In what is, to my knowledge, the first response from an American bishop to the proposed changes to the HHS mandate rolled out by the Obama administration last Friday, Archbishop Charles Chaput of Philadelphia has said that not only do the new regulations fail to fix the problems with the mandate, “they may actually make things worse.”
At first glance, the new rules have struck some people as a modest improvement. They appear to expand, in a limited way, the kind of religiously-affiliated entities that can claim exemption from providing insurance coverage for contraceptive and abortion-related services under the new Affordable Care Act.
White House apologists and supporters have welcomed the proposal. The New York Times called it “a good compromise.” Groups like the American Civil Liberties Union and NARAL Prochoice America have praised it. And at least one Washington Post columnist implausibly called it a victory for America’s Catholic bishops.
The trouble is, the new rules are very complex. And they may actually make things worse. In the words of Notre Dame Law Professor Gerard Bradley:
“Gauging the net effect of the new administration proposal [is] hazardous. But one can say with confidence the following: (1) religious hospitals are, as before, not exempt ‘religious employers’; (2) religious charities are very likelynot exempt either, unless they are run out of a church or are very tightly integrated with a church. So, a parish or even a diocese’s Saint Vincent De Paul operations would probably be an exempt ‘religious employer,’ whereas Catholic Charities would not be; (3) the new proposal may(or may not) make it more likely that parish grade schools are exempt ‘religious employers.’ But Catholic high schools are a different matter. Some might qualify as ‘religious employers.’ Most probably will not.
“It is certain that Catholic colleges and universities do not qualify as exempt ‘religious employers.’ The new proposal includes, however, a revised ‘accommodation’ for at least some of these institutions, as well as some hospitals and charities. The proposal refines the administration’s earlier efforts to somehow insulate the colleges and universities from immoral complicity in contraception, mainly by shifting — at least nominally – the cost and administration of the immoral services to either the health insurance issuer (think Blue Cross) or to the plan administrator (for self-insured entities, such as Notre Dame). This proposal adds some additional layering to the earlier attempts to insulate the schools, but nothing of decisive moral significance is included.”
The White House has made no concessions to the religious conscience claims of private businesses, and the whole spirit of the “compromise” is minimalist.
Chaput mentions that the new regulations were quickly embraced by “White House apologists and supporters”; several left-leaning Catholic publications and pundits are also among those lauding the administration’s move. Commonweal’s editorial on the subject is titled “This Will Do”; it relies heavily upon the notion that contraceptives provided for free by third-party insurers will be “cost-neutral” in the long run because they will be cheaper than pregnancy, labor, and delivery expenses:
As Eduardo Peñalver has pointed out at dotCommonweal, nothing would have prevented the HHS from asking insurers to do for any employer what they will now be asked to do only for nonprofit religious organizations. Indeed, it might have been simpler and more prudent to avoid the whole controversy by making this a mandate not for employers to pay for coverage of contraceptives, but for insurance providers to offer it separately—and at no expense—to any policyholder who doesn’t already have it, especially since this coverage is good for their bottom line.
Of course, most other services do cost insurers money. The government could not so easily accommodate every employer who had a moral objection to something on the government’s list of things all health insurance should include. If a Scientologist, say, didn’t want to pay for his employees’ psychotropic medication, the government could not fairly ask that his insurance company eat the cost. In other words, the Obama administration’s shrewd accommodation of Catholic nonprofit organizations doesn’t provide a generalizable solution. It is a one-off fix, made possible by the particular economics of reproductive health care. It has no bearing on the constitutional principle, affirmed by the most conservative members of the current Supreme Court, that religious believers are not exempt from laws of general applicability. The claims of conscience must never be ignored, but they do not necessarily entitle one to relief from any practical difficulty that arises from disagreeing with most of one’s fellow citizens about a duly enacted law.
In his column, Chaput references Yuval Levin, who addresses the issue of religious liberty in his analysis of the new regulations at NRO:
So basically, the religious institutions are required by the government to give their workers an insurer and that insurer is required by the government to give those workers abortive and contraceptive coverage, but somehow these religious employers are supposed to imagine that they’re not giving their workers access to abortive and contraceptive coverage. If religious people thought about their religious obligations the way HHS lawyers think about the law, this might just work. But they don’t.
And that’s just the point here. This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. It’s not “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” but the right to answer to what you are persuaded is the evident and inflexible reality of existence, of meaning, of the universe, and of the mystery of human life. It’s not the right to do what you want; it is the right to do what you must.
The USCCB, of course, has yet to weigh in on HHS’ new regulatory proposals.