go up as a result of the policy."If only. My premium went up significantly a year after AFC passed Congress. I'd think the only way to stop insurance companies from raising premiums for whatever purpose they like would be federal regulation. But how far can that go? If premiums don't go up one year, they'll go up the next. I think it's a given insurance companies will raise premiums whether they need to or not, and when they do, those opposed to the HHS mandate are going to claim that just proves -- again -- that the President's "so-called" accomodation was a scam.It seems to me the USCCB distrusts everything that comes out of this White House. They seem perfectly willing to put the worst possible spin on virtually anything Obama does. Now, some have gone as far as to accuse him of intentionally attacking religious liberty. Who else speaks of the President this way? Three guesses. It's hard not to think somebody's throwing partisan wrenches into the works, if not the bishops themselves, those advising them.

Having read this exhausting discussion I am starting to wonder why the government needs to spell out in detail what must be covered by health insurance. I think one could easily devise some more flexible system of incentives to motivate employers to buy decent coverage for their employees, without all this micro-managing.

I'm not endorsing Fox News here. This interview with Cardinal Wuerl is posted on the Archdiocese of Washington's website: http://www.foxnews.com/on-air/americas-newsroom/index.html#/v/1450080861...

Cardinal Wuerl raises one good point: the administration has to work with institutions that self-fund their employee health plans to figure out how to keep them from funding contraception coverage. The notion that the proposed revision violates Catholic institutions' religious freedom is a canard.

Grant,I'm not sure how your first and second sentences work together.

Bishop Lynch, in the Diocese of St Petersburg, says his diocese is self-insured, so the fix actually leaves him in a worse position. Bishop Lynch seemed pretty reasonable on health care reform generally, so I would give his concerns some weight. http://dosp.co/2012/02/little-more-than-a-nod/

Matt,You asked: Must my employer add additional limitations on what this particular form of compensation is allowed to be spent on?Almost all of our entire health care system is based on the employer deciding what will be covered and to what extent, except when the government steps in with its mandates. I'm guessing employers try to balance cost against employee happiness (or maximize utility in economic speak) but as the sponsor its the employer's decision. And I dont think its an easy fix because as soon as you move to individual policies, and away from groups, you get the problem of adverse selection where only sick people enroll or the individual mandate. But because the employers sponsor health care coverage for their employees, and the church is an employer, you get the current issue.

Grant,I think you are way to quick to dismiss Cardinal Wuerl's religious freedom issue. The administrations recent revision is a formulaic response but as this long thread demonstrates there is substantial disagreement about whether it has any substance. In our world of employer sponsored health care its virtually impossible to separate the employer from the health care provided. Its impossible for any self-insured entity, and the notion that the triangle of Employer-Insurer-Employee that the administration envisions somehow gives independence to the employer when all three know the endgame is at best a fig leaf and at worst laughable.

Re Bruec and Josh:Both of you cite the Supreme Court ruling to refute what I said. Note that the Supreme Court is a branch of the government. Nothing in the decision you cite suggests that the Supreme Court takes it that the bishops are entitled to determine the meaning of the Constitution. The bishops are entitled to raise a LEGAL challenge to any law that they see fit. They are not legally entitled to determine the validity of that challenge. That is a governmental function, sometimes to be performed by the Supreme court and sometimes to be determined by either the executive or the legislative branches.None of this means that the legal trumps the moral in every respect. Sometimes the moral issue is so important that the legal norm must be violated whatever the legal cost. Sometimes the moral issue is not so important. In either case, it makes no sense to suggest that the bishops can or ought to be the ultimate determiners of the legal. That they are not so does not mean that their moral claim to freedom of conscience has been infringed upon. Rather it means that exercising it may have a legal price to pay.

"Since the insurance will know that it must provide free contraceptives as part of a policy with a religious employer, even if that policy on its face does not include contraceptives, wont it just figure those into the cost of the policy? There is no way to force a demarkation."We expect that, if the insurance company is rational, it will try to make up the loss on the 'free contraceptives' somehow. It is not a given that it will do so by raising the premium to the Catholic employer. For one thing, the market may not permit it; if United Healthcare tries to jack up the rate, the Catholic employer may be able to switch its business to Aetna or Blue Cross/Blue Shield and get the same or a lower price.Perhaps the insurance company will make up the loss by charging its non-Catholic-institution clientele a higher rate for their 'free contraceptives'. Or perhaps it will do so by imposing higher co-pays on actual healthcare meds across the board on the employees of all its clients. Or, for all we know, there could be a tax write-off benefit to just sucking up the loss on the 'free contraceptives'.

Grant, I agree with Bruce: you are dismissing these concerns way too quickly, especially given the lack of any written document or other official statement from the administration that confirms your interpretation of the law.

John and Bruce: Only if you believe Obama was lying or crazy would you think that he had no intention of codifying the proposal he made on Friday in a nationally televised press conference. The regulations themselves promise to work out something along those lines. If the ultimate final regulations actually require Catholic employers to contract and pay for contraception services, I will criticize the Obama administration again -- as I did many, many times before the revision was announced last Friday.

Grant: Nothing Obama said in his televised press conference is sufficient to clarify the issue I am raising here. Nor is it clarified in the document released by the WH press office, which looked like it had been written up in about five minutes. Nor is it clarified in the version of the regulations posted to the Federal Register, which as I understand it do not include the accommodating language at all. So no, I don't have to think anyone is lying or crazy to want something more than the word of an unnamed administration official who said some things in a conference call about a policy that he or she may not wholly have understood, and indeed that may not really have been worked out in detail at the time, especially given that those descriptions of the policy are contradicted by ones that other parties seem to have come away with.

John Schwenkler, I don't understand your comment "Nor is it clarified in the version of the regulations posted to the Federal Register, which as I understand it do not include the accommodating language at all."The Federal Register includes the "deal points." As in any business negotiation, these have to be developed in a second step to describe he exact methods by which the points will be accomplished. As explained in the document, that development will go though the normal federal rulemaking process, which provides for input and comment on drafts by stakeholders. That rulemaking process will happen during the coming year and final rules will be published before the hospital, universities, etc. have to comply.Here are the "deal points" (my emphasis)

