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PDF versionA Better Solution to HHS Mandate Mess
by Michael Sean Winters on Feb. 17, 2012
The House Oversight and Government Reform Committee’s hearings yesterday indicated, if any indication was necessary, that the debate over the HHS mandates is shifting in two ways, both of which make it more difficult for those Catholics, including the bishops, to make their case that they should be exempt from any mandate that violates their First Amendment rights.
First, the issue now enters the smog of partisan wrangling. “Smog” is a portmanteau derived from smoke and fog. The smoke, in this case, suggest smoke and mirrors, a lot of political rhetoric which may or may not correspond to any actual legislative objective and, instead, is designed for political effect. The fog is even more dangerous, suggesting the fog of war, in which it is difficult to discern the situation on the ground and the risk of friendly fire is vastly increased. Both smoke and fog becloud one’s vision and therefore one’s judgment.
Second, the issue is slowly, but perceptibly, shifting from a debate about the First Amendment and religious liberty to a debate about contraception. As I mentioned the other day, in any discussion you may have had over the past few weeks, you know that if someone sees the issue as one of contraception and women’s health, you pretty much know where they are going to come down and if the issue is presented in terms of religious liberty, you know where that person is going to come down.
These two developments overlap: The Republicans want to keep the focus on religious liberty and Democrats now have a political interest in making this a discussion about contraception. Alas, the Republicans were the first to engage in some friendly fire, having an all-male panel to discuss the issue. What were they thinking? I could have given them a list of prominent conservative women who could have testified off the top of my head. The fact that the GOP did not see this as a problem tells you a lot about the political tone deafness that has afflicted both sides of the aisle in House politics ever since re-districting became a precise, computer-driven art form: Most members of Congress only have to worry about a primary challenge, not a general election victory and, just so, they must play to their base at all times. But, in a presidential contest, there is no redistricting. So, the debate over the next few weeks will likely be conducted by people on Capitol Hill who have no particular interest in, nor familiarity with, the task of persuading those voters in the center of the electorate who could go either way.
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It is critical for a host of reasons that the USCCB not appear to be playing a partisan game. First of all, just as the White House was surprised to realize that their January 20 decision not to exempt Catholic colleges, hospitals and charities from the mandate touched a deeper cultural chord that disdains government interference in the internal running of religious organizations, there is an equally deep cultural chord that resists the political interference of clerics. The Church, all of us including the bishops, has every right to engage the political process, but if the bishops appear to be wedded to one party, they diminish their claim to an authority that transcends politics. It is not enough to say, well we are going to determine our principles and follow them wherever they lead. To borrow a phrase from ethics legislation, it is not just a conflict of interest that should alarm but the appearance of a conflict of interest.
Progressive Catholics were willing to stand against the Obama administration when it announced a rule that amounted to a punch in the nose to the Catholic Church and, specifically, to those Catholics who had supported the President on his controversial health care bill. But, if the bishops appear to be in bed with the GOP, progressive Catholics have every right to ask their bishops some searching questions: How can we align ourselves so closely with a party that is hellbent on deporting the fastest growing group of Catholics? How can we align ourselves with people who worry a great deal about the moral and legal rights of conscience but ignore the moral obligation to provide universal access to health care? How can we align ourselves, and throw money into the pot too, with a political party that espouses the most profoundly anti-Christian libertarianism in American history?
No, we need to find a better way to address the remaining, and in some cases legitimate, concerns about the “accommodation.” One idea, which I think holds great promise, was put forward by CUA’s Professor Stephen Schneck before the President announced his accommodation last week. Essentially, the distinction between a house of worship and religiously affiliated institutions like colleges and charities would be abrogated and all would be exempt from this, or any mandate, if said mandate violates the First Amendment rights of the organization. Self-insured religious organizations would also be exempt. But, whereas the Obama “accommodation” still entails too much entanglement for some, and is still premised on the fact that the same insurance company a Catholic institution hires will be the insurance company providing the contraception, Schneck proposed that anyone who works at an exempt institution be able to access coverage for contraception through the exchanges the Affordable Care Act (ACA) sets up, and the cost of that coverage be paid by the government.
