Today, Cardinal Timothy Dolan released a statement outlining the USCCB's objections to the Obama administration's revision of the revision of the contraception mandate. The new rule scotches the previous iteration's much-maligned four-part definition of "religious employer," and proposes arrangements to make sure religious employers -- including colleges, hospitals, and charities -- won't have to pay for or refer for contraception coverage in their employee health plans. In other words, the Department of Health and Human Services listened to its critics and attempted to allay their concerns.
As the editors ofCommonweal put it, "This will do." The U.S. Conference of Catholic Bishops disagrees.
First, a word of praise for the tone of Cardinal Dolan's statement. It avoids the hyperbolic rhetoric that has characterized this debate for far too long. The cardinal states that the bishops are open to further discussion. He acknowledges that the Obama administration "has heard some previously expressed concerns and that it is open to dialogue," and promises "additional, careful study." He notes that the new proposal does away with the "exceedingly narrow" definition of "religious employer," which, the bishops claimed, "created a 'second class' of citizenship within our religious community" -- subordinating Catholic charities to Catholic parishes. But apparently that's not enough for the bishops.
"The administration's proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic Charities." Yet Dolan fails to mention what replaced the four-part definition. The USCCB had called that definition "unprecedented" in federal law. So HHS lifted the revised definition from something with plenty of precedent: the federal tax code. According to the new rule, any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate. If the employer pays an insurance company for employee health coverage, it has to notify the insurer that it doesn't want contraception included in the plan, and the insurer in turn automatically enrolls employees in a separate plan at no cost to them or to their employer. If the objecting employer is self-insured, it just has to inform its plan administrator, which will arrange for free contraception coverage for employees.
(This is where it gets complicated. "Self-insurance" is a misnomer. Rather than pay an insurance company premiums, some employers prefer to pay directly for their employees' health care. This requires a lot of cash. Such companies typically pay an insurance company to handle administrative tasks. The administrator generates "insurance cards" for the employees, and every time a worker incurs a medical expense, the administrator handles the paperwork and bills the employer for the service, according to an agreed-upon fee schedule. Administration fees are much lower than insurance premiums, so requiring administrators to cover the upfront costs of contraception would be unfair. They'd be paying for savings that accrue only to the "self-insured" company -- covering people who don't want babies is cheaper than covering those who do. That's the financial incentive for insurers to give away contraception to people they already cover. In order to make it worthwhile for administrators of "self-insured" plans, HHS proposes to reduce fees insurance companies will have to pay in order to sell their plans on the new health-care exchanges. Either way, the idea is that no religiously affiliated employer will have to contract for, pay for, or refer for contraception coverage.)
So why does Cardinal Dolan say, "there remains the possibility that ministries may yet be forced to fund and facilitate such morally illicit activities"? No arrangement proposed by HHS would oblige a Catholic institution to fund contraception coverage. But what about "facilitate"? This is the next line of defense. A bishop might argue: Sure, HHS may say that religiously affiliated employers won't have topay for contraception, but there's no getting around the fact that our employees wouldn't receive that coverage if they didn't have the insurance policy we provide. But the Affordable Care Act mandates that everyone have a health-insurance plan -- regardless of employment status. So even if a scrupulous Catholic employer canceled its employee health-care benefit (likely replacing it with cash payments), its workers would still need to buy health insurance -- insurance that would certainly include contraception coverage. The facilitation argument doesn't withstand scrutiny. What's to keep employees from using their salaries to engage in morally illicit acts? Think of all the illicit acts made possible by gainful employment. This is the slipperiest of slopes.
The Catholic tradition developed categories of "cooperation with evil" to help us think through this kind of problem. Without intending the employee to use contraception, without securing or paying for contraception coverage for its employees, a Catholic institution is not involved in a morally illicit act. If an employee wants to use free contraception provided by a third party, that's on her. There's no way to wall off an employee's moral agency. Yet Cardinal Dolan protests that the new proposed rule "would require all employees in our 'accommodated' ministries to have the illicit coverage -- they may not opt out, nor even opt out for their children -- under a separate policy." Cardinal Dolan seems to say that contraception coverage is itself illicit, but the Catholic moral tradition doesn't hold that things in themselves are licit or illicit. Acts are. So Catholic teaching would say that forcing a bishop to provide contraception coverage may be morally illicit. Just as it would say that using contraception is illicit. But the coverage itself has no moral character. It's like saying a drug store shouldn't be selling contraception in a Catholic neighborhood. The availability isn't the problem. An employee may or may not use the free contraception coverage. Until she does, nothing illicit has happened. And if she does, it's not the employer's fault.Cardinal Dolan also expresses his displeasure with the fact that the revised rule does not address the complaints of for-profit employers who have religious objections to the mandate. They "have no conscience protections at all," Dolan writes. Matt Boudway covered this question earlier this week. Should any employer be able to opt out of federally established basic health-insurance benefits because of religious objections? Matt writes:"It would logically lead to a situation they couldn't possibly wish for. Should an overzealous Jehovahs Witness be able to get a group plan that excludes coverage for emergency blood transfusions, even if none of his employees are coreligionists?" The bishops tend to treat conscience claims as though they outweigh everything. In fact, conscience claims must be balanced against state interests (whether the contraception mandate advances a legitimate state interest is another question).
"Throughout the past year," Cardinal Dolan writes in the concluding paragraph, "we have been assured by the administration that we will not have to refer, pay for, or negotiate for the mandated coverage. We remain eager for the Administration to fulfill that pledge." As the bishops continue to study HHS's new proposals, I hope they come to realize that the Obama administration has done just that.