February 12, 2012

An Open Letter on the “Compromise”

(The following is an open letter signed by several prominent intellectuals, in response to the Administration’s “compromise”.  It is an important and cogent summary of the significance of that proposal, so I offer it to you in its entirety.  It was originally postedhere.)

Today the Obama administration has offered what it has styled as an “accommodation” for religious institutions in the dispute over the HHS mandate for coverage (without cost sharing) of abortion-inducing drugs, sterilization, and contraception. The administration will now require that all insurance plans cover (“cost free”) these same products and services.  Once a religiously-affiliated (or believing individual) employer purchases insurance (as it must, by law), the insurance company will then contact the insured employees to advise them that the terms of the policy include coverage for these objectionable things.

This so-called “accommodation” changes nothing of moral substance and fails to remove the assault on religious liberty and the rights of conscience which gave rise to the controversy.  It is certainly no compromise.  The reason for the original bipartisan uproar was the administration’s insistence that religious employers, be they institutions or individuals, provide insurance that covered services they regard as gravely immoral and unjust.  Under the new rule, the government still coerces religious institutions and individuals to purchase insurance policies that include the very same services.

It is no answer to respond that the religious employers are not “paying” for this aspect of the insurance coverage.  For one thing, it is unrealistic to suggest that insurance companies will not pass the costs of these additional services on to the purchasers.  More importantly, abortion-drugs, sterilizations, and contraceptives are a necessary feature of the policy purchased by the religious institution or believing individual.  They will only be made available to those who are insured under such policy, by virtue of the terms of the policy.

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer.  It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer.  What matters is what services the policy covers.

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization.  This is a grave violation of religious freedom and cannot stand.  It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept as assault on their religious liberty if only it is covered up by a cheap accounting trick.

Finally, it bears noting that by sustaining the original narrow exemptions for churches, auxiliaries, and religious orders, the administration has effectively admitted that the new policy (like the old one) amounts to a grave infringement on religious liberty.  The administration still fails to understand that institutions that employ and serve others of different or no faith are still engaged in a religious mission and, as such, enjoy the protections of the First Amendment.

John Garvey

President, The Catholic University of America

Mary Ann Glendon

Learned Hand Professor of Law, Harvard University

Robert P. George

McCormick Professor of Jurisprudence, Princeton University

O. Carter Snead

Professor of Law, University of Notre Dame

Yuval Levin
Hertog Fellow, Ethics and Public Policy Center

Hawaii's contraception model has downsides, some say

Feb. 09, 2012
While the possibility of mandatory contraception coverage in health plans could become a new reality for many Catholic institutions under the recent ruling by the Department of Health and Human Services, dioceses in nearly 30 states have already faced contraception rules, reacting in various ways.
Currently, 28 states have laws requiring contraceptive coverage as part of health plans. According to the National Conference of State Legislatures, 20 of those states offer some type of exemption, a list including Arizona, New York, Maryland, Missouri and California.
Whether exemptions exist or not, Catholic groups in all 28 states can avoid the contraceptive mandate in one of three ways, says the U.S. bishops' conference. These include self-insuring prescription drug coverage, dropping that coverage completely or opting into a federal law that preempts any state mandates. Critics say the narrowness of the recent federal ruling would block religious groups from taking any of these avenues.
In Hawaii, contraception coverage has been on the books since 1999. Offering more leniency for religious groups, its mandate has been mentioned as a compromise to the federal HHS ruling.
For religious groups in Hawaii, the option of a refusal clause exists for those with religious beliefs opposing contraception. As part of the refusal clause, the organization is required to inform employees in writing that such coverage will not be provided in their health plans, but also provide information to them regarding where such coverage can be obtained.
Employees who choose to buy contraception do so at a cost no higher than the pro-rata share of the rate the organization would have paid had they not opted out through the refusal clause. The Hawaiian law stipulates the refusal clause applies to contraceptive purposes, and cannot exclude coverage for non-contraceptive purposes, such as decreasing the risk of ovarian cancer or eliminating symptoms of menopause.
Walter Yoshimitsu, chancellor of the Honolulu diocese and executive director of the Hawaii Catholic Conference, said that in most cases the model works, but issues still remain. For instance, despite the presence of the refusal clause in state law, some insurance companies decline to honor it.
Yoshimitsu said that Kaiser Permanente includes contraception coverage in all of its plans, and doesn't provide an opt-out for anyone, even religious groups. Instead, the company provides the coverage at no cost to those who don't want it. According to Yoshimitsu, only a small portion of people with Catholic organizations are enrolled with Kaiser, but such a policy still presents a problem because of a lack of distance between the church and the coverage.

NCR: February 3-16, 2012

Subscribe to NCR to get all the news and special features that aren't always available online. In this issue:
US News: Bishops Host Conference on Immigration
Conference fields advocates' questions on law, policy
Special Section: Deacons. Serving as parish administrator; roles of wives; and more
Study: Black Catholics are more engaged
New study by Notre Dame researcher about parish involvement in America
Subscribe now!
While most members receive health coverage through the Hawaii Medical Service Association, the fact that the diocese, though not intentionally, issues contraception coverage through Kaiser remains an issue.
For Bishop William Lori, chair of the U.S. bishops' Ad Hoc Committee on Religious Liberty, the Hawaii model fails to present the compromise many paint it as. Opt out or not, Lori said that the plan's requirement that Catholic organizations refer enrollees to where they can obtain contraception presents an obstacle for the church.
"The more we're forced into a corner, the more we are forced to make accommodations, the more our witness value goes down," he said, adding that the United States has "always been a country where everybody gets to participate according to their own likes" and where religious freedom included tolerance at the minimum.
"All the Founding Fathers saw that, and how far are we removed when we're sitting around talking about, well, maybe the Catholic church could make a referral to a service that it regards as intrinsically immoral," Lori said.
"We're pretty far way from the genius that inspired the founding of this country."