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New Contraception Proposal

The Obama administration has published a proposed new contraception rule coverage proposal for public comment. Here's a link to the proposal. I haven't yet had a chance to read through it, but it seems to address both religious nonprofits not covered by the original rule and self-insured plans by requiring third parties to provide contraceptive coverage to employees of all nonprofits who object to contraception coverage on religious grounds. It will be interesting to see how the Catholic bureaucracy reacts. I will be posting more detailed thoughts once I have a chance to digest the proposal.UPDATE: Here's a link to reaction to the proposal from Rick Garnett and Tom Berg, both at MOJ. Their posts also collect some other reactions, mostly negative. [FURTHER UPDATE: Via the invaluable David Gibson in the comments, here is the surprisingly positive reaction by theCatholic League.]My reaction is more favorable than either of Tom's or Rick's. While I suppose I agree with Tom that the rule doesn't change all that much regarding the exemption for churches, it does get rid of the four-part definition that lots of people were complaining about and that, frankly, did not make a lot of sense. Anyway, that was never the main event. The real game is the "accommodation" for non-churches with religious objections to contraception. The accommodation would require the insurer to provide free contraceptive coverage to the employees of nonprofit employers with religious objections to providing coverage for contraception without charging the employer or requiring the employer to take any affirmative steps to facilitate the employee's enjoyment of the contraceptive coverage. The idea here is that the contraceptive coverage pays for itself because (as an actuarial matter) access to free contraception reduces the health care costs for which the insurer would otherwise be on the hook. In the case of self-insured employers who hire an outside administrator (usually a health insurance company), it would assign this obligation to the administrator, who, again, could not pass the costs on to the employer. Here, the actuarial, self-funding argument does not work for the third party administrator, because the savings from contraceptive use go to the self-insuring employer, not the administrator. The government would therefore have to compensate the administrator, and it proposes to do this by reducing the fees the administrator must pay to participate in the insurance exchanges. There is no plan for self-insured employers who do not hire an outside administrator, but the proposal says this is likely to represent a very small number of plans. And, of course, the only burden this would place on them would be to hire a third party administrator.Tom is right that some people have objected to this accommodation from the beginning, but I have yet to see a good explanation for how the accommodation infringes on employers' religious freedom that does not involve heroic efforts at locating the burden in some kind of but-for causation that somehow applies to insurance benefits but not pay. As a doctrinal and predictive matter, I think it is highly unlikely that any of the Catholic entities that challenged the original rule will get very far challenging this accommodation on either First Amendment or RFRA grounds. And, normatively, I think that is the right result. What a religious objector would be asserting in challenging the accommodation is a right, not only to opt out of contracting for coverage for contraception as part of an employer health plan, but also a right to prohibit the insurer with whom the employer contracts from separately contracting to provide contraceptive coverage to the employer's employees.All that said, in reading through the proposal, I am struck by how simple it would be to accommodate for-profit employes who object to the contraception mandate on religious grounds. Now, to be clear, I am not at all convinced that even the original proposal violates the religious freedom of such employers. But, in light of the mechanisms the government has chosen to put in place to accommodate nonprofit employers, it seems to me to be a trivial administrative burden to expand the accommodation to all employers who object.The government answers this in its proposal by pointing out that the accommodation under Title VII for religious employers to engage in religious discrimination distinguishes between for-profit and non-profit entities, restricting conscientious exemptions to the latter. I am not convinced by the analogy to religious discrimination. In the case of discrimination, it is the act of discrimination that we think is harmful to the person who is discriminated against, and expanding exemptions beyond the narrowest possible domain we think might be required by our obligation to protect religious or associational freedom expands the domain where people can be harmed by discrimination. That is, the zero sum quality of the antidiscrimination context exerts a kind of hydraulic pressure to craft exemptions as narrowly as necessary. But that is not the case here. We don't much care how employees get their access to contraception. We just want them to get it if they want it. In creating this accommodation, the administration has crafted a workable mechanism to allow employees to get their contraceptive coverage at no cost, without significant (in my opinion) involvement by employers. I don't see the rationale for not expanding that mechanism as far as possible, even including for-profit employers with religious objections. I mean, why not?

