On Friday, the U.S. Conference of Catholic Bishops issued a sharp response to Thursday'sWhite House blog post purporting to clear up any confusion about how the contraception-coverage mandate will affect religious institutions. The USCCB's press release goes through the White House blog post point by point, clarifying a couple of important issues, but obfuscating several others by employing a touch of the worst-case-scenarioism that fueled the bishops' opposition to the Affordable Care Act. Let's have a look:
Claim: Churches are exempt from the new rules: Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception.Response: This is not entirely true. To be eligible, even churches and houses of worship must show the government that they hire and serve primarily people of their own faith and have the inculcation of religious values as their purpose. Some churches may have service to the broader community as a major focus, for example, by providing direct service to the poor regardless of faith. Such churches would be denied an exemption precisely because their service to the common good is so great. More importantly,the vast array of other religious organizations schools, hospitals, universities, charitable institutions will clearly not be exempt.
Does the USCCB really expect readers to believe that parishes won't be exempt? That, say, providing meals to the hungry -- even as a "major focus" -- would distract HHS from the fact that the primary function of a Catholic parish is to serve as a community of worship? That HHS would fail to notice that parishes are not for profit, that they primarily employ and primarily serve co-religionists, and that they exist to inculcate Catholic beliefs and values -- in other words, that they meet all four (far too restrictive) conditions to qualify for an exemption from the contraception-coverage mandate?
Claim: No individual health care provider will be forced to prescribe contraception: The President and this Administration have previously and continue to express strong support for existing conscience protections.For example, no Catholic doctor is forced to write a prescription for contraception.Response: It is true that these rules directly apply to employers and insurers, not providers, but this is beside the point: The Administration is forcing individuals and institutions, including religious employers, to sponsor and subsidize what they consider immoral. Less directly, the classification of these drugs and procedures as basic preventive services will increase pressures on doctors, nurses and pharmacists to provide them in order to participate in private health plans and no current federal conscience law prevents that from happening. Finally, because the mandate includes abortifacient drugs, it violates one of the existing conscience protections (the Weldon amendment) for which the Administration expresses strong support.
That the mandate will not apply to Catholic health-care providersis certainly not beside the point. There is a reason that Sr. Carol Keehan, president of the Catholic Health Association, expressed her appreciation for the administration's support for existing conscience protections. Without them, Catholic health-care providers could not do their job.What about the claim that the Obama administration "is forcing individuals and institutions, including religious employers, to sponsor and subsidize what they consider immoral"? Does the USCCB understand that taxpayers are already subsidizing contraception? Does the USCCB believe that the insurance premiums now paid by Catholic institutions for plans that exclude contraception are not offsetting the costs of plans that include contraception? Are the bishops not already subsidizing what they consider immoral by cutting checks to insurance companies that cover contraception and abortion for other clients? That is, incidentally, the same reasoning the USCCB used to lobby against passage of the Affordable Care Act.The notion that doctors, nurses, and pharmacists will, as a result of the HHS mandate, be forced to prescribe drugs they object to on religious grounds strikes me as far-fetched. Insurance companies would love it if doctors prescribed contraception with abandon -- kids cost insurers lots of money -- but how many doctors report being strong-armed by insurers to get female patients on the Pill? (I'll get to the difficult question of abortifacients momentarily.)
Claim: No individual will be forced to buy or use contraception: This rule only applies to what insurance companies cover. Under this policy, women who want contraception will have access to it through their insurance without paying a co-pay or deductible. But no one will be forced to buy or use contraception.Response: The statement that no one will be forced to buy it is false. Women who want contraception will be able to obtain it without co-pay or deductible precisely because women who do not want contraception will be forced to help pay for it through their premiums. This mandate passes costs from those who want the service, to those who object to it.
The bishops repeatedly claim the HHS mandate forces Catholic organizations to "pay for" contraception. The mandate requires organizations that provide health insurance to employees to include contraception coverage in those plans. When I want a copy of the New York Times, I hand a clerk $2.50 and he provides me with the paper along with a complimentary copy of Capital (that's just how we roll in the other America) -- transaction complete. That's not quite how health insurance works. When an employer pays an insurance premium, it's in exchange for services employees may or may not receive, depending on their medical needs. That means that paying for coverage that includes contraception does not mean everyone who can use it will use it. What's more, most employers do not bear the sole cost of health-insurance premiums -- employees usually have to kick in a portion of their paychecks. In the case of institutions like Catholic hospitals, which employ and serve people of all faiths (and none), not all employees find contraception objectionable. Of course, the lion's share of the funding comes from the employer, but the moral calculus changes along with the financial calculus.
Claim: Drugs that cause abortion are not covered by this policy: Drugs like RU486 are not covered by this policy, and nothing about this policy changes the Presidents firm commitment to maintaining strict limitations on Federal funding for abortions. No Federal tax dollars are used for elective abortions.Response: False. The policy already requires coverage of Ulipristal (HRP 2000 or Ella), a drug that is a close analogue to RU-486 (mifepristone) and has the same effects. RU-486 itself is also being tested for possible use as an emergency contraceptive and if the FDA approves it for that purpose, it will automatically be mandated as well.