With respect to certain non-exempted, non-profit organizations with religious objections to covering contraceptive services whose group health plans are not grandfathered health plans, guidance is being issued contemporaneous with these final regulations that provides a one-year safe harbor from enforcement by the Departments.Before the end of the temporary enforcement safe harbor, the Departments will work with stakeholders to develop alternative ways of providing contraceptive coverage without cost sharing with respect to non-exempted, non-profit religious organizations with religious objections to such coverage. 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. Actuaries and experts have found that coverage of contraceptives is at least cost neutral when taking into account all costs and benefits in the health Plan. The Departments intend to develop policies to achieve the same goals for self-insured group health plans sponsored by non-exempted, non-profit religious organizations with religious objections to contraceptive coverage.A future rulemaking would be informed by the existing practices of some issuers and religious organizations in the 28 States where contraception coverage requirements already exist, including Hawaii. There, State health insurance law requires issuers to offer plan participants in group health plans sponsored by religious employers that are exempt from the State contraception coverage requirement the option to purchase this coverage in a way that religious employers are not obligated to fund it. It is our understanding that, in practice, rather than charging employees a separate fee, some issuers in Hawaii offer this coverage to plan participants at no charge. The Departments will work with stakeholders to propose and finalize this policy before the end of the temporary enforcement safe harbor.Nothing in these final regulations precludes employers or others from expressing their opposition, if any, to the use of contraceptives, requires anyone to use contraceptives, or requires health care providers to prescribe contraceptives if doing so is against their religious beliefs. These final regulations do not undermine the important protections that exist under conscience clauses and other religious exemptions in other areas of Federal law. Conscience protections will continue to be respected and strongly enforced.

John Hayes: I don't think the second boldfaced sentence (which is the crucial one) settles anything. For my worry hinges on the relation that the contraceptive coverage offered by the issuer, if accepted by a plan participant, will bear to the employer-sponsored policy. If it's not a separate policy from it (which language is not included in the regulation), then the policy doesn't meet my standard.

A lot of discussion has assumed that today's health insurance companies are like Ben Frankln's fire insurance company where a group of homeowners pooled the risk that some of their homes would burn down and agreeed that those people would be reimbursed out of a pool of money that they had all subscribed. That arrangement is what is called a mutual insurance company and the policyholders are the owners of the company.if the company makes a profit, some of the profit goes to a reserve against future losses and the policyholders get the rest either as a dividend or as a reduction in future premiums. But companies like Aetna and United Healthcare are not mutual companies. They are businesses with investor shareholders. They make a contract with you that you give them a certain amount of money and they will take the risk of paying all the claims that fall within the terms of the policy. You are not involved in any pool. If claims are high, they bear the loss; if claims are low, they make a profit. You do not share in their profits or losses unless the contract has some special provision for that. I think this has a bearing on some of the moral issues that have been discussed.

Officials. As in senior administration officials who were involved in crafting the policy. The revision of which was reported by every major media outlet in the country. I certainly won't try to force you to take the word of people who can't meet your standards of press-release composition, but I would ask that you consider how politically daft it would be for Obama to do what what those advancing the other "interpretation" claim he will. Namely, nothing. If Obama was planning all along to force Catholic hospitals, universities, and charities to pay for contraception coverage for their employees, then last week's press conference and press briefings were an elaborate ruse. Why would he do that unless he wanted to offer his political opponents another cudgel with which to beat him?Also, it's not quite accurate to say that the regulations codified Friday do not include the accommodating language "at all":

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.

There would be no point in describing two offers of insurance, one without contraception coverage, and one offering just contraception coverage, if the original "final" ruling was going to stand, forcing religious employers to purchase contraception coverage for employees.

John Hayes-- this language which you bolded is of no legal significance whatsoever:

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.

Grant is wrong to say that "the regulations promise" anything. What's written above isn't a regulation at all. The regulation is what comes at the end. What's written above is just fluff, as far as the law is concerned. It doesn't bind anyone, and if the Department doesn't initiate such a rulemaking, or if this (currently hypothetical) rulemaking doesn't turn out as promised, no one will have any recourse.

John Schwenkler, I guess you'll have to wait to see how it develops in detail during the next year. However, note that the FR language " Specifically, the Departments plan to initiate a rulemaking to require issuers to offer insurance without contraception coverage to such an employer (or plan sponsor"Does not support the bishops' statement:"the coverage would be provided as a part of the employers policy, not as a separate rider.

John Hayes and Grant,To me, this is the critical piece: 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. But of course, just writing rules cannot force this to happen. As virtually everyone agrees, this is impossible to make happen in a self insured plan making this sentence completely worthless:The Departments intend to develop policies to achieve the same goals for self-insured group health plansJust standing up and giving a speech, or printing up deal points does not mean the deal actually works. Many times, working out the all details of a deal shows the initial agreement is unworkable.

Grant, you keep moving the target. E.g. you write:

If Obama was planning all along to force Catholic hospitals, universities, and charities to pay for contraception coverage for their employees, then last weeks press conference and press briefings were an elaborate ruse.

But I am not saying that there is any such plan. Rather my suggestion is that employers may end up being forced to sponsor a single plan that includes coverage for contraception. And that possibility is entirely compatible with the letter of what you quote.Look, here is another way to put the difficulty. I think it has come out in this discussion that the question of what does or doesn't count as sponsoring an insurance plan that includes coverage for X is pretty hotly contested. I have tried to fix a criterion that would settle this. Why should I be confident that the officials you talked to had this strict sort of criterion in mind rather than some looser one, or even that they were attuned to the importance of this strictness? Does the administration employ a fleet of moral philosophers and theologians?And John Hayes, it is simply not the case that the line you quote is in any sort of tension with the bishops' description of the policy. The employer can be offered a plan without coverage for contraception that is then changed into one that does have such coverage, at the employee's request. Grant himself has insisted that the coverage for contraception won't take the form of a rider.

Stuart is wrong to claim the codified regulations don't promise anything. They say that a rule will be issued that will allow religious objectors to offer contraception-free coverage to employees and that employees will be able to obtain contraception coverage from insurers with no cost-sharing.He is not wrong to say that if the rulemaking described in the code never happens, then nothing will have changed. At which point I will happily criticize the Obama administration for trying to force religious employers to pay for coverage that violates their religious values. Again.

John: Of course, I can't predict the future. It's possible that the administration will screw this up, just as it screwed up the original regulations. But is it likely? We have reason to believe they heard the message of offended Catholics and are serious about codifying a policy that responds to that criticism. Sr. Carol Keehan, president of the Catholic Health Association, believes the plan does just that. She consulted with the administration before Friday's announcement. I have no doubt that she pointed out why the original regulations were unacceptable. It doesn't take a fleet of moral philosophers, or moral theologians, to get that point across.

Again, Grant, this just shows that you have a lot more confidence in the administration's ability to engage in careful moral reasoning, not to mention its good will, than do many of the rest of us. And given the seriousness of these issues, it seems fair for those of us who weren't privy to the private conversations to wish for a written statement from the administration that clarifies these issues.I hope I will not be regarded as a cynic if I also point out that if the administration does mess this up, it will be post-2012, and so too late for there to be any real political consequences.

