In their statement on the revised version of the HHS regulations, the U.S. bishops write that under the new terms, the mandate "would allow non-profit, religious employers to declare that they do not offer such coverage [of sterilization and contraception]. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."This redfaced point, which as far as I know has not been contested in any of the descriptions of the regulations that are out there, seems to me to matter quite a bit. For in order for there to be a meaningful sense in which the HHS mandate doesn't require employers to provide insurance coverage for sterilization and the purchase of contraceptives, there needs to be a meaningful sense in which the insurance policy provided by the employer is different from the one that covers these things. Otherwise, we end up with a situation where, while an employer-sponsored policy may not cover sterilization and contraception at the moment that it is issued by the employer, once the employee requests the insurer to add such coverage that same (employer-sponsored) policy now does cover these things, and such coverage is integrated seamlessly with the rest of what the policy covers. It may be true that the default employer-sponsored policy does not pay for anything that the employer finds morally objectionable, but if the modified policy is also an employer-sponsored one, and coverage for sterilization and contraception is a part of it, then the employer has sponsored a policy that covers sterilization and contraception. And surely it will not matter that the employer did not have to tell the employee that there was an employer-sponsored plan available that covered these things, or that the insurer happens to be making it available to the employer at a reduced rate.By contrast, if coverage for these things is on the books as an additional rider that the employee is offered the opportunity to add for free, then -- so long as it really is free for the employer -- the force of this worry diminishes significantly. For then it strikes me the most accurate way to describe the situation would be as one where it must be in the terms of the employer-sponsored policy that it includes an option to add some separate policy that would bring with it some additional coverage, albeit of a sort the employer would rather not provide. I do not expect that everyone who is worried about the mandate's effects on religious liberty would be persuaded by this, but I think I might (though I would still oppose the mandate on other grounds). In any case it would go some way to addressing the concern about the "seamlessness" of employer-sponsored coverage as described in the paragraph above.I will now be shouted at in the comboxes. Please be charitable, as I am not in anyone's pocket here, and I have been thinking a lot about these questions and working hard to set my thoughts straight.
John Schwenkler is an associate professor in the Department of Philosophy at Florida State University.