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Marty Lederman on the USCCB on the Latest Proposed Accommodation

I asked Georgetown Law Professor Marty Lederman, who organized a wonderful conference on religious liberty and the contraception mandate last fall, what he thought about the bishops' "Nationwide Bulletin Insert" on the issue. He has graciously prepared a few remarks, which he agreed to share on dotCommonweal. His remarks follow:Cathy: Thank you for sharing with me the February/March 2013 Nationwide Bulletin Insert that the U.S. Conference on Catholic Bishops has recommended for widespread distribution to parishioners over the next two months. You have asked me what I think of the claim in the Bulletin Insert that the recently revised proposed rule of the Department of Health and Human Services on insurance coverage for contraception services would force the employees of Catholic agencies to accept coverage for themselves and their children that violates their Churchs teaching on respect for human life.You are correct that this apparent emphasis on the religious liberty of employees (rather than of employers) is a newly emerged emphasis in the USCCBs criticism of the HHS Rule. As I explain below, I think it is likely based on a misreading of the HHS proposed rule, and that the rule does not, in fact, present any threat to the religious freedom of employees who accept their Churchs teaching on respect for human life.A bit of background is in order. As you know, the primary objection to earlier versions of the HHS proposed rule was that it allegedly would have required certain employers, principally Catholic social service organizations, to breach their religious obligations by coercing them to be complicit in actsnamely, the use of certain forms of contraceptionthat they view as sinful. This claim of an alleged substantial religious burden based on such a complicity-with-evil rationale was tenuous from the start: Under no version of the HHS rules would an employer have affirmatively chosen to provide contraception coverage to its employees, let alone reasonably be perceived as encouraging the use of such drugs by its employees. The rule would not have required employers to speak approvingly of contraception, nor to refrain from discouraging the use of contraception by their employees and others. And any decision to receive reimbursement for such use from the insurance plan would have been wholly attributable to the independent and private choices of the employees themselveschoices not even known to the employer, let alone legally or morally attributable to it. Moreover, the oft-invoked argument that an employer would be morally complicit in an employees independent choice to use contraception by virtue of the employers arguable financial subsidy of such a choice was highly dubious, too, since this alleged subsidy of contraceptive use would not have been materially different from the case in which others use the employers tax dollars for the same purposesor, more to the point, when employees foreseeably use their salary payments (like health insurance, an element of employee compensation for labor rendered) in order to purchase contraception. (Theres no better summary of the issues underlying this complicity with evil question than your own lucid explanation at the beginning of this video of one of our conference panels last September, which Id strongly encourage your readers to watch.)