Church institutions could embrace this because it really does remove us and our money from any involvement with the procurement of contraception. Women’s groups could applaud this because women who work even at exempt organizations would now have access to the services they may desire. And, there is no gimmickry, no sense that anyone is trying to pull the wool over anyone’s eyes. Nor, does this put the bishops in the position of advocating for a bill, like the Fortenberry bill, that is a poison pill for Democrats because it essentially guts the mandate at the heart of the ACA.
Two weeks ago, there was that rare event: Chris Matthews and E. J. Dionne on MSNBC were saying things very similar to what was being said by Sean Hannity and Greta van Susteren on Fox. But, this week, that rare convergence of opinion evaporated. On MSNBC, the battle was a war on women. On Fox, it was a war on religion. The approach put forward previously by Professor Schneck, who supports President Obama’s accommodation, may be able to get us to a point where the accommodation has not: a solution. Not a compromise, because no one wants to compromise core principles. But, a solution in which everyone’s demands are satisfied. We are not there yet. But, I think if the White House and the USCCB dust off Schneck’s prior idea, that might lead to a more fruitful resolution of this whole controversy.
Michael - this is no solution
Michael - this is no solution at all. The entire world, except for a relative handful of holdouts, embraced contraception a long time ago. To make believe that we're opposed to it now would be the height of hypocrisy, not compromise. Not only are today's women entitled to control their own reproductive ability, but contraception has positive benefits for the environment and significantly decreases the number of abortions worldwide -- one of the goals on which most of us can agree. The real issue here is not who has to pay for something that 99% of American women use, but who gets to say what Catholics really believe? If you and the bishops insist on saying that American Catholics believe contraception is sinful, you're living in the distant past and your solutions make sense only to you. We need to listen to Catholic women on this issue, not you, the bishops, and Steven Shneck.
The compromise offered by
The compromise offered by Professor Schenk seems like a good one and I am grateful to hear of it. but there is nothing in this article, nor, also significantly, inMr. Wiinters' over the top "J'Accuse" article, that suggests he believes
this issue has anything to do with women's rights and contraception all. As a Catholic woman, that is, someone on both sides of this dispute, I find this deeply problematic.
While this is an interesting
While this is an interesting idea, I strongly doubt that the Bishops would go along with it. They would merely shift the argument (again) and say that tax paying Catholcs should not be paying in to these exchanges. They would argue that it is an affront to religious freedom to require them to do do. They will be assisted by Republican politicians who will argue that this is a slippery slope to socialism. Mr. Winters, I appreciate the fact that you believe that the Bishops are making the Religious Faith argument in good faith. Sadly I don't believe that is true, the quick movement to the "taco bell" argument indicates to me that the Bishops want the Republicans to use government to enforce teachings on people of all faiths when they cannot make a persuasive case to their own followers.
Neither President Obama's
Neither President Obama's accomdation nor Professor Schneck's proposed solution is acceptable. Religious organizations, who engage in business, do not get a pass to violate the Constitutional protections of its employees and women are whole human beings, not subject to having their reproductive systems singled out for less Constitutional protection.
I'm old enough to remember pre-Roe days during which many women and girls gave their lives as a result of anti-woman legislation and religious policies. I spent a great deal of my professional life working with women and girls who had been raped, after Roe, when those women and girls had a choice to try to prevent pregnancy or end it. The most memorable victim was an eleven-year-old whose family was caught in a cycle of incestuous rape and pregnancies. The young girl was raped by her twenty-five-year-old half brother. If that fetus, in fact, had a soul, it went directly to heaven rather than spend hell on earth in that family.
Abortion should be safe, legal and rare. To achieve that goal, we as a society must make sure that birth control information gets to everyone and that the tools to prevent unwanted pregnancies are available to everyone. To do anything less is reduce women to no more than their reproductive systems. It is profoundly disturbing to me that religious people are displaying such disregard for what is best for the emotional and physical health of women and that politicians are using women to score political points.
