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Nicholas P. CafardiFebruary 05, 2013

In an earlier post we linked to Archbishop Charles J. Chaput's concerns about the HHS' proposed revision to the contraception mandate. Here blogger Nicholas P. Cafardi offers a history and analysis of the controversy.

The new draft regulations proposed by HHS to cover the religiously sensitive question of providing contraception coverage as a part of the Affordable Care Act should be accepted by our nation’s bishops as a reasonable compromise of a very thorny issue.

Let’s start at the start. The fact that the HHS regulations required contraceptive coverage to begin with came, not from inside the Obama administration, but from a professional body, the Institute of Medicine. The IOM is the health arm of the National Academy of Sciences. It is an independent body. In their professional judgment, they recommended that the Affordable Care Act’s mandated insurance should cover contraception because of the benefits to women’s health that such coverage would provide. Now, that is not the teaching of our Church which is that “it is necessary that each and every marriage act remain ordered per se to the procreation of human life.” (Humanae Vitae, 11). But the recommendation made it into the draft regulations not to spite Catholics. It made it into the draft because the health arm of the National Academy of Science, the IOM, thought it was good medicine.

The first attempt at the HHS regulations did have a religious exception that many, including your author, thought was too narrow. It granted a religious exemption on the mandated contraception coverage to employers only if 1) the inculcation of religious values is the purpose of the organization; (2) the organization primarily employs persons who share the religious tenets of the organization; (3) the organization serves primarily persons who share the religious tenets of the organization; (4) the organization is nonprofit. 

So talks began with the administration to enlarge that definition, because, as it read, it would leave out many religiously-sponsored organizations like Catholic hospitals, universities and social service agencies. The administration responded almost immediately with the assurance that Catholic hospitals, colleges and social service agencies would not be required to provide such coverage that violated their religious values. Instead, the HHS regulations were reworked so that contraceptive coverage would not have to be provided by the Catholic organization to its employees who wanted it. Rather, that coverage would be available from the insurance carrier, at the carrier’s cost. (This was possible because over-all costs of a health care plan actually would decrease in this situation.)

But, one serious problem remained—many Catholic universities, hospitals and social service agencies are self-insured. In the proposed compromise, they would be the insurance carrier providing the objected-to coverage. Okay, the administration said, we will work that out, too. As a result, HHS published last week’s changes to the proposed regulations.

These changes in the originally proposed regulations do many things. First, and most important of all, in terms of the criticisms that came from the USCCB, the narrow, four part definition of an exempt religious employer is gone. It is replaced with a simple definition of an exempt “religious employer” that tracks Section 6033(a)(3)(A)(i) and (iii)of the Internal Revenue Code, which covers churches, other houses of worship, their affiliated organizations (called integrated auxiliaries) and the exclusively religious activities of any religious order. This change makes it very clear that churches and church affiliates which provide charitable services to folks of all faiths or none, or which employ folks of all faith or none, are covered by the exemption. These had been major fears of the bishops, and this change in the HHS regulations effectively deals with them.

Second, the initial accommodation that was made for Catholic organizations, like hospitals, colleges and universities, that fell outside the original exemption remains. Their employees will get contraceptive coverage from the insurance carrier at the carrier’s cost and not from the Catholic organization that employs them.

Third, the self-insured problem that some Catholic organizations had is also taken care of by the newly proposed regulations. In instances where the Catholic organization is self-insured, the proposed regulations call for the plan administrator (not the Catholic organization as insurer) to arrange for contraceptive coverage by working with an insurance carrier to provide contraceptive coverage at no cost to participants or the organization. The costs would be picked up through adjustments in the new health care exchange fees that insurers pay.

With all of these changes, the Church and Catholic organizations are completely out of the loop. Churches themselves always were meant to be excluded from providing contraceptive coverage. The proposed regulations’ new definition of the religious exemption, based on Internal Revenue Code Section 6033, makes this crystal clear. Catholic organizations that fall outside the Section 6033 exemption, which will be mainly Catholic hospitals and universities, will either have the coverage provided by the health insurer, at the insurer’s cost, or, if self-insured, by the plan administrator through working with the state-wide health care exchange.

There remain some issues. Some folks have argued that the regulations require the provision of not just contraceptive services but of abortifacient drugs, a clear contradiction of Catholic moral teaching. But this theory has been debunked by the scientists.

There is also the fact that the employees of Catholic hospitals and colleges (not of the Church itself or its integrated auxiliaries—those are fully exempt from providing contraceptive coverage) will still receive contraceptive coverage if they want it through the device of having, not their Catholic employer, but rather the insurer or the health exchange fund it. But doesn’t the intervening choice of the employee get the Catholic organization off the moral hook? These Catholic organizations have done nothing to facilitate what the Church would consider an immoral choice by the employee, Catholic or not, to access birth control from a third party source. 