John Schwenkler, speculating about language that doesn't exist yet isn't very useful. Your post started from the bishop's statement that:the coverage would be provided as a part of the employers policy, not as a separate rider.I don't see anything in the Federal Register that suggests that. So let's wait to see what the draft language actually says when it is released for public comments.

But, John, you need not be privy to private conversations to see my point that the politics of the matter weigh heavily against the USCCB's theory that nothing is really going to change. And you need not be privy to those conversations to read the many news reports about the plan.Just because the grace period goes to 2013 doesn't mean the revision won't be codified before then.I understand why people are skeptical of the administration, and I would never caution unfounded trust. it just happens that you and I differ on the likelihood of the administration keeping its word. Something a skeptic might keep in mind as he weighs these matters: During the health-care-reform debate, the USCCB sent out a stream of missives predicting that the executive order promising no federal dollars would pay for elective abortions as a result of the new law was not good enough, and that abortions would be federally funded. Yet, when New Mexico and Pennsylvania tried to cover abortions with Affordable Care Act subsidies, HHS (under Sebelius) issues orders forbidding them from using federal dollars to pay for abortions, citing the president's executive order. Sometimes politicians keep their word.

"But companies like Aetna and United Healthcare are not mutual companies. They are businesses with investor shareholders. They make a contract with you that you give them a certain amount of money and they will take the risk of paying all the claims that fall within the terms of the policy. You are not involved in any pool. If claims are high, they bear the loss; if claims are low, they make a profit. You do not share in their profits or losses unless the contract has some special provision for that."John Hayes --This cannot be repeated often enough. There is NO problem of the monies of the premium payers being pooled and then used to buy other people contraceptives, for the very simple reason that the money they give the ins. co. is no longer theirs. What they now have in exchange for the monies are their rights to have the ins. co. pay the medical bills that they contracted for.Treating a nothing ("my" premiums in the ins. co's pool) as a something always leads to ridiculous implications. In this case it leads to saying that the employees of the Catholic NGOs, etc. are paying for other people's contraceptives, sterilizations, and abortions.

Bernard,First, the Supreme Court is the body tasked with determining Constitutional limits. The Legislative and Executive do not have that authority. Second, I quoted you both the recent Supreme Court decision and the Administrations original carve out for religious institutions to show you that both these arms of the government have acted recently in a way that shows they see a first amendment argument which belies your absolute 'if you have employees then the government sets all rules' position.Finally, governments exist to serve the governed. As Lincoln said, our is '...of the people, by the people, and for the people...' And the Declaration of Independence notes '...that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...'One of the unalienable rights is Freedom of conscience and worship and as such it preexists and stands above any law, including the constitution. And the law must recognize and defend that freedom to have any claim at legitimacy.

The question has been asked, many times now, why the Administration doesn't just give contraceptives directly to consumers, if it is that important a health policy. My question is, can the Presidency promulgate what is in effect a brand-new federal entitlement without Congress' consent? If not, that may explain why the President keeps ordering that someone, anyone other than the federal government, pay for contraceptives.

Jim,I hope the obvious answer to your question is the correct one: he cant. And he cant get Congress to appropriate funds.I recommend this article as well worth reading. President Obama, the Right Not to Do Wrong, and the Politics of Ruse and Delayby Matthew J. Franckhttp://www.thepublicdiscourse.com/2012/02/4716

Jim Pauwels, I suppose because 85% of employees already have contraception included in their health benefit plans.No reason for the government to take that cost off of the hands of employers who are already paying it. Congress did require the mandatory inclusion of women's preventative services in health benefit plans when they passed the Affordable Care Act. They left the definition of specific preventitive services to be established by HHS regulations. Contraception is only one of a list of items. I haven't heard any objections to any of the other items.

The other reason for the government not to give away contraceptives is that the insurance company can make money by giving them away free.The insurance company has already signed a contract that it requires it to pay for all pregnancies of employees of St. Joseph's Hospital. The amount of oney it will get is fixed, regardless of no much it spends. It's actuaries say that if the insurance company gives away free contraception, it will save more money on pregnancy costs thn it will lend on contraception. Right now, it can't do that because the bishop won't allow them to solicit the hospital employees. The new regulations will require them to do it, so the bishop can no longer prevent it. Please notice that the insurance company is using its own money to do this. As Ann Olivier has explained, once the hospital paid the premium, it became the insurance company's money. The proposition that contraception is cheaper than pregnancy care has been put forward by the government and they have provided some data for that. I don't think we I'll really know until the insurance companies get into the discussion.

Typos"The amount of money it will get is fixed, regardless of how much it spends".Lend = spend

Right now, it cant do that because the bishop wont allow them to solicit the hospital employees. The new regulations will require them to do it, so the bishop can no longer prevent it.Richard Doerflinger objects to that:

These organizations may voice an objection to the coverage that violates Catholic moral teaching, but insurers will ignore this objection and offer that coverage to the organizations employees anyway, without a rider or extra payment. In short, the federal government will insert itself between the religious organization and its own employees to make sure that, in President Obamas words, womens health coverage includes contraceptive services no matter where they work. Obviously this proposal raises grave moral concerns for anyone who thinks religious organizations have a right to conduct their internal life consistent with the teachings of their faith. We hope this approach will ultimately be rejected by lawmakers in favor of a policy that truly respects the religious freedom of these organizations.http://americamagazine.org/blog/entry.cfm?blog_id=2&entry_id=4930

What the USCCB wants:

If President Obama wishes to respect religious institutions that serve the poor, he will recognize them as authentically religious and give them an exemption. Then we can move on to discuss the religious freedom rights of insurers, other employers, and individuals who want a plan that does not violate their beliefs.

Mr. Gallico believes the administration may issue a final rule explaining the unacceptably unanswered questions about this hypothetical compromise before election day. Fine--the question for Mr. Gallico is simple: what month and day will be accept that the President has not kept that promise and not acted before election day. What is Mr. Gallico's deadline for when the President has waited so long that he can avoid ANY ELECTORAL CONSEQUENCES for breaking his promise, a promise that is already is unacceptable (to the self-insured, to religious groups that must not be forced to accept Mr. Gallico's moral theology calculus, and for other reasons). What is your deadline? Remember that the rulemaking process allows the President unlimited discretion to change the rule until the very final day--so even if he begins rulemaking to do x (he literally has not done so), and lets the public comment on it, there is absolutely no requirement, none at all, that the final rule say x. If the final rule is not out by election day, there is zero requirement that it ever become law, or in any particular form. So what is your deadline? If your answer is, you don't mind if the process runs after the election, when the President is no longer accountable, then stop telling John that the President may keep his word before the election, because you are defending support of the President even if he runs the process out until he has no accountability, none whatsoever. If your answer is that the President must finish the process by October 15, fine. But if you state no position on that, your present status is support of the President, which necessarily means supporting him even if he does not finalize any rule before the November election. Until you set a pre-election deadline that's what you are asking people to do, write the government a blank check to force everyone to agree with the moral cooperation analysis of Grant Gallico or be fined and punished.