I've been a Christian for almost thirty years and nothing in my experience with Christ has led me to believe that He wants women to be pawns in a battle between male-centric religions and male-centric politicians.
PAPAL PLOY UNCOVERED ......
PAPAL PLOY UNCOVERED ...... MSW, your curious coaching tips would be enjoyable if you were discussing football, rather than the pope's ploy to replace Obama by denying American women needed health insurance.
This insurance has already been earned by the women's employment efforts and approved by a democratically elected US government. No papal imprimatur is required. The founding fathers rejected forever a state church and would be shocked by, and opposed to, the pope's current effort to make his failed anti-contraception "dogma" the law of the land.
This is not a game. Lives are at stake. The bishops' charitable institutions, hospitals and universities are all funded basically entirely by US citizens, either directly by contributions, medical fees or tuition, etc., or indirectly by the billions in taxpayer funded subsidies, such as Medicare and Federal student loans. The bishops are mere conduits of citizens funds.
The bishops are also an increasingly irrelevant and obstructionist link in this chain. At a minimum, Congress should be holding hearings on revoking the Church's tax exempt status for using contributions to fund a Republican election campaign.
Your CUA colleague, Schneck's proposal is just another way to route citizen's funds, a distinction without a difference.
Now completely uncovered, the bishops anti-contraceptive crusade is clearly only an irresponsible and duplicitious ploy by the pope to elect a candidate like Santorum that the pope can "manage".
Your colleague, John Allen, today has written about the anti-contraception crusade's head crusader, Timothy Dolan's current visit to review the crusade's status with his Roman boss.
Please read the relevant comment to John's article, "Dolan as Comic", readily accessible by clicking on at:
http://ncronline.org/blogs/ncr-today/rome-notebook-dolans-rock-star-cons...
Jerry, I understand where
Jerry, I understand where you're coming from but I honestly don't have a problem with a solution that saves face for everybody. As long as women who desire/require contraceptives are able to receive them without co-pays (translation - for free) doesn't that solve the problem?
Where I think Mr. Winters is getting his cart before the horse is that he hasn't contacted Mr. Picarello to ask if this would be acceptable to the USCCB before floating it here. If the answer is yes then we have a possible way forward where everybody wins; if the answer is no, then Mr. Winters would then be better able to understand and articulate what the agenda of the Bishops might really be.
What I'm finding ironic is that the religious right has asserted for years that the separation of church and state is a myth; a lie. Clearly, the Bishops have blown that assertion out of the water though I doubt most on the religious right have cottoned to it yet.
Bob
BISHOPS WANT BATTLE ........
BISHOPS WANT BATTLE ........ Thanks, Bob. There a multiple ways to compromise here, but Obama knows the bishops and their right-wing partners want to keep the pot boiling until the November election.
Why should Obama offer more now? The bishops are the best thing that has happened for Obama's reelection campaign. Women voters, and many of their male partners, will never let the bishops succeed in demolishing women's health insurance.
Clarification Pleased as I am
Clarification
Pleased as I am that Michael Sean Winters likes the proposal that I floated prior to the accommodation, let me be clear that the administration's insurance mechanism is one that I now support. To my mind, there is no entanglement of church and state when facilitation and payment is handled by insurance companies.
It's possible that my old proposal for contraception coverage in the exchanges might be employed to handle the remaining bug for self-insured plans. The problem though is finding funds in the exchanges for such an approach. Indeed, it was this funding problem that could not be resolved previously.
really Ratzo ruled rubbers
really Ratzo ruled rubbers all right among men in that recently published Peter Seewald interviews
MSW, what does party
MSW, what does party affiliation have to do with anything! The appearance of political one-sidedness is completely irrelevant in this debate unless of course you have a political agenda. The HHS Mandate is a clear violation of the 1st Amendment of the Constitutional which affects everybody, regardless of party.
If any NCR columnists thinks the issue stops with 'preventive services' and will never expand into other violations of our liberties you are very naive.
If we cannot unite against this infringement on religious liberty and speak with one voice on this issue, we will have sold our religion for 30 pieces of silver and will probably never reclaim our Catholic heritage again in our lifetime.