False? The Hyde Amendment prevents federal dollars from funding elective abortions. (During the health-care debate, that was the status quo the USCCB said it wanted to maintain.) If a morning-after pill causes an abortion -- and it is not designed to have that effect -- that's not the same as an elective abortion because a woman who takes such a drug is not intending to terminate her pregnancy. That distinction cannot be elided -- at least not if one wants to remain within the tradition of Catholic moral theology.The question of whether and when (and how one would know that) morning-after pills function as abortifacients is notoriously complicated. Ella's primary function is to delay ovulation. It can have an effect on the receptivity of uterine lining, blocking implantation of a fertilized egg (thereby, from the bishops' point of view, but not the FDA's, causing abortion). But to say that Ella "has the same effects" as RU-486 is not right. RU-486 acts on established pregnancies to end them -- and only in conjunction with another drug, misoprostol, which Ella lacks. RU-486 is administered at much higher doses than Ella, and some have claimed that an overdose of Ella could terminate an existing pregnancy (an overdose of aspirin would have the same effect). In animal studies, very high doses of Ella have ended pregnancies. But, from what I've read, the science about humans is inconclusive. None of that is to say the bishops should be satisfied with the drug's inclusion in the mandate, but only to show that equating that RU-486 with Ella is misleading.
Claim:Over half of Americans already live in the 28 States that require insurance companies cover contraception: Several of these States like North Carolina, New York, and California have identical religious employer exemptions. Some States like Colorado, Georgia and Wisconsin have no exemption at all.Response: This misleads by ignoring important facts, and some of it is simply false. All the state mandates, even those without religious exemptions, may be avoided by self-insuring prescription drug coverage, by dropping that particular coverage altogether, or by taking refuge in a federal law that pre-empts any state mandates (ERISA). None of these havens is available under the federal mandate. It is also false to claim that North Carolina has an identical exemption. It is broader: It does not require a religious organization to serve primarily people of its own faith, or to fulfill the federal rules narrow tax code criterion. Moreover, the North Carolina law, unlike the federal mandate, completely excludes abortifacient drugs like Ella and RU-486 as well as emergency contraceptives like Preven.
That's a helpful clarification, although it doesn't go far enough. Self-funded health plans that do not pay insurance premiums to private insurers (for plans that include prescription drugs) can avoid state contraception-coverage mandates. Those that do cannot. (Usually, an employer with a self-funded health plan contracts with an insurer to administer the benefits. So, for example, Cigna agrees to manage the claims of a diocese's employees in exchange for an administrative fee. When Cigna receives a claim, it sends it to the diocese, which in turn reimburses Cigna -- at a previously agreed-upon rate -- only for services provided.)But self-funded health plans are not for every employer. They require a good deal of liquidity to pay out employee medical claims. The bishop of Madison, for example, looked into self-funding a diocesan health-care plan as a means of avoiding Wisconsin's contraception-coverage mandate, but he found it was prohibitively expensive. So he decided that it was morally licit for his diocese to provide employees with health insurance that includes contraception coverage.That's not something you'll read about in a USCCB press release.In Sr. Carol Keehan's most recent statement about the HHS mandate, she wrote:
We have said the problem is not resolved, and we must have a national conversation on this. CHA is working closely with the United States Conference of Catholic Bishops, Catholic Relief Services, Catholic Charities USA, the Association of Catholic Colleges and Universities and others to look at options to resolve this. We will be discussing it at the CHA board meeting on Feb. 8.
I assure you that we will use the time to pursue a correction during the one-year extension. We will give this issue priority and consult with members and experts as we evaluate options to deal with this.
But after reading talking points like these, especially when coupled with threats of civil disobedience, one has to wonder whether the bishops are all that interested in joining such a conversation. No one expects institutions affected by this ill-advised mandate to roll over. Striking the right rhetorical balance isn't easy -- especially when the Obama administration issues its own well-spun talking points. But are the bishops planning on keeping any powder dry for August 2013, when they'll have to implement the mandate (if their legal challenges fail)? Or are they content to wage a PR campaign until that point, poisoning the well for Catholic agencies not under the direct control of bishops? To put it another way: how do you sit at a negotiation table you've set fire to?Update: Not long after House Speaker John Boehner retweeted a link to this USCCB press release, senior Obama campaign adviser David Axelrod signaled that the White House may be open to a compromise:
Im less concerned about the messaging of this than to find a resolution that makes sense, said Axelrod on MSNBCs Morning Joe.I heard earlier Joe [Scarborough] say, Well, there may be compromises that can be reached. We have great respect for the work that these religious institutions do. We certainly dont want to abridge anyones religious freedoms, so were going to look for a way to move forward that both provides women with the preventive care that they need and respects the prerogatives of religious institutions, he added.
And here's Mark Silk's take on Axelrod's smoke signals. In the recent poll of Americans' views on the contraceptive mandate, a majority of Catholics approved of the Obama administration's decision, but, Mark notes:
there's a key voting bloc that's not so happy with requiring religiously affiliated colleges and hospitals to provide contraception coverage. That would be white Catholics, to the tune of 58 percent opposed. Politically, they are the most closely divided religious grouping in America. In 2008, they constituted 19 percent of the electorate and voted for John McCain over Barack Obama 52 percent to 47 percent. In the critical swing states of Ohio, Pennsylvania, and Florida, they are a critical swing constituency, representing 20 percent, 29 percent, and 19 percent of the electorate respectively. Lose 10 percent of them to contraception coverage and you could lose the election.