A bishop's cautious optimism about the mandate.
Grant Gallicho February 10, 2013 - 11:23am
Yesterday, Bishop Robert Lynch of St. Petersburg, Florida, posted his initial -- and positive -- impressions of the latest revision of the contraception mandate. This is significant not only because Lynch is a member of the U.S. Conference of Catholic Bishops -- and its former general secretary -- but also because he's on the executive board of the Catholic Health Association, a group we haven't heard from since the new proposals were announced. He explains that his assessment has been aided by the "careful opinion" of CHA's general counsel. So you might take his opinion as a sneak preview of CHA's.
Bishop Lynch begins by praising the Obama administration's response to criticisms raised by the U.S. Conference of Catholic Bishops: "Clearly, the Administration has been desirous of listening to and accommodating the concerns of Catholics and other people and institutions of conscience, like myself, who had real worries about the regulatory language in possession up till last Friday." (You'll recall that in 2011 Lynch threatened to cancel his diocese's employee health plan if the contraception mandate didn't get fixed.) Indeed, he says one would be hard-pressed to find another group whose concerns about the Affordable Care Act were taken more seriously. "There have been moments when I think we should consider ourselves lucky that they are still talking to us. "
What has this conversation produced?
First, Lynch says the bishops' concerns about the earlier four-part definition of "religious employer" have been addressed by the new proposal, which uses the definition long established in the federal tax code. "I am personally at peace with this."
Second, Bishop Lynch addresses the new proposal's distinction between exempt employers and accommodated ones. The idea is that neither Catholic parishes nor Catholic charities will have to contract for, pay for, or refer for contraception coverage for their employees. But employees of Catholic dioceses, parishes, and parish schools will not, it seems, be eligible to receive free contraception from third parties. So those kinds of employers are "exempt," while religiously affiliated institutions (hospitals, colleges, charities) are "accommodated" -- their employees can get free contraception coverage. Cardinal Timothy Dolan claims this arrangement "appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic charities." Bishop Lynch disagrees:
As a former teacher of English (long ago), I find any discussion of the difference between exemption and accommodation to be interesting because as I look them both up in the OXFORD DICTIONARY OF THE ENGLISH LANGUAGE I am led to believe that it is a distinction without a difference. I find this especially true when studying the manner in which HHS would allow other religious entities for whom the mandate presents an issue of conscience to decide that they were worthy of the accommodation. Not many other entities of American life are treated with this level of trust (and this would be especially true of the tax code) and some thanks should also be due to the Administration for trying to find a solution which might satisfy us and other constituencies who think otherwise.
Lynch doesn't expand on this point, but one might surmise that when he says there's little difference between an exempt employer and an accommodated one, he's talking about the moral calculus. In both cases, the institution does not have to arrange for or pay for its employees' contraception coverage.
Third, Lynch offers some parting thoughts on two related questions: Who speaks for the church? And whom does the church speak to?
Cardinals, archbishops and bishops are certainly entitled to their opinions (as I hope I am amply demonstrating in this blog post) but since the Second Vatican Council, our collegial voice has almost always been the elected leader of our episcopal conference, currently Cardinal Dolan. His opinion is certainly not binding on every Catholic, but should be accorded greater respect than any of us. But he speaks for the bishops who elected him, as did his predecessors and as will his successors, not necessarily for the whole Church.
He's spoken up on a related subject before. In 2010, the Catholic Health Association and the president of the U.S. Conference of Catholic Bishops -- then Cardinal Francis George -- found themselves at loggerheads over the abortion-funding mechanism in the health-care reform bill. With the USCCB, George couldn't support the bill because he thought it allowed for federal funding of elective abortions. The CHA didn't see it that way. George seemed to suggest that those who disagreed with the USCCB on that point were undermining episcopal authority. As George told John Allen:
If the bishops have a right and a duty to teach that killing the unborn is immoral, they also have to teach that laws which permit and fund abortion are immoral, George said. It seems that what some people are saying is that the bishops cant, or shouldnt, speak to the moral content of the law, that we should remain on the level of abstract principles.
Is it true that there's no room for legitimate disagreement between bishops and non-bishops about the moral effects of a particular piece of legislation? Soon after, Bishop Lynch responded:
Ive been associated in one way or another with the episcopal conference of the United States since 1972. I have never before this year heard the theory that we enjoy the same primacy of respect for legislative interpretation as we do for interpretation of the moral law.I think this theory needs to be debated and discussed by the body of bishops, he said.
Which leads back to the pointed conclusion of Bishop Lynch's blog post:
As far as I know, at no time up to yesterday (Friday) since the new HHS regs were made available for review and public comment, has anyone from the conference structure consulted with legal counsel for other entities in the Church (hospitals, college and universities, Catholic Charities) to ask their read on how this proposal will affect their ministry. Yet the USCCB statement, it seems, would have one believe that the above mentioned entities might fairly have their noses out-of-joint because they are being given consideration under the accommodation and not the exemption.
But, having just returned from a CHA board meeting, Lynch reports, that is not the case. Now, I can't say whether the USCCB has been consulting with Catholic hospitals, colleges, or charities. Perhaps the bishops conference has been in touch with Catholic Charities USA or the University of Notre Dame. But if there's one outside group the USCCB ought to be consulting with as it formulates its response to the new proposal, it's the Catholic Health Association. If USCCB representatives feel comfortable speaking for CHA members, the least they can do is speak with them.
Lynch closes by asking the bishops to be more humble, to listen more, and to prepare themselves for the fact that the final regulations will fall short of perfection. "I still am grateful that more universal health-care coverage will be the first fruit of the Affordable Care Act, and I am beginning to feel that I can say to my diocesan self-insured employees, all 1,400 of them, that their moral right to health care coverage will survive this moment."