Notwithstanding the weakness of such claims of a complicity-based burden on religious exercise, the HHS and other Obama Administration agencies have now bent over backward to further accommodate objecting religious employers. Under the new proposed rule, published in the Federal Register on February 6, 2013, all an employer would have to do is self-certify that it is a nonprofit religious organization that has a religious objection to providing coverage for some or all contraceptive services, and then it would not be required to contract for, arrange, subsidize, or include contraceptive coverage in the insurance policy that it must make available to its employees. Its employees would instead receive contraceptive coverage, at without employee cost sharing or additional premiums, through an entirely separate individual health insurance policy that must be provided by the policy issuer (the insurer), rather than by their employer. (According to HHS, issuers would find that providing such contraceptive coverage is cost-neutral, at worst, because they would be they would be insuring the same set of individuals under both policies and would experience lower costs from improvements in womens health and fewer childbirths. 78 Fed. Reg. 8463.)Having thus had the purported religious objections of nonprofit employers very generously accommodated by the Obama Administration, the U.S. Conference on Catholic Bishops has now apparently shifted the focus of its concerns to an alleged burden on the religious liberty of the beneficiary employees themselves.Cardinal Timothy Dolan puts the point this way: It appears that the government would require all employees in our accommodated ministries to have the illicit coveragethey may not opt out, nor even opt out for their childrenunder a separate policy. As you note, this idea is now reflected in the bulletin insert the Conference has recommended that parishes distribute to their parishioners; that bulletin describes the new HHS proposed rule as forc[ing] the employees of Catholic agencies to accept coverage for themselves and their children that violates their Churchs teaching on respect for human life.A parishioner reading these statements might conclude that HHS is preparing to require employees to subsidize, if not use, contraception, even when they have religious objections to doing so. Of course, the proposed rule does nothing of the sort, and to insinuate otherwise would be absurd.So what possibly could be the problem from the perspective of employees religious freedom?The explanation appears in a letter sent to all members of Congress last week from Archbishop William Lori, Chairman of the USCCBs Ad Hoc Committee for Religious Liberty. Archbishop Lori describes the alleged coercive element of the new proposed rule in terms similar to Cardinal Dolans statement: [W]hile the mandate for coverage of abortion-causing drugs, contraceptives and sterilization is hailed by some as a victory for womens freedom, it permits no free choice by a female employee to decline such coverage for herself or her minor children, even if it violates her moral and religious convictions.What is the source of this so-called coercive element? Archbishop Lori seizes upon a single adverb in the proposed HHS rule: The insurance company of the objecting religious employer, he explains, will impose the full mandate automatically on the organizations employees and their female children, using the personal information that the employer had entrusted to them. Archbishop Lori presumably is referring to proposed subsection 45 C.F.R. 147.131(c)(2) of the new rule, which would provide, in pertinent part:A group health insurance issuer that receives a copy of the self- certification [by an objecting employer] with respect to a plan for which the issuer would otherwise provide coverage for any contraceptive services required to be covered . . . must automatically provide health insurance coverage for any contraceptive services required to be covered . . . and identified in the self-certification, through a separate health insurance policy . . . , for each plan participant and beneficiary.It is plain, I think, what HHS intends by this requirement of automatic separate contraceptive insurance coverage: As an administrative default rule, the issuer would be obliged to put employees on the books for purposes of establishing their eligibility to make use of the additional, separate policy, so that each such employee may request reimbursement for contraceptive servicesor notwhenever she sees fit.Cardinal Dolan suggests that this form of allegedly mandatory insurance coveragei.e., mere eligibility for reimbursementis itself illicit, even if the employee never invokes it or receives any reimbursement for contraceptive services. This is, to say the least, a deeply counterintuitive notion. You would know much better than I, but I find it hard to imagine a reading of Catholic religious doctrine under which the state forces a Catholic to act illicitly when it so much as offers her a benefit that she would decline to use on religious grounds.In any event, even if there were some theological basis for concern about insurance coverage for an employee who will never make use of it, there is no reason to believe HHS intends to prevent an objecting employee from opting out of enrollment in the separate plan, if she so chooses. The proposed HHS rule itself, for example, proceeds to explain that [a]n issuer providing contraceptive coverage . . . must provide to plan participants and beneficiaries written notice of the availability of the contraceptive coverage. Proposed 45 C.F.R. 147.131(d); see also 78 Fed. Reg. 8463 (Such coverage would be offered at no charge to plan participants and beneficiaries . . . .). This implies what a reasonable reader would naturally have assumed in any eventnamely, that an employee not only may decline to use such insurance coverage (for contraception reimbursement), but may decline the coverage itself, if she sees fit to do so.To be sure, HHS probably did not even consider the prospect of employees asking for opt-outs from the separate contraceptive services coverage, because (as explained above) the agency would have had no reason to assume that employees who choose not to seek reimbursement for contraception would find coverage in the abstract to be religiously problematic. But if there are any such employees, they can file comments seeking clarification from HHS on the opt-out question (the deadline is April 8, 2013), and HHS can then specifically consider the question in light of the governments interests in both accommodating religious objections and promoting public health and gender equality by enhancing coverage of important preventive services for women without cost sharing. In the meantime, there is no reason to accept Cardinal Dolans apparent assumption that HHS intends to force illicit coverage upon objecting employeeslet alone to require such employees to use contraception in violation of their religious precepts.Accordingly, it appears to me that there is nothing to this newfound objection predicated upon alleged concerns about infringements of employees religious liberty. I hope I am wrong about this, but, quite candidly, it smacks of desperationof being unwilling to take yes for an answereven when the government has gone much further than was necessary in order to accommodate religious objections.    

