Last week, in a tour de force of intellectual humility, Matthew J. Franck treated First Things readers to a catalogue of my confusions. He didn't take kindly to my analysis of Cardinal Timothy Dolan's response to HHS's new proposals for the contraception mandate. First, Franck claims that I am "confused...about what the government actually announced." Second, he says that my analysis of the moral culpability of religious employers is unreliable because I am "confused about the economic reality of insurance." This confusion, Franck informed me via Twitter, is profound: He sees "no sign from you either of an argument, an ability to read, or an understanding of arithmetic." Given those impairments, I may not be able to formulate a successful response to Franck's confident critique, but I beg your indulgence as I give it a shot.
Let's start with the Franck's first complaint. Do I have the foggiest idea of what HHS actually announced? Here's how I summarized the latest proposals: "The new rule scotches the previous iterations much-maligned four-part definition of 'religious employer,' and proposes arrangements to make sure religious employers including colleges, hospitals, and charities wont have to pay for or refer for contraception coverage in their employee health plans." Later in the post, I wrote that "any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate."
Franck alleges that I conflated the categories of religious employers proposed by HHS: "Gallicho fails to understand that the new, tax code-derived definition of 'religious employer' is perfectly irrelevant when it comes to the new second category, and insists, quite wrongly, that 'any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate.'" But that isn't my only error, according to Franck. No, I've made "several mistakes at once":
First, the tax codes borrowed language does not apply to "any religiously affiliated employer that has nonprofit status,' but to a much tighter category of churches and their 'integrated auxiliaries." Second, the employers in the new second category who are nonprofits that 'hold themselves out as religious' do not get to 'opt out' at all, if by that is meant that their employees are not covered by the mandate; they get the new (essentially fake) "accommodation."
What is he talking about? When HHS floated its initial proposal for the contraception mandate, it counted as "exempt" only those employers that had religious inculcation as their purpose, that employed and served "primarily" co-religionists, and that operated as a nonprofit. I joined the bishops and many others in criticizing that definition of "religious employer."
A few weeks later, the Obama administration announced a new proposed rule that would "accommodate" religiously affiliated employers that failed to qualify for the narrowly defined exemption by allowing them not to include contraception coverage in employee health plans. Instead, the insurance company would offer employees of such institutions separate contraception coverage at no cost. (At the same time, the administration floated a series of complex arrangements that might address the situation of "self-insured" companies that pay directly for employees' medical care; those have been distilled in the latest HHS proposals.)
So, on the one hand there were "exempt" employers (dioceses, parishes, parish schools) -- their employees would not be eligible for the proposed free contraception coverage. And on the other hand there were "accommodated" institutions (hospitals, colleges, charities) -- they wouldn't have to contract for, pay for, or refer for contraception coverage, but their employees would be able to receive it at no cost from a third party. That difference is preserved -- but clarified in such a way that could expand the range of exempt employers -- in the most recent proposed rule, and that's what upsets Franck. He believes that there is a significant moral difference between a religious employer whose employees will not receive contraception coverage at all and a religious employer whose employees will receive contraception coverage from a third party. He thinks the only true "opt out" is available to fully exempt employers, whereas I see a moral significance in an "accommodated" employer's ability to choose not to contract for contraception coverage. I could have been clearer about this in my post, but in the final analysis, it makes little difference to the moral calculus because neither exempt nor accommodated institutions will have to include contraception coverage in their employee health plans. I agree with Bishop Robert Lynch that this arrangement amounts to "a distinction without difference." More on that in a moment.
Back to Franck: "When the Obama administration claims that employers will not 'fund' the contraceptive coverage provided by insurers," he alleges, "it speaks falsely." He continues:
When it [the Obama administration] claims that the free contraceptive coverage can be afforded by the insurer because cost-savings will result from improvements in womens health and fewer childbirths, the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and womens health in general. The insurer is not being told to lower its premiums because of the cost-savings on procedures and ailments already covered; it is being told that it can put the cost-savings toward the expense of providing contraception. The existing premiums, paid by the employer, will be the funding source.