Anitra: I see you're quite anxious for an answer from this Mr. Gallico character. I've finally heard back from him, and, in response to your query, he proposes the following deadline: February 30.

As I suspected.

Unless they have already done all the work on this and have it all stored on a computer ready to print out, I think this is more like a 6 months project to get to a final draft to issue for formal comments. During that time they need to nail down whether the insurance companies will go along with providing free contraception and the mechanics of how to do it - and then have listening sessions with the stakeholders, including USCCB, before issuing a draft for public comments. Public comments requires 2 months and evaluating comments and revising the draft probably another 3 monthsOn that schedule, the draft would go out for public comments in August and comments would end in October, just before the elections. The final rule could be adopted at the beginning of January. If there is a new President, he would probably put a hold on all recently adopted regulations pending review. So, To the extent it affects the way anyone votes, their decision will probably be based on the draft sent out for comments.qGiven the amount of criticism that has been based on lack of detail in he Federal Register, I think hey will want to be sure he comments draft is bulletproof before they release it.

"Jim Pauwels, I suppose because 85% of employees already have contraception included in their health benefit plans."But not, I assume, with no co-pay requirement, at least in the majority of cases.But that 85% of employees already have it covered supports my belief that the new regulation is a solution in search of a problem.

"Right now, it cant do that because the bishop wont allow them to solicit the hospital employees. The new regulations will require them to do it, so the bishop can no longer prevent it."Is this true - that insurance companies will have the right to *actively solicit* employees of Catholic institutions, using the enrollment lists provided by the employer, in order to push contraception, for financial reasons? I had not seen that active solicitation was part of the plan. That seems to me pretty morally objectionable (if you believe that contraception is morally objectionable). That would strengthen the bishops' case considerably.I had assumed that the employee would initiate the request.If contraception is the financial no-brainer for insurers that is being alleged here, then I would expect that insurers would have been flooding young female employees of all their clients, not just the Catholic clients, with contraception solicitations. Granted that I am neither young nor female (although I am married to someone who is younger and female and whose career has mostly been with large corporations with decent benefits plans), I've never heard of this happening.Suppose, for the sake of conversation, an employee receives the insurance company free-contraception email blast, buys a contraceptive product online, takes it, and becomes gravely ill. That sounds like the kind of thing insurance companies, which in my experience don't lack for legal counsel, would wish to avoid.

JIm Pauwels, I believe all contraceptives require a doctor's prescription. Presumably you take the prescription to a drug store or send it to a mail-order pharmacy and they bill the insurance company. The Federal Register says that the insurance company will "offer contraceptive coverage directly to the employers plan participants (and their beneficiaries) who desire it, with no cost-sharing."THis is a change from the Hawaii plan, which required the employer to notify employees where to go to get contraception. Some people (USCCB ?) objected to requiring the employer to do that. To respond to that, HHS said that the insurance company would offer contraceptives to the employees.

Doerflinger explicitly rejected the Hawaii arrangement because of the referral policy. I also believe CHA let the administration know such a setup was unacceptable.We've been over the actuarial studies several times, Jim. Along with the experience of large group policies that added contraception coverage, they show that insurers incur no additional long-term costs by offering free contraception coverage.

John H - there is a difference between "offer" and "solicit". The former could simply mean, "fulfill any requests that come in from employees". The latter encompasses active promotion. If I were the chief executive of a Catholic institution (and my views on contraception align with the church's), I would have a moral objection to supplying a list of employees to a 3rd party so it could actively solicit to give away contraception. That seems to take the Catholic institution into the realm of immediate cooperation with evil. Conceivably, it could be immediate cooperation under duress, which would mitigate the Catholic institution's culpability. Cf. the description of immediate cooperation at what is quickly becoming one of my favorite little landing pages.http://www.ascensionhealth.org/index.php?option=com_content&view=article...)

If I were the chief executive of a Catholic institution (and my views on contraception align with the churchs), I would have a moral objection to supplying a list of employees to a 3rd party so it could actively solicit to give away contraception.-- Jim PauwelsYou don't have to do that. They already have the list of people you told them to insure under your contract. Those are the people they will notify.

"They already have the list of people you told them to insure under your contract."Certainly - because I gave it to them. That I gave it to them earlier, during the most recent open-enrollment period, doesn't seem to make any moral difference. That I gave it to them for some other reason, knowing that it would also be used for this reason, doesn't seem to make any moral difference.

My recollection has been (at least some) Amish individuals were exempt from Social Security taxes because of their religious objection to any kind of insurance - but that Amish employers were not exempt from paying Social Security taxes on their employees. I hunted this down this morning and found this Supreme Court decision:Congress has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. In 1402(g) Congress granted an exemption, on religious grounds, to self-employed Amish and others.[11] Confining the 1402(g) exemption to the self-employed provided for a narrow category which was readily identifiable. Self-employed persons in a religious community having its own "welfare" system are distinguishable from the generality of wage earners employed by others.Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burden incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.U.S. v. Lee, 102 S. Ct. 1051 (1982)http://www.ssa.gov/OP_Home/rulings/oasi/45/SSR82-44-oasi-45.html

Jim Pauwels, I suppose it depends on how great an evil you believe it is that the insurance company will use the list to notify your employees that, if they wish, it will pay their costs for contraception.You are giving them the list in order to obtain insurance for your employees so there is no formal cooperation. I would think that the good of providing insurance for your employees would outweigh any remote cooperation you might see in it. But that is a decision you would have to make.

Weve been over the actuarial studies several times, Jim. Along with the experience of large group policies that added contraception coverage, they show that insurers incur no additional long-term costs by offering free contraception coverage.You've "been over" them only the sense of quoting a few sentences about them, not in the sense of describing or having any idea what their data and methodology was. In any event, if those studies were well-done and accurate, you just proved that the mandate is completely superfluous, or even that it has no conceivable purpose other than to coerce religious objectors. After all, if what you say is true, everyone (employers, insurance companies) outside of religious objectors would be happy to provide contraceptive coverage without any mandate.

If contraception is the financial no-brainer for insurers that is being alleged here, then I would expect that insurers would have been flooding young female employees of all their clients, not just the Catholic clients, with contraception solicitations. Exactly. And employers would virtually all be doing likewise. No one who is defending the administration has any answer to that point.