About the Author

Eduardo Moisés Peñalver is the Allan R. Tessler Dean of the Cornell Law School. He is the author of numerous books and articles on the subjects of property and land use law.



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@ Mark: As to the Taco Bell exemption, I continue to think this is a matter of moral imagination. When we hear the question, do we imagine ourselves in the role of employers or employees? The first might think, "When the gov't sets up a system of health care coverage based on medical criteria, why should my employees have access to aspects of it that I (the employer) find objectionable? They only get that coverage at all because of me, after all." Alternatively, the employee might think, "Why should my employer get to decide that I can't have certain kinds of insurance coverage because of his/her religion? Doesn't MY religious freedom (not to mention my medical decision-making,) count for anything? Or did I lose my freedom of religion when I took a job at Taco Bell?" I see myself with the employees on this one. Of course, in theory, Catholics make decisions regarding civil law on the basis of the common good, not on the basis of religious doctrine. Given the demonstrable public health benefits of access to contraception, (including lower abortion rates when women have access to free reliable contraception, ) Catholics should be tripping over themselves to support contraceptive coverage as a matter of civil law, given reasonable accommodations as the admin. has offered. The point of commonality between the birth control pill and Viagra is this: either one might be used in keeping with current Catholic sexual teaching or not. The pill for non-contraceptive purposes is perfectly in keeping with Catholic doctrine. Using Viagra for procreative and unitive ends in sex is fine, but if used for other sexual purposes is not. If we expect women to get a note from their doc. certifying their moral intention to get the birth control pill, we should expect the same for men asking for VIagra. Or is it only women who have to justify their sexual health care to the magisterium's satisfaction?

I look forward to some knowledgeable analyses. My first skim-through suggests:* HHS proposes to drop three of the prongs from the previous four-prong test to determine which institutions qualify for a religious exemption* Religious universities, health care providers and charitable endeavors are able to self-certify that they qualify as a not-for-profit institution with a religious mission* For the latter institutions that self-insure, the third party benefits administrator will need to contract with an insurance provider to provide a separate policy that covers contraception for the client's employees; the third party administrator is to be charged a reasonable fee; and the fee may not be passed along to the client.

Basically it seems to say that women who work for places that object can purchase their own coverage without cost. I do not see how anyone can object to this. As far as the Catholic church and contraception go it is an irony that what has been arguably the greatest health benefit of the modern era is opposed by an institution whose leaders are not arguably models of virtue. Any objective historian knows that the reason Paul VI was persuaded to go against the recommendation of his birth control commission was the apparent threat to infallibility of the church. The irony is that very few hold to infallibility in the church anymore. No wonder so many women are angry at a leadership who militates against their well being. These false religious liberty bishops have impinged on the basic liberty of women.

Guess what: The new contraception rule will still not please the USCCB and the colleges/universities that have law suits. Will they drop their lawsuits? How much do you want to bet that their lawyers will find a loop hole?

Hi Jim -- with respect to the religious-employer exemption, here's what my MOJ-colleague, Tom Berg, had to say:"Pretty much the same proposals as the administration had brought up before, with tweaks. The proposed rule would eliminate the offensive language explicitly excluding employers from the definition of "religious employer" if they serve or employ people outside the faith. But it doesn't change the reality much, because it retains the criterion that the employer fall within IRS rules as a church, integrated auxiliary of a church, part of an association of churches, or religious order. So soup kitchens run by churches are now within the exemption, but not independent faith-based soup kitchens, or Catholic Charities or Catholic hospitals. They are covered by the "accommodation" the administration is proposing, to have the insurer pay for contraception without, according to the administration, shifting any cost to the employer and without requiring employer referral or including contraception in the employer insurance contract. That proposal, of course, has satisfied some people concerned about nonprofits' religious liberty but has failed to satisfy others. And the proposed rule reaffirms that for-profit entities are not accommodated at all."

At first blush, it's a huge improvement. What it still doesn't address is the for-profit, Catholic (or other) employer who has moral objections to providing contraception, the woman who owns the Taco Bell, for example.