Andrew K
"reclaim our Christian
"reclaim our Christian heritage"? How can you claim First Amendment protections while advocating for a theocracy in the same comment?
Since it is so clear a
Since it is so clear a violation of the 1st Amendment, you can easily provide a case citation establishing the point, right? I doubt you will because the point is a political one, not a constitutional one.
MSW throws around the phrase "1st Amendment Rights of the organization" but it is doubtful that the Church itself or any other "organization" has the "First Amendment Rights" claimed. I'm sure an argument can be constructed that derives such "rights" of the organization from the rights of its adherents, but I doubt that the bishops would be inclined to base their "religious liberty" argument on the conscience of its members. After all, Catholics, especially female Catholics of childbearing age, overwhelmingly support the right to contraception generally, and, more specifically, the idea that contraception is a medical option that insurance plans should pay for. The insurance industry does not resist paying for contraception because contraception is a lot cheaper than pregnancy.
I think MSW may think the Supreme Court's Citizen's United case treating corporations as equivalent to human beings for purposes of free speech somehow supports the idea that there is an institutional "right" protecting the collective "conscience" of the Church. Logically a "conscience" right would relate either to the non-establishment clause of the 1st Amendment or to the "free exercise" clause. The bishops are already pretty far out in left (really right) field, but I don't think even the bishops would call a medical insurance rule of general application an "establishment" of a state religion. In fact, from the perspective of a non-catholic employee of a church owned hospital or university, the exemption right claimed by the church looks more like an "establishment" of religion than does a rule applied uniformly to everyone.
So the question is whether the rule infringes the "free exercise" of religion? My belief is that "free exercise" refers to the rights of individuals, not organizations, but what if I'm wrong? How exactly does an insurance rule relating to the Church's commercial operations infringe on the Church's freedom to proselytize? The recent case immunizing the Lutheran Church from suit for discrimination related to a teacher in a religious school in which being a Lutheran was an essential qualification for the job. There is clearer connection between education and church doctrine than there is between religion and the work of janitors in church owned hospitals and universities. The much maligned Obama actually constructed an exemption tracking this ruling but that was not enough for the bishops. But the rule the Bishops want would apply equally to non-Catholic and Catholic employees of Catholic institutions operating in commercial environments. What the bishops want is a right to impose a discriminatory rule in more commercial employment settings. Is that really the "exercise" of religion? Recent news reports establish that Catholic institutions in as many as 28 states have been operating under similar rules for a number of years. Why this controversy now?
Resolution of the issue, were it to go to court would ultimately depend on weighing the government's interest in setting up a uniform rule in support of the purposes of the Affordable Care Act versus the Church's highly attenuated "right" to project its doctrines into the commercial marketplace. The five Republican ideologues (4 right wing Catholics) that run the Supreme Court may well "protect" the church if a case reaches them, but the bishops, in my view, the bishops disserve both Catholics and the public when they act to increase their prerogatives to act as elders of the Catholic tribe in commercial settings.
>>My belief is that "free
>>My belief is that "free exercise" refers to the rights of individuals, not organizations<<
Since religion so often involves coming together to worship, that would vitiate a large amount of free exercise protection. Imagine if you had the right to worship according to your beliefs, but the Catholic Church did not have the right have public Masses.
Another comment: Where does
Another comment: Where does anybody get the idea that the current crop of Bishops are connected to the Republican Party. They wouldn't know a conservative idea if one hit them on the head! They are all Democrats and Dolan is the biggest Democrat. Remember, they all enabled Obamacare in 2010 and even met privately with Democratic leaders in the House to rush the bill through! This is the monster that they helped create and now they are the ones trying to repair the damage!
Anybody who thinks the Bishops are an arm of the Republican Party is delusional!
Andrew K
The bishops did everything in
The bishops did everything in their power (which ain't much) to kill the Affordable Health Care Act. Ask the Catholic Health Association and Bart Stupak if wish further clarification.