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Professor Lederman hasn't commented on the employee's dependents. As we have discussed in another thread, the point that AB Dolan, B Lori and the bulletin insert may be bringing up is whether employees should be able to control whether their children can obtain free contraception.Childen up to 26 can be covered under these policies. Starting at age 18, physicians cannot discuss thir health care wih parents. I believe that in some states children under age 18 can get a prescription for contraceptives without a parent's knowledge.Along with the issue of whether an employee can opt-out for herself, the USCCB my want to bring up the issue of children when it submits its comments to HHS. This may be an issue that HHS hasn't considered and which it my be willing to clarify-perhaps by providing that employees can opt-out children below 18, or some other age. The way this is presented in the bulletin insert:"And even with the latest accommodation, a federal mandate still forces people of conscience to facilitate insurance coverage of sterilization, contraception, and abortifacient drugs, and forces the employees of Catholic agencies to accept coverage for themselves and their children that violates their Churchs teaching on respect for human life."Makes it sound as if he proposed regulations published by HHS are final. In reality, HHS has published this draft and asked for comments by April 8 - after which the comments will be analyzed. A final version of the regulations will be issued later his year (before August).

Is a person freer when she is given a choice and may say "yes" or 'no," or when someone else intervenes to keep her from choosing at all? I wonder what American women themselves, even women who think contraception is sinful, think about that.In other news, I was delighted to read in the National Bulletin Insert that the bishops are calling for a second Fortnight for Freedom this summer. I can hardly wait.

I think the next "Fornight for Freedom" will be between when Benedict officially has resigned and before the beginning of the conclave.But I could be wrong.

Thanks to John Hayes for pointing out the issue of dependents. Unless Professor Lederman has some inside information on what the accommodation will actually entail, it seems to me that Cardinal Dolan's speculation of mandatory coverage is as well-founded as Lederman's speculation that there will be an opt-out. But it's worth noting that Dolan is an actual stakeholder in this dispute, and if I were in his position, I might decide that, while Lederman's speculation on this particular item is not unhopeful, neither is it dispositive. I might thank him for his speculation, and then actually work with the parties that are in a position to determine the outcome of this regulation to ensure that this particular loose end actually gets tied up to my satisfaction (or to a minimum of my dissatisfaction). To that end, I might launch a national postcard campaign.And why shouldn't there be an opt-in, rather than an opt-out? Five strokes of the keyboard is all HHS needs to do to make it happen, and those five key presses may make some moral difference.

The purpose of the bulletin insert is to get people to sign postcards to be sent by the Church to their Representative and Senators. The postcard reads:"DearThe new Congress should come together to respect life and religious freedom. Please support and strengthen laws that (1) prevent federal funding and promotion of abortion, And (2) protect rights of conscience in healthcare. Government must not force Americans to violate their religious or moral beliefs on respect for life when they provide health care or sponsor or purchase health coverage. As your constituent, I would appreciate a written response telling me how you will vote on these matters. "The instructions are to get the people to sign the cards in church - not take them home

Hmmm....so by the bishops' logic, if my health insurance covers treatment for drug addiction, I'm somehow being coerced to become a drug addict?

I could not sign the proposed postcard. It's one thing to lobby legislators. It's another thing to demand litmus tests. Professor Lederman's explanation is persuasive, in my view. There would be no real material cooperation required of the employer, whether the proposed policy covers children or not, for the employer has nothing to do with the policy other than reporting who works for his or her business. the employer has to report this information to the IRS etc.