"They are covered by the accommodation the administration is proposing, to have the insurer pay for contraception without, according to the administration, shifting any cost to the employer""According to the administration" suggests some skepticism by the author. I think he basic point for both insured and self-insured plans is that employees will get free contraception from a third-party insuror without cost to the employer. The proposed regulations provide that, in the case of self-insured plans, the third-party insuror will be paid by the insurance exchanges by forgiving some of the fees they would otherwise collect from the insuror on other business. For insured plans, the assumption is that insurance company will save money by providing free contraception - so does not need to be paid additionally. If insurance companies demonstrate during the comment period that that is not so, the same system of reimbursement by the insurance exchanges could be applied to them. Despite the author's skepticism, it seems feasible to structure this so that the employer does not pay for the contraception.

"Wild Bill" Donohue -- yes, him -- welcomes the proposals, and I think gets at what the proposals have improved: rules proposed today by HHS appear to go a long way toward rectifying the most problematic provisions of the mandate. Essentially, the rules provide insularity for Catholic institutions: they will not be directly involved in providing health insurance coverage for contraception, sterilization and abortion-inducing drugs.Perhaps the most welcome aspect of the new strictures is the elimination of the criteria that define what constitutes a religious institution. Gone altogether is the highly objectionable definition that excludes an exemption for those religious entities that hire and serve mostly people of other religions. As has been pointed out many times, this definition punishes Catholic institutions for not discriminating against Jews, Protestants, Muslims, Mormons, agnostics, and atheists.

So the new rules address the issues that the USCCB and other religious leaders and groups were focused on. As Kathy said, the focus now shifts to the issue of private, for profit employers. That has never been the church's issue, and I think prospects for those argument are a lot less tenable in the court of law and the court of public opinion.

Ken'''the woman who owns the Taco Bell,'' she has to first squeeze 50 employees behind the counter, and then call up a health provider and then even offer to partially pay for health care.... none now.

Do we now think that these Holy Objectors will go after IVF and vasectomies ... both of which seem to be covered by either employer-sponsored health plans or associated employee benefits programs?I suspect that more than one good Catholic who objects vociferously to contraception but can't become pregnant the old-fashioned way will secretly take advantage of IVF. And how many Catholic husbands secretly sneak off and have a bit of a snip, unbeknownst to the "little woman"?

Jim McCrea:Don't forget prescription coverage that includes Viagra. Oh, I guess that would be considering as enhancing the natural law.

Oh, yes, let's let all Taco Bell owners determine what their employees do with their lives. The last time I looked, an agreement to adhere to the employer's religious biases wasn't required to work at these places ... but maybe it will be coming.Theocracy, anyone?

David Gibson:But wait! I think I am in shock.Catholic League headline: NEW HHS RULES WELCOMEDBill Donohue comments: While many aspects of the new proposal need to be examined before a final conclusion can be rendered, the decision to expand religious exemptions, and to adopt the IRS definition of a religious institution, is a sign of goodwill by the Obama administration toward the Catholic community.

Helen - that's very funny :-)Eduardo, I pretty much agree with your analysis.Thanks to Rick Garnett for pointing us to Tom Berg's MOJ analysis.

Some people are claiming that the Fortnight for Freedom and Ad Hoc Committee on Religious Liberty were successful in pushing the latest accommodation to the HHS contraception mandate.I might agree if the two groups had not included such strident people (bishops and laity) and obvious Republican Party partisans. (I attended one of the Fortnight for Freedom rallies in Philadelphia.) I think more moderate voices within the administration influenced this decision, e.g., Obama's closest and most trusted advisers, who happen to be Catholic - Joe Biden, and now chief of staff, Denis McDonough, have on him.