The solution is to visibly
The solution is to visibly give affiliated organizations a discount, even though they don't deserve it actuarily (because childbirth is more expensive). Some say Axelord deliberately wanted to pick a fight on this, since current law actually requires every health plan, including for clergy, to fund contraception under Title VII of the Civil Rights Act. That provision should have been cited and no public comments should have been taken. If staff knew this and said nothing, they should be fired on both sides. If the bishops knew, they need to simply shut up and start talking about Lent and the New Evangelization. Of course, some of this may be designed to get Santorum out of the way, since raising the issue hurts his electability in the general election.
If folks haven't seen this
If folks haven't seen this yet; here's Bill Moyers take the compromise FWIW.
http://www.truth-out.org/bill-moyers-freedom-and-religion/1329422932
Bob
I have news for Andrew K:
I have news for Andrew K: Many bishops have already proven themselves to be Republican shills, whose pronouncements on political issues seem drawn from Rush Limbaugh or Glenn Beck. Raymond Burke, Robert Finn, Thomas Tobin are just three of the most blatant examples.
Most recently, here in Wisconsin, Archbishop Listecki of Milwaukee declared his opposition to efforts to recall Gov. Scott Walker. My only question is whether he was convinced to do this by pro-lifers or business interests, both of whom back Walker.
You guys are goofy. Earlier
You guys are goofy. Earlier this week you had an article stating you didn't see any problem with Pres. position last friday when he presented something he called "accomodating". The fact you now have this article IS A PERFECT EXAMPLE OF THE DIFFERENT VIEWS OF PRACTICING CATHOLICISM. Things being Relative and not right or wrong is exactly what is wrong with your publications understanding of catholicism. YOU HAVE TO STAND FOR SOMETHING WHETHER IT'S EASY TO OR NOT. If you are wish washy and go by each circumstance you end up with some belief system that is Secular more than Catholic. Good Luck. I hope you join the Pope and real catholicism soon. Colleen
It is a shell game,
It is a shell game, folks.
Shell 1 - direct payment for contraceptives
Shell 2 - payment to the same insurer,
NEW Shell 3 - payment by taxpayers through insurance exchanges.
Here is why it is a shell game. Catholic hospitals do not exist on Catholic money. They exist primarily on the money they get for the health care services they provide. That money comes directly from patients, from the insurers that were paid premiums by the patient or the patient's employer, or from the tax payer who pays for medicare/medicaid patient.
Now, all that money flowing into Catholic hospitals is from people who use birth control, or directly work for a birth control manufacturer, or work for a pharmacy company that sells birth control, or works in a pharmacy that sells birth control. Heck it could be from someone who works at Wal-Mart, where the pharmacy sells birth control so their salary is tainted and their health insurance reimbursements are tainted, and they paid taxes so the government reimbursements are tainted.
Makes you wonder why Catholic hospitals don't just rely on donations, doesn't it?
However, if the bishops will actually pick Shell Number 3, I will be immensely relieved. I don't really think the bishops care about the issue of how formal, material, immediate or mediate is the association with contraceptives - I don't think any "degree of separation" will be sufficient. But I do hope.
Michael, Was this not the
Michael,
Was this not the same hearing dealing with the HHS mandate that had something like 9 witnesses, all of whom were MEN?
Professor Schneck: why in the
Professor Schneck: why in the world would there be a "funding problem" in offering a "cost neutral" item for free? Oh, perhaps because it isn't free or cost neutral. Nice idea Michael, but you can see that the left (Prof. Schneck being a good example) is not interested in a solution, and of course President Obama has never been interested in anything less than mandating religiously objecting employers provide this coverage, because please don't forget, this is his mandate entirely--he could have done the obvious long ago and didn't. What, you say, he couldn't have done it because Republicans wouldn't let him fund that free government contraception? I see. So between the choice of Republicans and the Church OKing taxpayer paid contraception for free, and the President violating religious freedom and federal law, the bad guys are both sides. Really? The President holds religious freedom hostage to get demand Republicans and the Church support free taxpayer provided abortifacients, and the people who won't negotiate that away are the bad guys?
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