Some would respond that this change does not work because somehow, someway, this is still the Catholic organization’s money. The switch to an alternative payor is simply an “accounting gimmick.” But the Church has thrived on such “accounting gimmicks” in the past, when it has taken federal funds (last year close to one half billion) to be used for non-religious, charitable activities. Each such grant from the federal government requires the church to sequester the government funds so that they are not used for “sectarian purposes,” but only for religiously-neutral charitable activities. Think of all those Catholic Charities who get federal money to assist their social services. While such government largess leaves the Church with more money to do sectarian things, I have yet to hear a church official call that an “accounting gimmick.” The fact is that the segregation of funds as to their source is no different than the segregation of funds as to their use. Neither merits being called a gimmick, rather they are the ways we survive and do business in our pluralistic democracy.

One final issue remains. There is no exception in the proposed regulations for secular employers who object to providing contraceptive care for their employees. This has sometimes been referred to, not by critics, but by its proponents as the Catholic Taco Bell owner. Why should she or he be required to act contrary to her/his religious beliefs and provide contraceptive care to her/his employees  (assuming that these employers fall within the Affordable Care Act’s coverage because they have 50 or more employees)?  This is a serious issue, but it is not a new one. The general legal principle that covers such cases was articulated by Justice Antonin Scalia in the Smith case: a general law of neutral application is presumed to be constitutional, and will be upheld if there is a rational basis for the law's having been enacted. The ACA meets those requirements. But after Smith, the U.S. Congress, led by Senator Edward Kennedy of Massachusetts, enacted the Religious Freedom Restoration Act, which says that, as to the enactments of the federal government, laws which burden free exercise rights must pass a compelling state interest test, and not just be evaluated on whether or not the state has a rational basis for them. So this last issue will come down to the courts, some of which have agreed with HHS, some of which have not.  But it would be an interesting turn of affairs if the protector of employers of the Catholic faith who assert a free exercise right not to provide contraceptive health care to their female employees was that great liberal lion, Ted Kennedy.

Except for this last point, the administration has given the bishops everything that they asked for. And it is understandable why the last point was not conceded. Granting a religious exemption to non-religious employers based on what they say are their religious beliefs makes every person a law unto himself or herself. No society can function that way. But as to the rest, our democracy has worked. The objections of our bishops and Catholic organizations to the original HHS regulations were heard, but so too were heard the objections of the folks who do see contraceptive health care as a necessary part of women’s health care. The government acted to protect the Church’s free exercise rights, but not to gut the rights of women to the health care which informed science said they need. And that is how democracies work. As Bismark is alleged to have said, “Anyone who likes laws or sausages should not see how either of them are made.”

Democracies, especially great pluralistic democracies like the United States of America, function that way. In the law- making process, our government must reconcile competing interests and compromise not ideals but ideas. I think that any fair reading of the newly proposed HHS regulations on contraceptive shows that our bishops were heard. While not all their ideas were accepted, their ideals were not compromised. They got almost everything they asked for. I hope that they can take “Yes” for an answer.           

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ed gleason
10 years 9 months ago
Mr Cafardi has a very good analysis of the accomodation without resorting to the rhetoric of A/B Chaput.= "the kind of courage that gives prudence spine and results in right action, whatever the cost.' That is the kind of words used by an infantry Captain who orders a fixed baynet charge in order to take out some wire 100 yards from the trenches..
Gabriel Marcella
10 years 9 months ago
Professor Cafardi: In the current issue of Public Discourse, Helen Alvare, professor of law at George Mason University and former Director of the Catholic Bishops Respect Life program, argues that the Institute of Medicine report is empirically flawed. Moreover, she argues that "the report was crafted by hard-line ideological partisans, pre-committed to the results they ultimately advocated, after holding “public hearings” at which most invited witnesses were similarly ideologically committed. The largest nonprofit providers of private health services to women in the United States—Catholic hospitals—were not invited." This seems to be the first time that anyone has questioned the validity of the IMO report. What are the policy implications if Alvare is correct? Her article is here: http://www.thepublicdiscourse.com/2013/02/7847/.
Sean Gallagher
10 years 9 months ago
I don't think that the Institute of Medicine is as independent as portrayed. It includes numerous members with ties to NARAL and Planned Parenthood--hardly organizations that are independent on these issues. Indeed, Planned Parenthood would have a vested interest to promote the mandate as they are a prominent provider of the medicines covered by it. I also think that the jury is still out on the implications of the revised mandate. Well-respected legal minds like Rick Garnett and Gerard Bradley have analyzed the text and have raised numerous questions about it.
Chuck Sullivan
10 years 9 months ago
Nice try, Nick. For a leftist Obama lapdog, that is.

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