Oh, Stuart. You're persistent. I'll give you that. For the moment, let us forget the documented fact that according to experience and actual actuaries, contraception coverage is at least revenue-neutral for insurers. What if the reason insurers didn't offer it for free was that, in concert with drug manufacturers, they knew they could make a little extra money on it? That seems the simplest explanation to your query.For the record, a huge percentage of health-care policies include contraception. Something like 80 or 90 percent. Has either of you ever negotiated a group policy? Perhaps insurers include contraception as a matter of course, and group purchasers must opt out. Maybe brokers are urged by insurers to push contraception coverage. I doubt you know.

Stuart: I have no obligation to verify the methods of the several actuarial firms who have confirmed what I guess you're denying again. They are actuaries. They set the bloody tables. They say it costs insurance companies nothing to offer contraception cover, and in the long run it may save them money. Of course it doesn't take an actuary to understand why such coverage could save employers money (lost productivity). I don't know why this is difficult to accept. The largest group plan in the United States added contraception coverage in the middle of the fiscal year -- after the terms of the policy has been set. The insurers who covered those employers were offered a period of redress during which they could lodge complaints that the added coverage presented a financial burden none did. There is nothing left to complain about except that insurance companies didn't behave how you think they should have given this information. As though the insurance market is just like the produce market. Give it up, Stuart. The data do not support your theory.

Grant, that's all fine, but the more you argue the point that providing contraceptive coverage is at worst cost-neutral, the more you're proving that a mandate is completely pointless except for the purpose of coercing religious objectors.For the record, a huge percentage of health-care policies include contraception. Something like 80 or 90 percent. Well, if that's true, the marketing of contraceptive coverage has already worked remarkably well, and employers have indeed signed up in overwhelming numbers. In fact, pretty much the only holdouts would have to be those employers that have serious moral concerns or religious objections. So you've just basically argued that a mandate can't accomplish anything other than forcing conscientious objectors to go along.I take it then that you would strenuously object to the whole idea of mandating something when the only people whose conduct would be forcibly changed by the mandate are your fellow believers.

What I just said there explains why the Obama administration wouldn't barely allow any exemption for religious objectors. After all, a broader exemption would mean that the mandate wouldn't accomplish anything -- no extra contraception coverage would result if you exempted the only people who weren't already providing it.

would barely . . .

Grant is also helping to illustrate why the mandate will likely not survive legal scrutiny. If 90% of restaurants in America already serve pork with the only exceptions being Jews and Muslims, then if you bring forth a federal mandate to serve pork and refuse to provide a religious exemption beyond the narrowest one possible, it looks all the more like specifically targeting those religions.

Of course it doesnt take an actuary to understand why such coverage could save employers money (lost productivity).Maybe it does save money, but it most certainly does take an actuary to see why. It's far too simplistic to compare the cost of contraception with the cost of pregnancy. You'd also have to know rates of substitution and elasticities of demand absent coverage, takeup rates given coverage, pre-existing rates of pregnancy and how those rates change in the presence of coverage, abortion rates, etc. That's just to start. Then you'd have to balance in how much it would cost if some employees shifted away from condom usage and hence acquired more STDs (which cost something), or how many employees would get breast cancer, stroke, etc., based on increased contraceptive usage (which in turn would be affected by other risk factors that make contraception more dangerous, such as smoking). You may be entirely right that contraception saves money, and that hence the mandate has no purpose beyond violating the conscience of objectors, but to suggest it's a simple question is wrong.

"Weve been over the actuarial studies several times, Jim"I'm not debating the findings of the actuarial studies. It makes intuitive sense (financially) that fewer pregnancies may mean fewer expenses for the insurance company.

According to the studies of real-life actuaries, I am right that contraception coverage is for insurers at least cost-neutral. I didn't say that one need not be an actuary to do actuarial work. I meant that it takes little more than common human reason to understand that workers who get pregnant eventually become less productive as a result of the pregnancy and then maternity leave. Just as one can understand why insurers would prefer to cover women who don't get pregnant over those who do because having babies ends up being more expensive than not having babies.

" I suppose it depends on how great an evil you believe it is that the insurance company will use the list to notify your employees that, if they wish, it will pay their costs for contraception... I would think that the good of providing insurance for your employees would outweigh any remote cooperation you might see in it. But that is a decision you would have to make."John H, I agree. Note that the substantial degree of judgment you're describing here: "depends on how great an evil you believe it is ... I would think the good outweighs ... a decision you would have to make." These are judgments that the Catholic employer (or any employer) is able to make under the status quo, in which the employer and the insurer enter into a private contract that includes the terms and conditions of contraceptive coverage. If the employer has a moral objection to contraception, she can negotiate to exclude it. If she has an objection to her employees being solicited for it, she can negotiate a non-solicitation policy.That arrangement seems appropriate to me, because it allocates the moral agency where it belongs. If the employee wants to use contraception, she's morally responsible for that decision. If the employer wants to cooperate in it, then under the status quo, she's freely chosen to cooperate, and bears whatever moral responsibility that entails. If the insurer, for some financial reason or some other reason, wants to actively solicit the employer's employees to utilize contraception, then the appropriate measure of moral responsibility accrues to the insurer.Under the President's proposal, the employee's responsibility remains, but the moral freedom of the employer is taken away. If the insurer is required to actively solicit, then its freedom is also taken away. I can see that the President's accommodation would put an employer who strongly opposes contraception in a moral bind.I believe that the bishops, in their Taco Bell franchisee scenario, have a point.

I can see that the Presidents accommodation would put an employer who strongly opposes contraception in a moral bindSticking to non-profits for now (hospitals, universities, charities):If the government announced that it would set up a program that would pay the cost of contraception for anyone who has a job but doesn't get free contraception from their employer's insurance, would that mean that I shouldn't hire anyone because giving them a job would qualify them to receive free contraception? Should I fire all my existing employees?I don't think so. Essentially, that is what the government is doing when it uses insurance companies to pay the cost of contraception for those employees. You, as the employer, have no control over that and, I would say, no moral responsibility for it.

Just as one can understand why insurers would prefer to cover women who dont get pregnant over those who do because having babies ends up being more expensive than not having babies.Right, but that's still a simplistic and naive way to view the issue. Covering contraception doesn't necessarily mean all that much reduction in the number of women who get pregnant in the first place. To understand this requires one to know that 1) many women of childbearing age want to get pregnant; 2) many women of childbearing age are going to use contraception whether it's covered or not (one study suggests that subsidizing contraception increases the usage rate by a mere 1% to 1.8%); 3) many women of childbearing age are just going to switch from using condoms to using the subsidized contraception, which means greater expense without much (if any) reduction in risk of pregnancy; 4) some women for whatever reason don't particularly want to get pregnant but aren't going to use contraception even if it's covered; and 5) even if there's a tiny increase in pregnancy from not covering contraception, some of those women will abort, which doesn't cost the insurance company anything. Anyway, let's grant that the actuaries are right in all of their estimations here. Now you've just proved that the mandate is completely unnecessary except for the purpose of violating objectors' conscience. After all, you still can't come up with any theory as to what else a mandate could possibly accomplish if contraceptive coverage saves money and nearly everyone is already doing it. The only thing left for a mandate to do is force your co-religionists to violate their conscience. Why wouldn't you be a bit more upset about that? Why be a pawn for the administration on this issue?