It would have been so much simpler, as a matter of public policy, to put the onus on insurance providers to begin with: to have made this a mandate for them, not for employers. No group policy would have had to cover contraceptives, butsince covering contraceptives turns out to be cheaper than not covering themthe provider has to offer all its policyholders coverage for contraceptives if their employer-based policy doesn't already include it. (Some arrangement like the one that has been proposed could be worked out for self-insured businesses and institutions.) It wouldn't matter who the employer was, or why the employer might have opted for a plan that didn't include such coverage.On the other hand, I wonder how many of those who insist that business owners are entitled to the same exemptions the HHS has offered religious institutions would say that an employer who believed, for religious reasons, that antibiotics are sinful ought to be allowed to offer his employees health insurance that doesn't cover antibiotics. Very few, I suspect. This is not, then, just a controversy about religious liberty; it's also, inescapably, a controversy about contraception and its relationship to public health.

Eduardo:"I am struck by how simple it would be to accommodate for-profit employes who object to the contraception mandate on religious grounds. "In a word: NO.It has nothing to do with how simple it would be or any possible tactical/political advantage it might serve. For-profit corporate entities exist solely as creatures of the state. If the state wants them to exist on certain conditions, then it's within the state's domain to impose those conditions.If the corporation wants to reject the tax advantages of providing insurance, fine. If it wants to reject the advantages of limited liability altogether and operate as human individuals, also fine.Otherwise, to repeat: NO. For-profit corporations exist for one and only one purpose: For profit.

Some of the people who go berserk when they hear that tax cuts for the rich will pay for themselves are remarkably trusting when they hear that providing free birth control will be cost neutral or even money-saving for insurers. It would be interesting to see the detailed actuarial studies that give that conclusion. From what Ive read they dont seem to be very rigorous. And if the claim is that the mandate will save money for insurance cos. it seems more than a little dubious that greedy profiteers like insurance companies would pass up a pot of gold that is so clearly available in the view of the Feds. For hints that the evidence is more murky than the government allows:

Hi Eduardo -- I suspect we agree that Bill Donohue's endorsement doesn't tell us much about the merits of the new proposal! Seriously, though, while I realize that some dotComm readers will assume that folks like me have a mixed reaction to the proposal merely for partisan reasons, or because Obama can do nothing right, etc., I assume you know that is not the case. As I suggested, at MOJ, it is a mistake to jump to the enthusiastic reaction of, say, E.J. Dionne because the category of religious employers who are exempt from the mandate remains too narrow. Yes -- and this is a good thing -- the criteria have been simplified, and the bad ones ("serve primarily co-religionists", etc.) have been removed, but the document itself makes it clear that, in the administration's view, the category of exempt religious employers is not getting bigger (or, at least, not much). And, in my view, it *should* be bigger. I do think that the RFRA claims of the for-profit and non-exempt religious employers remain quite strong, but we'll have to see. The "cooperation with evil" questions about the accommodation are tricky ones, we agree, but -- for what it's worth -- my concern has not been so much that the mandate compels culpable cooperation with evil (maybe, in the proposed form, it would not), but with (what I take to be) the mandate's premises regarding the extent to which religious organizations, as a condition of being engaged with and in the world, should be required to be like, and should be treated like, any other organization.Also, I'm not an expert on ERISA and related matters, but I think we should wait to hear more, with respect to the various proposals for dealing with self-insured entities, about how feasible some of the floated solutions are. Best, R

Rick,Whatever you think about the wisdom of distinguishing between non-profit religious organizations and for-profit businesses for the purposes of the accommodation, you can't say the HHS rules treat the "accommodated" religious institutions like "any other organization." The HHS scheme creates three categories of employer, two of which are exempt from the ordinary mandate, each in its own way.Is it your position that there should be only two categoriesreligious institutions (all exempt in the same straightforward way) and all other employers, which would be subject to the mandate whatever their religious beliefs? Or do you think Catholic business owners should also be exempt, in which case what you called your main concern in the second paragraph of your comment would seem to be beside the point? (It was my understanding that you wanted the contraception mandate to be struck down entirely as a violation of RFRA.)

