The HHS Decision

I’ve spent much of the past week working through the Obama Administration’s decision to not expand the religious employer exemptions for HHS mandated preventative health services.  I believe President Obama and Secretary Sebelius made the wrong decision.  These regulations create a conflict between a federal definition of the scope of religious organizations’ mission and their own theological definitions of their mission. 

It would not have been legally simple to create a broadened federal religious employer exemption, but surely something could have been done.  The legal complexities of the issue make it one that would have been litigated regardless of the decision.  The Administration’s chosen religious exemption language has withstood legal challenges on the state level.  It is beyond my ken to know whether federal use will be different.  Questions of the scope of religious mission seem infinitely more complex than the narrow and long-litigated “ministerial exemption” of the recent SCOTUS decision.  It’s clear the courts will soon have the opportunity to decide.

Such a decision requires balancing individual and organizational rights.  The decision was certainly guided by the Administration’s expressed desire to expand access to contraception as something to which all women are entitled.   Data show a large portion of abortions result from unplanned pregnancies and the administration has committed itself to reducing abortions.  Of course the Catholic Church does not see this as a legitimate means of doing so.  The USCCB has every right to protest these regulations. 

Switching the content however, I become ambivalent.  I would hesitate to say religious liberty requires that Christian Science or Jehovah’s Witness affiliated organizations not provide policies that cover surgery or blood transfusions.  And, alas, Catholic teaching on contraception enjoys only slightly more support than these other strongly held religious beliefs.

From the start, the draft regulations made clear that that churches are exempt from these requirements as religious organizations that have “inculcation of religious values” as their purpose and who primarily employ and serve coreligionists are not bound by these regulations.  But these last two requirements exclude crucial Catholic organizations such as Catholic Charities, catholic hospitals and schools.  (Self-funded student insurance plans are also exempt.)

As the administration was informing stakeholders last Friday, Senior Advisor Valery Jarrett invoked the President’s encouragement that the model used in Hawaii be considered as a possible resolution in an HHS conference call about the final regulations. 

Hawaii’s law allows religious organizations that morally opposed to contraception to provide policies without such coverage, and directs insurers to allow employees of such organizations “to directly purchase coverage of contraceptive supplies and outpatient contraceptive services.  The enrollee’s cost of purchasing such coverage shall not exceed the enrollee’s pro rata share of the price the group purchaser would have paid for such coverage had the group plan not invoked a religious exemption.”

This might be a workable solution for non-exempt Catholic employers.  How it would function on the Federal level has not been detailed.  It is not codified in legislation or HHS regulations.  If the Administration is serious about this option, it should take immediate steps to further clarify its commitment.  Talk of convening meetings between insurers and religious employers sounds promising.  The burden is on the Administration to develop this possibility.

The year delay in implementation is helpful for exploring workable options.  Policy wise, a whole lot would have been solved by synchronizing this deadline with the activation of the state insurance exchanges in 2014 which will make it much easier for individuals to find affordable coverage outside of an employer plan.

On the Catholic side, some traditional precision is called for.  This is precisely not “coercing religious ministries and citizens to pay directly for actions that violate their teaching” as Archbishop Dolan has contested in the Wall Street Journal.   I see that red pencil “Distinguo!” my undergraduate ethics professor would write in the margins of my papers.  This requires an indirect payment mediated through an insurance policy for an action that an employee may or may not chose to do.

I would very much like to see a detailed analysis of the level of material cooperation involved in purchasing an insurance policy in a market where all must include contraception, including anti-implantation methods.  If this is impermissible material cooperation, what specifically makes this cooperation too proximate?  What specific changes would need to be made for it to be sufficiently remote?

While there is much talk of the politics of the decision in terms of the current election cycle, I find a much deeper and lesser-remarked political tension to be a greater concern. 

Domestic religious liberty is generally framed along the culture war divide in the US and not taken seriously by many on the left.  It’s true that issues such as this insurance mandate pale in comparison with the sorts of violence, repression, and disenfranchisement experienced in other parts of the world.

Nevertheless, as progressives seek to expand government oversight and activity in order to promote the common good, there must be a concomitant development of provisions for dealing with the increased conscience conflicts that this will bring about for religious organizations.  The Affordable Care Act’s use of regulatory oversight to achieve policy outcomes changes the equilibrium of religious liberty in important ways.  The Obama administration is guilty of a failure of imagination in dealing with a problem directly linked to its central domestic policy achievement. 

These progressive concerns find much resonance in the Catholic Social Doctrine, and Benedict XVI has been among the most forceful voices on such matters.  Benedict XVI put wealth inequality on the table long before Occupy Wall Street and President Obama.

The Catholic Church could and should be an important ally in these matters.  Of course the history of the relationship does not give cause for arguing the USCCB would have cheered.  As women’s’ organizations howled at Sec. Sebelius’s and President Obama’s decision overrule the FDA and to not make Plan B available to girls under 17 without parental consent, the USCCB response was decidedly muted, if not backhanded. 

As one who winced at the often unnecessarily confrontational stance that the USCCB took toward the Obama administration under Cardinal George, I’m equally troubled to see the Administration enact such a substantial stumbling block.

The year delay in implementation will no doubt be filled with lawsuits.  Whether it is also filled with good faith efforts to come to an acceptable solution is now up to the Obama administration.  For the future of our nation and their deepest political commitments, they would be wise to begin soon.  Both sides have so much at stake.