It would appear that a major obstacle to improved relations between the U.S. bishops and the Obama administration has been rolled away by today’s revision of the Department of Health and Human Service mandate on contraceptive services in new employer-provided health care plans. That’s the opinion of James Salt, the executive director of Catholics United. Commenting on the revisions, he said, “This is a good day for Americans.” He said he was confident that by the end of the day the U.S. bishops will also arrive at that conclusion.
In response to today’s revisions to the Patient Protection and Affordable Care Act (PPACA), Cardinal Timothy Dolan of New York, president of the United States Conference of Catholic Bishops, said the bishops welcomed the opportunity to study the proposed regulations closely. “We look forward to issuing a more detailed statement later,” he said.
The revisions offer most of what the bishops were seeking in terms of a broadened exemption for religiously affiliated institutions, but stopped short of exempting private employers from the new requirements, the “Taco Bell” exception suggested by U.S.C.C.B. staff in the past, meant to extend the exemption to individual conscience protections for private employers.
The Catholic Health Association, a notable supporter of President Obama's Affordable Care Act and a critic of the narrow exemption for religious entities previously offered on contraception, issued a neutral statement regarding the latest revision. Like the U.S. bishops, C.H.A. officials said they intended to study the proposal further to assess the changes before commenting.
The Becket Fund, a non-profit, public-interest legal and educational institute, which has been assisting in a number of the 44 lawsuits that have been initiated to challenge the mandate, issued a statement on Feb. 1 describing itself as "extremely disappointed." Becket's general counsel Kyle Duncan argued that the proposed revision "does nothing to protect the religious freedom of millions of Americans. For instance, it does nothing to protect the rights of family businesses like Hobby Lobby [a Becket litigant].
"The administration obviously realizes that the H.H.S. mandate puts constitutional rights at risk. There would have been an easy way to resolve this—expanding the exemption [to all religious objectors]—but the proposed rule expressly rejects that option.”
“I think that the leaders in [the U.S.C.C.B.] at the end of the day are going to see that fighting over arcane rules in H.H.S. regulations is not a winning issue for the bishops,” said Salt, “that their political capital is best used for the issues that are truly important to the Catholic church.”
Salt suggested the revisions should clear the way for a detente between the Obama administration and the bishops that could lead to cooperation over a number of pressing social issues, poverty and unemployment, climate change and immigration reform. He called the bishops’ relationship with the administration “antagonistic from day one.”
He added that it would be “interesting to see if the bishops can be partners to the Obama administration now” on issues of mutual concern and agreement.
Salt said his group had worked with “emissaries” of the administration in recent months as they attempted to re-craft provisions of the affordable care act regarding contraception that had proved so controversial. “The president promised he would deal with this and he did,” said Salt.
Remarkably, considering the hoopla that the contraception mandate immediately provoked, in its explanation for the revisions, H.H.S. seems to broadly accept the bishops’ position regarding the narrowness of the original code and its follow-up “accommodation.” The H.H.S. statement notes: “[T]he Departments agree that the exemption should not exclude group health plans of religious entities that would qualify for the exemption but for the fact that, for example, they provide charitable social services to persons of different religious faiths or employ persons of different religious faiths when running a parochial school. Indeed, this was never the Departments’ intention in connection with the 2011 amended interim final rules or the 2012 final rules.”
During a teleconference on Feb. 1, Chiquita Brooks-LaSure, deputy director of policy and regulation in the H.H.S. Center for Consumer Information and Insurance Oversight, said no nonprofit religious institution—including churches, universities, hospitals and charities—will have to "arrange, contract, pay for or refer for" contraception insurance for employees or students who want it. In the case of self-insured religious entities—which includes many dioceses and colleges—employees or insured students who want contraceptive coverage will be able to arrange it through third party insurance administrators, at no cost to themselves and without financial or even administrative support of the faith-based institution, Brooks-LaSure said.
"The eligible organization would have no role in contracting, arranging, paying, or referring for this separate contraceptive coverage," the proposal says. "Such coverage would be offered at no charge to plan participants and beneficiaries, that is, the issuer would provide benefits for such contraceptive services without the imposition of any cost sharing requirement (such as a co-payment, co-insurance, or a deductible), premium, fee or other charge."
The proposal includes several possible ways of arranging such insurance for employees of self-insured organizations. Brooks-LaSure said that insurers will be able to provide the coverage at no cost to the individual because of the financial savings realized from preventing unwanted or unplanned pregnancies versus paying the costs associated with pregnancy, labor and delivery. Major insurers are now studying how these proposals will work out practically, but Becket's initial statement expressed skepticism on the funding structure. It described it as a "convoluted 'accommodation' that may not resolve religious organizations’ objections to being coerced into providing contraceptives and abortifacients to their employees" and complained that the "long awaited rule" still provides "no concrete guidance for religious groups that are self-insured."