Rick Garnett wrote: "Also, Im not an expert on ERISA and related matters, but I think we should wait to hear more, with respect to the various proposals for dealing with self-insured entities, about how feasible some of the floated solutions are"Is that an issue that the bishops need to be concerned about?The proposal seems to be1. Religious Employers do not have to include contraception coverage in their employee health insurance. 2. Non-Profit Religious Organizations do not have to include contraception coverage in their employee health insurance.3. The government will arrange for employees of (2) but not (1) to receive free contraceptives, if they want them. This will not require any action or payment by the employers other than notifying their insurors or administrators not to include the coverage in their policies or plans.If the government never finds a workable way to do (3), should the bishops really care? - as long as the government doesn't adopt a scheme that does require action or payment by employers?

"Seriously, though, while I realize that some dotComm readers will assume that folks like me have a mixed reaction to the proposal merely for partisan reasons, or because Obama can do nothing right, etc.,"Rick,Is it possible that those dotCom readers may well have some grounds for such assumptions. First, it may be telling that your first entry was in the negative. Second, you are an advisor to the bishops correct? In that capacity would you not agree that too often the lawyers do a disservice to thebishops as you may be doing now notwithstanding your belated acknowledgment of the positive aspects of this decision. Many feel if the lawyers had a broader view of the law the bishops may have settled the pedophilia matter long ago. While one understands a lawyer must defend one's client there is always the greater good especially for a Christian lawyer. Moreover, as we understand that a lawyer's life may be in almost perpetual litigation is there a responsibility for the Christian lawyer to minimize polarization in favor of the beatitudes. Consequently, how much responsibility should Catholic lawyers take for the polarization in the church on these two high profile matters of our time?

Rick -- I'm sure you're right that the cases will continue. But if any of the nonprofits win a RFRA claim after this new rule, I will tip my hat to your lawyering skills. I can't even understand the claim at this point. (I can at least grasp the nature of the for-profit claimants' argument, though I don't agree with it.)

I belong to Cosmic League of the Vegetative Universe (a IRS recognized religious entity) that believes in an absolutely vegan diet and that any illnesses or diseases that are related to eating meat products are signs of a cosmic violation (sinfulness, in some vocabularies) and that any suffering from them as a result is divine justice and to treat them is to endorse their immorality. I also own the Gazillion Company which produces Essential Defense Whoozywasits, employs 10,000 people who know my beliefs, and for whom my company health insurance will not cover any of the illnesses that can be attributed to having any ingested meat. HHS regulations should protect me or else I shut down the whole company, sell the product to China, and retire to the Riviera. And my friend at Taco Bell (though he is an apostate) requests the same.

Other than the principle that the government cannot command people to go against their beliefs, the effort against contraception is a monumental act of hypocrisy by the leaders of the Catholic church. Even conservatives practice contraception. The church continues to politic at the UN to prevent contraceptives to destitute peoples while its alliance with the privileged continues unabated. Not only do we help impoverish those Jesus came for, we take their clergy who need them more than we do. These issues have to be addressed in or out of context with this phony religious liberty issue.

"women who work for places that object can purchase their own coverage without cost"Why do I suspect that our homosocial and misogynist bishops will intensely dislike this?

"Even conservatives practice contraception. " Cardinal Wuerl says that they practice it with a bad conscience, and if they are Catholics they are ready to leap to the defense of the Church's teaching even if they do not practice it.

If the US bishops are as "pro-life" as they claim to be, I think that pragmatism would dictate a more benign treatment of contraception in order to decrease the incidence of abortions.To claim that both are not to be tolerated is to be about as impractical ... and concomittantly cruel ... as one can be.

Jim--Has the number of abortions decreased since the pill? What is the empirical evidence for your point?