Leave aside, for the moment, the fact that actuarial studies have already shown that adding contraception coverage doesn't end up costing insurers extra -- it's not relevant to the moral question. What matters is who pays for it and why. Franck says that "the existing premiums, paid by the employer, will be the funding source." Unfortunately for his argument, that's not how health insurance works.
When a group like, say, EWTN pays monthly premiums to its insurance provider, the insurer does not take the money, deposit it in an account used only for the TV network's premiums, and then pay EWTN employees' medical bills out of that account. Rather, the insurer pools EWTN's payments with those from other customers. So when an EWTN employee gets an X-ray, the money that pays the bill may or may not come from EWTN. It may come from a company whose insurance coverage includes abortion. The insurer's risk assessment of its policyholders determines whose monies fill the pools. If the same insurer covers EWTN and NARAL, the two organization's monies will be mingled. Indeed, it's the pooling of premiums that provides the incentive for insurers to offer contraception at no cost to their customers. (In 2002, the Kaiser Family Foundation published a useful primer on health insurance [.pdf]. If you have trouble getting your head around our strange health-insurance system, it's well worth reading.)
So, pace Franck, when it comes to determining who's really funding contraception for employees of accommodated organizations, "the existing premiums, paid by the employer" will not "be the funding source." It may be one of the funding sources. It may not. The point is, there's really no way to know, because insurance companies are in the business of spreading risk. It would be like trying to determine whether any of Matthew Franck's federal tax dollars ended up paying for an abortion for a rape victim. Once he's paid taxes, that money is no longer his. It's collected with other people's money and dispensed by someone else. He's not on the hook for what's done with that money unless he's willed something evil. That is, of course, the point of money. Did the change I got from Starbucks this afternoon come from a drug dealer? I don't know. Was the banana I had this morning picked by a child? I hope not, but did I try hard enough to find out? Did the money I saved by not buying organic cover life-saving medical treatment for a loved one? An electric bill? An iPad mini? The Catholic tradition accounts for the complexity of moral agency in a fallen world. We are never disentangled from sin. So the tradition helps us think through these difficult questions: What did I intend? What was the effect? Could it have happened without me?
Franck doesn't give those questions their due. He seems to suggest that every time someone pays an insurance company he has illicitly cooperated with evil, regardless of intent. After all, major insurers cover abortion for at least some of their customers. (Would he also say "self-insured" religious employers that engage the services of an insurance company to administer their health plans are morally culpable [most do]?) Franck says the latest contraception-mandate proposals are no good because they still involve religious employers in morally illicit arrangements. But everything the Obama administration has proposed is designed to distance the religious employer from the coverage it objects to. It frees religious employers from having to say, "Yes, I want to include contraception coverage in my employee health plan." It allows "self-insured" religious employers to say, "No, we won't pay for contraception out of the monies we've saved to cover our employees' medical care." It transfers responsibility to a third party. If an employee of an "accommodated" religious institution avails herself of the contraception provided by a third party, her employer is no more responsible than it would be were she to use her wages to purchase condoms. In the United States, benefits are considered part of an employee's compensation.
Franck is hung up on whether the HHS proposals will actually work, whether insurers will recoup the upfront costs of providing contraception, even to people who aren't in their risk pools. But who cares? For "self-insured" companies, not a dime from their health-care kitties will pay for contraception. For companies that pay insurance premiums, they won't have to contract or refer for contraception coverage. Might their premiums end up paying for services to which they have religious objections? Yes. But they already are. That they don't intend to fund such services is what frees them from moral culpability.
And that's precisely why I believe the latest proposals for the contraception mandate pass moral muster. If Franck wants to counter my moral argument, he'll have to acquire a clearer understanding of how insurance works.