Here's the model language for the letter to be sent by the insurance company to each insured employee and dependent"(d) Notice of availability of contraceptive coverage. An issuer providing contraceptive coverage arranged pursuant to paragraph (b) or (c) of this section must provide to plan participants and beneficiaries written notice of the availability of the contraceptive coverage, separate from but contemporaneous with (to the extent possible) application materials distributed in connection with enrollment (or re-enrollment) in group coverage of the eligible organization for any plan year to which this paragraph applies. The following model language, or substantially similar language, may be used to satisfy the notice requirement of this paragraph: The organization that establishes and maintains, or arranges, your health coverage has certified that your group health plan qualifies for an accommodation with respect to the federal requirement to cover all Food and Drug Administration-approved contraceptive services for women, as prescribed by a health care provider, without cost sharing. This means that your health coverage will not cover the following contraceptive services: [contraceptive services specified in self-certification]. Instead, these contraceptive services will be covered through a separate individual health insurance policy, which is not administered or funded by, or connected in any way to, your health coverage. You and any covered dependents will be enrolled in this separate individual health insurance policy at no additional cost to you. If you have any questions about this notice, contact [contact information for health insurance issuer].I guess the question is what happens if the employee contacts the inurer and says she doen't want he coverage for herself and doen't want her dependents to get it either - or that she wants some to get it but not othersIt appears from the first paragraph that each dependent gets a letter from the insurnce ompany - it's not one signle letter to the employee.

There was a time that U.S. Catholics had to prove their loyalty to the U.S. government. After all, we had a loyalty to a leader, who lived in a foreign territory. "Long live the pope. His praises sound again and yet again. His rule is over space and time. His throne the heart of men. ..." I wonder if this focus on Fortnights for Freedom and religious liberty may appear to be an overreach by the Catholic hierarchy. It may backfire and set us back to a previous time when we were suspect.

This whole brouhaha has entered the realm of the ridiculous. The offering of something illicit does not restrict the freedom to refuse it.The bishops need a whole new set of lawyers.

John H. --The parents will know about the daughter's use of contraceptives when they get the bill from the druggist ,

Ann Olivier wrote "The parents will know about the daughters use of contraceptives when they get the bill from the druggist"It's free. No copay, no bill from the druggist.

I ask now the same question I asked, to no avail, on this website and America's, when the Affordable Care Act was challenged by the bishops because they asserted that it would provide for abortion coverage. People, listen up: Group health insurance plans cover procedures that are abortion-related. Most abortions are performed in the first trimester by a procedure -a D&C- most women have had at least one D&C in their lifetime (it's not only to abort an embryo) it is done for a variety of gynecological reasons. So, then many, if not, most group health insurance plans cover this procedure. Why have not the bishops been demanding that we all leave our health insureance plans because they cover abortions? I have promised myself I would never comment on this question again. But seriously, we have gone from the ridiculous to twilight zone territority here. Our bishops are embarrassing.

From the original post:"You are correct that this apparent emphasis on the religious liberty of employees (rather than of employers) is a newly emerged emphasis in the USCCBs criticism of the HHS Rule."This seems to be a polite couching of, "They've moved the goal posts." I'm sure there are some good, practical reasons that it would be helpful for a lumbering, inflexible bureaucracy like HHS to have all the objections at once, so it can address them all in a single motion. On the other hand, HHS set up these frustrating multiple iterations of act/react with its ham-handed crafting of the original regulation.

LisaI see the bishops logic being, with respect to Catholic teaching, the mandate requiring a health plan to provide, free of charge, narcotics for recreational use.Professor Lederman did not have a problem with the original mandate and now we learn, surprise, that he does not have a problem with the revised mandate. This thread seems to have a the sun rose in the east today aspect to it.

From the original post:"Notwithstanding the weakness of [the bishops' original set of objections], the HHS and other Obama Administration agencies have now bent over backward to further accommodate objecting religious employers. "And a little bit later:"Having thus had the purported religious objections of nonprofit employers very generously accommodated by the Obama Administration, the U.S. Conference on Catholic Bishops has now apparently shifted the focus of its concerns ..."While Professor Lederman apparently doesn't restrain his admiration for the Obama Administration in this affair, it occurs to me that it would have been even more admirable had the Administration not set up the original regulation in so churlish a manner as to provoke the crisis in the first place and require an accommodation. Even more admirable would have been to skip the entire HHS mandate.