"If the government announced that it would set up a program that would pay the cost of contraception for anyone who has a job but doesnt get free contraception from their employers insurance, would that mean that I shouldnt hire anyone because giving them a job would qualify them to receive free contraception? Should I fire all my existing employees?"Nobody's talking about firing or not hiring anyone. There are two ways I can think of to keep the employers well out of it. One is to set up a new government entitlement - free contraception for all. Employment status doesn't matter. It wouldn't depend on employer cooperation: the employer doesn't provide any lists or help with enrollment in any way. Women would get their free contraceptives some other other way - through public health clinics, or through gynecological practices (although that would set up a new set of problems for Catholic practicioners), or Social Security offices, or some other way. Maybe they would just show up at the pharmacy with the prescription; the pharmacy rings it up at no charge; and the pharmacy bills HHS. Sounds simple enough.The other way is to maintain the status quo, in which the employer freely negotiates with the insurer, and no special classes are defined for religious institutions. Under the status quo, the employer is still saddled with trying to discern how proximate or remote the cooperation with evil is in providing contraceptive subsidies to his employees, but at least he's free to make that discernment as best as he can. There's a lot to be said for freedom. The putative disadvantage to maintaining the status quo is that there would not be a no-charge contraception benefit for all women. But I've made no secret of the fact that I'm absolutely fine with that state of affairs. (In fact, I'd be inclined to go in the other direction and invent a new "sin tax" - let the state tack on a 200% surcharge on every pill sold. I'd bet the states' fiscal houses would be in order in no time.)

You're Freudian slip is showing if you're equating contraception with sin.

Jeanne - there is nothing Freudian about it, and it's not a slip. Of *course* contraception is a sin.

Yes, let us grant that actuaries know more about this than we do. But you misunderstand my position. I don't have a settled opinion of the mandate. I don't think it's irrational, given the policy goal as supported by the advice of independent medical experts. I found its original iteration objectionable for reasons I've already repeated dozens of times. I believe this one to be imperfect, but an improvement in that it addresses two of the bishops' and other Catholic groups' major complaints: that religious groups would have to contract and "pay for" services contrary to Catholic teaching; and that any compromise could not involve the employers in a referral scheme. The revised proposal satisfies those objections. If the rumors are true and HHS is going to exempt self-funded health programs, it will be much improved. But I don't see Obama, given his policy commitments, letting any Catholic group that mostly employs and serves non-Catholics off the hook. Incidentally, this is not about conscience, not at the institutional level. Institutions don't have consciences. People do. And if a Catholic group is forced by law not to contract and pay for contraception services, and they do not have to refer for such services, then the cooperation is quite remote, and therefore licit, when weighed against the greater good of providing health coverage to workers.

I dont think its irrational, given the policy goal as supported by the advice of independent medical experts. The question isn't whether it's "irrational" from a secular perspective, but whether a Catholic should be in any way supporting a policy that pretty much everyone already follows -- except for religious objectors, who are the only ones left whose behavior could be affected by the mandate. religious groups would have to contract and pay for services contrary to Catholic teachingIf that was your ground of objection, how does it not equally apply to the suggested revision? Under either proposal, 1) employers buy a health insurance policy, and 2) insurance companies provide an employee with contraceptive coverage. No one has explained how it makes any moral difference whether the insurance company goes through the transparent charade of doing (2) as a "free supplement" or "rider" or whatever you want to call it. (2) still ineluctably goes with (1), neither one ever appearing without the other.

Whites and blacks in the United States already have a collective birthrate that is less than replacement. All the talk of contraception is at least partly motivated out of an unspoken (of course) desire that fertile Hispanics start having fewer babies. Maybe that's the reason for not exempting Catholic agencies/organizations -- lots of Hispanic Catholic employees.

I'll leave the genocidal theories to you.But as to the moral-theological one: I've explained this several times. That you disagree or refuse to accept the distinctions as developed by the Catholic moral tradition does not mean "no one has explained how it makes any moral difference." If the bishops are after a situation in which Catholic institutions that employ and serve the public are able to avoid all entanglements with evil, they will be disappointed in the end. So the question is: At what point is the cooperation with evil remote enough to be licit? There is a moral difference between agreeing to a contract that includes payment for a benefit that is contrary to the institutions religious beliefs and agreeing to a contract that excludes that benefit. Just as there is a moral difference between directly referring for contraception services and not having to refer at all. Every degree of separation between moral agent and evil outcome matters. One does not have to favor the mandate to see that when weighed against the proportionate good of providing health care to employees, the very remote material cooperation required by the mandate is not much different from the remote material cooperation hundreds of Catholic organizations have accepted voluntarily by paying insurance companies at all.

Oh, there's no genocidal intent whatsoever, and a careful or even not-so-careful reader would have noticed that I didn't say that. People on your side certainly think of themselves as purely altruistic and benevolent in helping Hispanics hold down the number of children. But that's who the policy has to be aimed at -- no one could possibly be worried that whites, for example, are the ones who need more contraception. As for the moral-theological distinction you're trying to draw, it still isn't convincing. You say, "There is a moral difference between agreeing to a contract that includes payment for a benefit that is contrary to the institutions religious beliefs and agreeing to a contract that excludes that benefit." But this supposed difference is utterly semantic. The second contract "excludes that benefit" ONLY by pretending to be unaware of what's going on. In both contracts, the employer agrees to a contract that involves payment, and the insurance company ultimately provides the same package of benefits. If one objects to providing any of those benefits, it is no consolation that the objectionable benefit is going to be provided under the complete fiction of a separate and "free" arrangement.

You have a habit of staking out a position and then defending it by saying no one can disagree with it -- not honestly, not intelligently. It's unfortunate and unnecessary, because you alienate interlocutors who might otherwise be disposed to engage you. And "people on your side"? Stop making assertions about the minds of people you don't know. It's presumptuous.Here is one reason whites might favor the mandate: most prescription contraception is not all that cheap. A white friend of mine was telling me that her insurance provider classifies her prescription contraception drug as Tier 3, and it costs her $50 a month. Now, that isn't impossible for a lot of people to cover. But for a lot of people it's not easy. So for her it's not just a question of "needing" more contraception, but of being able to access it for free.It is not a complete fiction according to Catholic moral theology because intent means something to Catholics -- as does the level of duress. The awareness of the arrangement finally supports the view that this is licit remote material cooperation with evil -- because no one involved is under the impression that the Catholic Church is contracting for benefits it deems immoral. The bishop of Madison decided that it was more important to provide health coverage including contraception than to take the morally pure route by self-funding the diocesan employee health plan, which would have been quite costly. He weighed the goods. That's how Catholics do moral theology.