The Taco Bell comment from Picarello is from last year. The USCCB seems to be succeeding in keeping anyone there (or the CHA) from commenting on this while they are sorting out what position to take. "The rule proposed Friday broadened the definition of a religious nonprofit and outlined a way of walling off their money so they arent paying for the benefit, which women will still get for free under an employer health plan.But it didnt exempt businesses owned by religious people who object on moral grounds to being forced to pay for contraception, or to emergency contraceptives that they believe cause early abortions.This concept could be called the Taco Bell exemption, named for a comment made last year by Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops.He called for removing the provision from the health care law not only for Catholic employers but also for good Catholic business people who cant in good conscience cooperate with this.If I quit this job and opened a Taco Bell, Id be covered by the mandate, Picarello told USA Today.That argument is behind some of the more than three dozen lawsuits making their way through the court, and the accommodation is radically inadequate to deal with the religious liberty violations of the mandate, Duncan said.Polls find that the public was quite sympathetic to religious entities that did not want to violate their teachings but a lot less sympathetic to individual business owners who wanted their beliefs to trump public policies about health plan benefits.Reese also doesnt expect it to hold much weight in court, even amid expectations that the religious freedom issue being raised by private employers could make its way to the Supreme Court.If that is opened up, then any employer can reject to any regulation from the government based on religious beliefs, he said. I doubt the courts will accept that.Read more:, the USCCB theologian has announced he is leaving.

Lisa--Thanks, but that link does not address the question: Has the number of abortions decreased since the pill?

Has the number of abortions decreased since the pill?Mark Proska,The pill became available in 1960. Abortion wasn't legal nationwide until 1973. Did legalization result in more abortion? Quite obviously. But what role the pill played in abortion would be very difficult to determine or calculate. The problem with contraception is that it doesn't work for people who don't use it. I think it can be said with certainty that the lower abortion rate for more affluent, more educated women is because they are able to use contraception more consistently and correctly.

"Did legalization result in more abortion? Quite obviously."Can you point me to a source for that?

Interesting that the Prefect of the CDF will attend the conference for bishops. I wonder if ths will turn into a dscussion of the new contraception proposal. "Given the CDF's competence on issues of bioethics in church teaching, Mller will ostensibly remain in Texas to attend this week's seminar for bishops hosted each February in Dallas by the Philadelphia-basedNational Catholic Bioethics Centerbeforeheading to Notre Dame for a lecture Wednesday night." Bioethics center says it analyzes proposed legislation:

Lets unpack the safe, legal and rare fig leaf that Catholic Democrats have used to cover themselves. Safe? I think 50 million lost souls would disagree.And now its acknowledged, as if it were ever in doubt, that legal and rare are self-contradictory.The fig leaf is shriveling, and what lies behind is not pretty.

Here's the Bioethics Center's January Report on current legislation and litigation.

Hi Eduardo -- w/r/t your comment on 2/01 -- just to be clear, I'm not doing any lawyering on these claims. (I'm happy to admit that my skills are considerable, whether these non-profits win or lose, but I don't have any clients!) I think the claim, though, is pretty straightforward: The mandate imposes a "substantial burden" on the claimants religious exercise, and that burden is unnecessary and therefore unjustified. I realize that there are smart people who say that the "cooperation" involved is "remote," etc., but (speaking just for me) I've not been thinking of the burden in terms of "cooperation with evil." For me, the religiously motivated aspiration of an institution -- a community -- to act with integrity, and in accord with a professed religious mission and character, "counts" as religious exercise. And, at least in some cases, the mandate burdens that exercise.I suppose I won't be able to satisfy Bill Mazzella (2/01), who seems to think my thoughts about the proposed rules are connected to lawyers' and others' mishandling of the sex-abuse scandal, and so I guess I won't bother. John (2/01), the bishops should care, it seems to me, if the various possible options floated in the proposal as a "fix" for self-insured entities all turn out, on investigation, to be not-workable, because they might well wonder what will eventually happen to self-insured entities (like Notre Dame) once these options are off the table.Matt (2/01), fair enough. I should have been more precise. The proposal does distinguish, as you say, between (1) the treatment of non-exempt non-profit religious organizations with objections to contraception and (2) (for example) Hobby Lobby. I think the RFRA arguments are strong for (say) Hobby Lobby (or a small, family-owned business), but also see that the balancing that is inevitable in the accommodation-of-religion business will sometimes result in different treatment of for-profit businesses than of religious institutions. What I meant, in the paragraph you refer to, was to regret (what I take to be) a premise of the Administration's approach to this issue all along (a premise that was also on display in its handling of the Hosanna-Tabor litigation), and not to assert that the new proposal didn't make the distinction you highlight. Best, R

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