Jim Pauwels"it occurs to me that it would have been even more admirable had the Administration not set up the original regulation in so churlish a manner as to provoke the crisis in the first place and require an accommodation. Even more admirable would have been to skip the entire HHS mandate."Surely, the administration had good reasons for the mandate, e.g., women's health, maybe decreasing abortions. To some (not you) the mandate is seen as a deliberate attack on the Catholic Church. Comments like "We did not pick this fight" by a few prominent Catholics contribute to that mindset and are not productive.

Jim P is upset about the lack of precision in the HHS mandate. But we should send Postcards about liberty to Congress when two cardinals from both coasts are being deposed at the same time for criminal activity. And more to follow! how out of touch do the cardinals think we are?

Let's not forget that the 18 and 26 age limits, and medical secrecy between a woman and her doctor are also government constructs. You wont find them anywhere in Catholic discussion about the family. The parent-child relationship changes over time but it is never rent. Further, medical secrecy is one of the most damaging concepts foisted by our government on families as anyone with a mentally ill adult relative can surely testify.

John Hayes --Won't the parents at least get a statement of some sort from the drug store? (This is getting just too ridiculous.)

Ann Olivier, i get a monthly report from my insurance company showing what they have paid to the druggist during the past month. If a daughter is living at home i suppose her report would be mailed tnere and a parent mght be able to see it.

Although I haven't seen anything in he proposed regulations requiring the insurance company to send reports to anyone. If everything is free, perhaps there isn't any reason for reports.

"Surely, the administration had good reasons for the mandate, e.g., womens health, maybe decreasing abortions."To the extent that is true, well and good; but the exceedingly narrow religious exemption it carved out is the genesis of the issue.

"Lets not forget that the 18 and 26 age limits, and medical secrecy between a woman and her doctor are also government constructs. "True. Don't we consider children "adults" earlier in our religion than we do in secular life? My understanding is that a girl as young as 14 years of age is old enough to be married in the Catholic Church. I personally think that is much too young, but would have to say that, if one is old enough to marry, one is old enough to do pretty much anything without parental consent.

What's gob smacking is that all these detailed arguments, such as Lederman's here, Kaveny's earlier, and others, in Commonweal and elsewhere, are never answered directly, point by point, or in their substance, by anyone representing the USCCB, or any of the bishops usually making the headlines.I guess the bishops are all too busy complaining about how they're excluded from the election of the next pope. Oh wait, that's not happening either!How do you say "episcopal bubble" in Latin???

Jeanne,As I see it, Catholic bishops all the way up to the Pope don't answer challenges point by point because the challenges include empirical facts, which the bishops have a way of celestially ignoring when the facts aren't consistent with the bishops' own world views. It's why science is often such a threat to their positions. And so long as bishops give lip service to natural law ethics it's bound to be this way, because natural law ethics is ideally based on facts.

The Bishops, and indeed the Catholic Church, are simply putting children of God in a trap...no abortion, no contraception. Something Jesus mentioned "putting burdens on people you yourselves have been unable to bear" when speaking to the Hebrew hierarchy.They are welcome to these restrictions, and i will support them! when they commit to financially supporting parents, and children through age 18. Every single child.I would guess, that this being the counter-offer, we would never hear from the USCCB again.

"They are welcome to these restrictions, and i will support them! when they commit to financially supporting parents, and children through age 18. Every single child."Theresa - great news: they already support this. Cf Catholic social teaching, as applied in innumerable lobbying efforts and communications to Congress and other government officials to retain and expand social safety net programs.By virtue of your baptism and confirmation (if you have received those sacraments), the bishops now reasonably expect you to support their efforts on this issue of Catholic social teaching: the contraception mandate and its religious-liberty repercussions.

I would prefer that the cardinals and bishops--anxious to protect Catholics from "complicity" by policies that provide contraception, abortion--would begin by insisting that our government cease making citizens "complicit" in illegal wars, torture, drone attacks,and illegal renditions by requiring payment of income taxes to support those wars and their violations of the Geneva accords while providing no legitimate ways for Catholics and others to withhold the portion of their taxes that support those heinous crimes.