There are lots of things that I'd like to get for free. A smart-phone, for example, which I don't have because of the expense. Why don't I get a federal mandate? The bishop of Madison decided that it was more important to provide health coverage including contraception than to take the morally pure route by self-funding the diocesan employee health plan, which would have been quite costly.The fact that he made this tradeoff isn't relevant when the question is whether to require such a tradeoff in the first instance, or whether your efforts would be better spent lobbying against the mandate instead of defending it as kind-of OK after all.

And look, if someone decides that they have to have the most expensive contraceptive pill that is still patented, rather than settling for the $9-a-month pills at Walmart or Target, that's just one of the choices that we have to make in life, just as we might have to choose between the $50 designer shampoo at the salon vs. the $3 bottle of generic shampoo at Walmart. Life is tough.

"There is a moral difference between agreeing to a contract that includes payment for a benefit that is contrary to the institutions religious beliefs and agreeing to a contract that excludes that benefit. Just as there is a moral difference between directly referring for contraception services and not having to refer at all. Every degree of separation between moral agent and evil outcome matters."FWIW, I agree with this.Stuart, you and I agree about many things, but my own opinion is that the argument that there is essentially no moral difference the original mandate and the proposed accommodation, is not a winning one. There is a real moral difference between the original plan and the revised plan as Grant has outlined here. To that extent, the accommodation is more beneficial to Catholic institutional employers.Also FWIW, I think the bishops and others are correct when they point out that the accommodation creates new problems of its own. But the term "shell game" has been thrown around a lot by detractors, even in some cases by bishops, and I really don't see that it is a shell game. I've tried to explain in some of my comments why that is so. There are still many things to dislike about the mandate and the accommodation. Even if you grant that the accommodation solves one narrow issue to some extent, it still poses fundamental religious liberty problems; religious liberty belongs, not just to institutions, but to individuals, including the proprietors of businesses and other organizations that employ others. Also, alleviating the concerns of Catholic hospitals and universities by shifting it to Catholic insurers and institutions that self-insure is the equivalent of treating one patient of smallpox by transferring the virus to another patient and then taking credit for the brilliant cure of the first patient. And beyond the religious-liberty issues: that the government can mandate what two other parties must privately agree to do is offensive to me. That the government can order a third party to give away a good or service for free is offensive to me. That the government is trying to solve exigent social problems by promoting immorality rather than virtuous behavior is profoundly offensive; that it is attempting to entangle third parties in its official program of immorality is even more offensive; and that it wants to include Christian organizations in its webs of immorality is most offensive. And referring to contraception as "women's health" rather than what everyone knows what it really is - contraception - is an exercise in Newspeak. I thought we took sledgehammers to the Berlin Wall so that we wouldn't have to be subject to that kind of thing.

An analogy: Republicans come up with a plan to mandate that all insurance policies must cover a particular drug (call it X) that is made solely from organs harvested from political prisoners in China, and that is used to remove wrinkles from one's forehead. Some people object, including on religious grounds (we shouldn't be subsidizing drugs made in that way).So Republicans offer a compromise position: Insurance plans don't have to literally include Drug X. Instead, anytime an employer buys an insurance plan, the plan must merely be accompanied by an offer of "free" Drug X to any insured person who asks. Who would be happy with that compromise solution? Who would think that it insulated oneself (as an employer) from being involved with an insurance plan that provided such drugs to one's employees?

Stuart: Problem solved: You can get a free smartphone from any U.S. mobile carrier. Enjoy.I wouldn't want to curtail your lobbying efforts, but I do think the bishops conference will have to start availing itself of the moral-theological resources provided by the Catholic tradition.The $9/month pills available at Target, etc., are not the same as the more expensive ones. They are older models. They work differently because they contain much higher doses of hormones, and therefore have stronger side effects, and greater potential to cause cancer. The difference between the cheap high-dose pills and the more expensive low-dose pills is nothing like the difference between generic and name-brand shampoo.

Stuart: you seem to believe that there is a universe in which moral agents may easily engage in morally pure acts. The Catholic tradition developed categories of cooperation precisely because that universe is a fantasy, and to help us figure out when and how it's permissible to cooperate with evil.

I rather doubt that Stuart thinks that. I think he thinks only that the federal government was not created to force us to cooperate with evil in ways we'd rather not.

The difference between the cheap high-dose pills and the more expensive low-dose pills is nothing like the difference between generic and name-brand shampoo.OK. But I have a novel idea: how about using condoms, which don't involve any dangerous hormones at all, and which are very cheap, and which have the added bonus of protecting against STDs? (Yes, there are a few women who take artificial contraception for real medical reasons, but no one objects to that, and Humanae Vitae expressly approved such medical treatments.)

It's not a few, Stuart. It's something like 40 percent of women who use prescription contraceptives. And the failure rate of condoms is about 15 percent.

Then what is the burden of the word "insulate," John? If one doesn't like being forced to cooperate with evil (by the government or by free-market capitalism), there's always the monastery.

Yes, there is that option. Too, there is the option of hoping (and working) for a government that is less prone to force such things on us. (And of course there are many such things, including lots that are much more serious than cooperation in the provision of contraceptives, that our government has a way of forcing.)

Its not a few, Stuart. Its something like 40 percent of women who use prescription contraceptives. And the failure rate of condoms is about 15 percent.40%? The overwhelming majority of those are for situations like, "I'll take birth control pills to prevent pregnancy, and oh isn't it nice that the menstrual cycle is a bit more regular or less crampy." Its not a few, Stuart. Its something like 40 percent of women who use prescription contraceptives. And the failure rate of condoms is about 15 percent.The failure rate of anything not used properly (or at all) is going to be high. That's not the condoms' fault.

Evidence for the usage claim: http://www.guttmacher.org/pubs/Beyond-Birth-Control.pdf That report is pretty comical for how it presents information like the following:

Reliance on birth control pills for noncontraceptive reasons is highest among pill users who are teenagers. In fact, teens are more likely to report using the pill for noncontraceptive purposes than for birth control: Some 82% of 1519-year-olds who use OCPs say they do so for noncontraceptive reasons.

