Wheaton chaff.

Last week Wheaton College, an evangelical school in the great state of Illinois, let it be known that they were joining the Catholic University of America in a lawsuit against the Obama administration over the contraception mandate. Why would an evangelical college sue over the contraception mandate when Protestants have no problem with artificial birth control? Because, as Wheaton President Philip Ryken explained during a conference call, "the mandate forces us to provide abortion-inducing drugs through the insurance coverage that we provide to our faculty, students, and staff." And why now? The college was waiting to see what the Supreme Court would decide -- and, according to its legal counsel, Wheaton is subject to the preventive-services mandate in six months. That's soon.

Any chance Wheaton's employee health plans are considered grandfathered -- like the plans offered by the Franciscan University of Steubenville -- and therefore exempt from the mandate? No, according to Kyle Duncan of the Becket Fund. What about an exemption? "There's no question that Wheaton can't qualify for any exemption from the mandate for the simple reason that it's not a church or religious order," Duncan continued, assuming that the Department of Health and Human Services would deny the college's request for an exemption. What about the so-called safe-harbor provision, which would delay enforcement of the mandate for religious employers until August 2013?

"Wheaton can't profit by any safe harbor the government has offered simply for purely technical reasons about changes made to its insurance policy," Duncan claimed. Technical reasons? The safe harbor provision "has a number of technical requirements to be able to qualify," Duncan elaborated. "For example, it has a cut-off date of February 10, 2012. Because of technical changes made to Wheaton's insurance policy after that date, it can't qualify. If that sounds arbitrary that's because it is."

No, it's not.

In order to qualify for safe harbor, a religious employer must not cover -- or have recently covered -- services it now wants to be exempt from covering. Duncan didn't explain this on the call, but in paragraph 120 of Wheaton's legal complaint (.pdf), you find this: "They currently provide coverage for certain contraceptives and inadvertently provided coverage for a short period after February 10, 2012, for other now-excluded contraceptives, making it impossible for Wheaton to make the required Safe Harbor certification." Sounds like Wheaton was paying for emergency-contraception coverage for its employees -- for how short a period it doesn't say.

I've followed up with Wheaton (which has outsourced media inquiries about this to the Becket Fund) in order to verify that, but haven't gotten an answer. Through its attorney, Wheaton refused to provide a copy of its employee health plans.

After Duncan cited those technical reasons on the conference call, President Ryken weighed in: "My understanding is that it would be effective for us January 1, 2013. I'll welcome my first freshman in two weeks. We're obviously needing to understand how we're going to provide insurance coverage already this academic year." Does that mean Wheaton might not cover students if this isn't resolved? "We will do everything possible to continue to provide coverage for faculty, staff, and students. What I communicated to our campus community today was that it was my hope to be able to continue to provide it, but i also told them that we would be facing these punitive fines."

The good news for Ryken is that because Wheaton apparently self-funds its student coverage it's completely exempt from the preventive-services mandate. (I say "apparently" because the Becket Fund lawyer who responded to queries I sent Wheaton's media-relations office did not provide a direct answer to the question, "Is the student plan self-funded?")

The document making it clear that self-funded student plans are exempt was entered into the federal register in March. So why, nearly five months later, is Wheaton's president telling reporters that "the mandate forces us to provide abortion-inducing drugs through the insurance coverage that we provide to our faculty, students, and staff"?

On the call, Ryken was asked what he made of recent reporting that emergency contraception does not prevent implantation. "The secretary of Health and Human Services has been clear in her statements that some of the drugs covered in this mandate are drugs that prevent the implantation of a fertilized embryo. We agree with the secretary in her understanding of the effect of these drugs, and regard morning-after and week-after pills as abortifacient drugs. If there were any doubt about that we would still want to err on the side of moral caution." Even if one discounts for the preponderance of evidence against the claim that Plan B prevents implantation (the science on the week-after pill [brand name ella] is less settled), if the university had been serious about erring on the side of moral caution, then why does its legal complaint suggest that it had been "inadvertently" paying for coverage of drugs it calls "abortion-inducing"?

Which brings us to the question of moral reasoning. During the conference call, Ryken rejected the Obama administration's proposed accommodation, which would exempt religious employers from contracting and paying for contraception coverage, while allowing employees to receive such coverage separately from the insurer.

"Any accommodation that still involves us in connection with an insurer that provides abortion services still, though indirectly, nevertheless implicates us morally in that action," Ryken said. In other words, no categories of cooperation with evil for Wheaton. Even indirect involvement with an abortion-providing insurer is morally illicit. When Ryken was asked who insures Wheaton's employees, he couldn't say. But the college's website does. It's Blue Cross/Blue Shield of Illinois. And while Blue Cross pays for emergency contraception for thousands of enrollees who don't work for Wheaton, it also covers an actual abortion drug -- Mifeprex -- which, the drug maker's website points out, Blue Cross covers "to the same extent as surgical abortions."

Grant Gallicho joined Commonweal as an intern and was an associate editor for the magazine until 2015. 

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