This is all written with a straight face, as if there's no possible reason that 15 year olds might not tell the full truth about why they were really using contraceptives. In other news, the research arm of a condom company might issue a report about the marvelous benefits of condoms, in which it might say 82% of teenage boys who carry a condom in their pockets are overwhelmingly doing so to 1) use as a water balloon for practical jokes, or 2) use as a glove when handling raw meat. Hmm, why would we ever think that something was being oversold there?

And yet, Stuart, that is their failure rate. The pill has a failure rate too. It's just a lot lower.Your knowledge of the female mind is impressive in its range. I hope you'll forgive me if I remain unpersuaded by it.

Well, you could look at what the survey actually says (86% report using contraception for -- surprise -- contraceptive purposes), while some of those claim that there's a supplemental benefit as well (mostly the reasons I stated).And as for the women (often teenagers) who claim that there's no contraceptive purpose at all, you could exercise some critical thinking, as journalists sometimes do, and ponder whether teenagers always tell the full truth about their sexual activity.

Grant -- the "failure rate" you quote for condoms is because people don't use them often enough or correctly. That's like passing along the "failure rate" for a diet, without noting that virtually of the "failures" are because people stopped eating the diet and pigged out on ice cream instead.

Stuart, do you think anyone disputes that prescription contraception is more effective than condoms?Actually, don't answer that. Answer this: Are you capable of commenting here without being rude? If so, show me. If not, get lost.

Grant, Stuart is not the only one being rude.

John: You haven't been blogging here long enough to understand the scope of the problem. Everyone is permitted ill-tempered moments. And it would be one thing if he was intermittently nasty. But Stuart has taken a condescending, aggressive tone here for years. It's his default tone. He's been warned again and again. And I've had enough.

Grant, I merely have hewed to the tone set by several of the bloggers here, including yourself.

Yes, you've said that, and I'm sensitive to the criticism. That's why I've tried to do better. Yet you continue to spray insults all over the blog. I don't know why you can't make your points without resorting to ad hominem attacks on your interlocutors. No one wins arguments that way.

John Schwenkler: "Grant, Stuart is not the only one being rude."Does that qualify as a "tu quoque argument" or just a "everybody else is doing it so it's okay" argument?

Neither one, David -- it's only an observation, not meant to discredit claims about anyone else's rudeness (which is what a tu quoque would have done).

Maybe it's a "remove the log from thine eye" argument. Aaaaanyway, here's Mario Rizzo, economics professor at NYU, explaining why it makes no sense to object to the original (current) rule, but to be happy with the (as yet hypothetical) compromise:

http://thinkmarkets.wordpress.com/2012/02/12/morality-as-word-magic/Mora... as Word MagicFebruary 12, 2012by Mario RizzoI am disturbed by the Obama administrations revised rule regarding the provision of birth-control products and service under the new health insurance system they have created. The original rule required all employers, particularly for our purposes institutions affiliated with the Catholic Church, to provide insurance that covers birth control without copayment , coinsurance or deductible.The Church hierarchy and others protested that they should not have to provide insurance that reimburses or pays for activities they regard as immoral. So then after a politically troublesome firestorm, President Obama and Secretary of Health and Human Services Kathleen Sebelius announced a revised rule.The revised rule requires all employers, particularly for our purposes institutions affiliated with the Catholic Church, to provide insurance that covers birth control without copayment, coinsurance or deductible. What a relief.Re-read that sentence. It is exactly the same as the previous rule. Can it be?Previously, the Catholic institutions would have had to pay for the birth control coverage in the insurance. Now they have been relieved of that by their masters. The insurance companies will be required to provide the coverage free of charge.. . . But we need not worry about this. Secretary Kathleen Sebelius assures us that the coverage is costless. She said that experience tells us that the savings in child birth and child services will more than offset the costs of birth-control pills and sterilization. But, to be on the safe side, she said we shall just assume that it offsets the cost.But that was true (presumably) under the old rule. Under the old rule the Catholic institutions would be paying nothing extra for the coverage. Under the new rule the Catholic institutions will be paying nothing extra for the coverage. I am repeating myselfPerhaps there will be some different paperwork for reimbursement. Yes, I insist. The government could at least include that as a token of the difference between the two rules.What foolishness this is.But lets go back. Was the Catholic hierarchy wrong in objecting to the old rule because under the Sebelius actuarial calculus they would not have been paying (extra) for it all along?!Lets look more closely at that. Is the objection paying for coverage or providing access to coverage in the course of employment at a Catholic institution? The fact that I do not pay the provider of such services does not mean that I am not responsible for letting him on my property, so to speak. In any event, people need not take jobs at institutions whose values they do not share.There is more. Of course the institution is paying for the services. A woman gets a prescription for birth-control pills. She fills out a form for reimbursement. The insurance company goes into the pot of money into which the premiums have been paid and takes out the appropriate amount and pays her. Simple. The institution pays.It is true that the woman did not, in a counterfactual state of the world, seek reimbursement for birth services and child medical services. That is where the savings come in. But that is not what is happening. What is happening is that she is getting reimbursed for birth control out of the premiums paid by the institution.

It's a long post, and there's more at the link.

There is more. Of course the institution is paying for the services. A woman gets a prescription for birth-control pills. She fills out a form for reimbursement. The insurance company goes into the pot of money into which the premiums have been paid and takes out the appropriate amount and pays her. Simple. The institution pays.It is true that the woman did not, in a counterfactual state of the world, seek reimbursement for birth services and child medical services. That is where the savings come in. But that is not what is happening. What is happening is that she is getting reimbursed for birth control out of the premiums paid by the institution.Studebaker, that presentation is not factually correct.I've answered this claim several times in different posts here, so I'll be very brief. The employer buys a contract that excludes contraception. Whatever money it pays for the contract becomes the property of the insurance company. It goes into a bank account with about $14 billion dollars of other money that the insurance company collected in premiums that year (Aetna is the example). None of that money belongs to the people who paid Aetna. No employer has any conrol over how Aetna uses the money once it is paid in. Nor do they share in Aetna's profits or losses.

The employer buys a contract that excludes contraception. Why do you think that will have any meaning when the contract has an automatic accompaniment by an offer of "free" contraception? Clearly, the insurance company will charge the company the amount of money that is estimated to cover 1) all the expenses contemplated by the contract, and 2) all the "free" contraception covered by the automatic accompaniment. Even if that amount of money is the same or even lower than what the company would have been charged by excluding "free" contraception, the fact still remains that the employer is being charged for the estimated cost of contraception, and the insurance company is still paying out claims for contraception. And the coverage of contraception is made possible only by the employer's offer of health insurance in the first place. This doesn't and cannot make any difference to the moral calculation. If you objected to the original (i.e., current) rule, it doesn't make sense to let the proposed (and as yet hypothetical) modification off the hook.

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