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PDF versionConscience Regs Are Totally Inadequate
by Michael Sean Winters on Aug. 02, 2011
The Department of Health and Human Services released it new rule regarding mandated coverage, with no co-pays, for women’s health insurance policies. As a part of that rule, HHS included conscience protections for religious institutions, or at least HHS claimed to be doing so. In fact, the new rule is totally inadequate and the best that can be said about it is that it is provisional. HHS explicitly invited comment for sixty days before the rule is finalized.
Here is the key language governing the exemption for religious organizations: “a religious employer is one that: (1) has the inculcation of religious values as its purpose;
(2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.” The rule notes that this language tracks with the language in 28 states that allow such exemptions on religious grounds. It states: “The definition set forth here is intended to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”
This is presented as an effort to “reasonably balance” interests. But, there is no balance. There is a First Amendment guarantee that Congress make no law restricting the free exercise of religion. Last time I checked, there is no First Amendment right to an insurance policy that covers contraception.
Of course, the First Amendment also prevents religious establishment, and some women’s advocates see the new rule as an unacceptable interference by religion. Judy Waxman, vice president for health and reproductive rights at the National Women's Law Center, denied the very idea that the Affordable Care Act gave the administration the authority to include a religious exemption. “We don’t think there’s any authority in the law to have a conscience clause,” Waxman said. “It’s unfortunate that the administration is considering this proposal to allow some employers to deny this coverage to women.” Again, the authority to provide a religious exemption may, or may not, be in the ACA but it is certainly in the First Amendment. President Obama, who once taught Constitutional Law, surely knows this.
“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities in a press release from the USCCB.
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The problem is with the conjunction “and.” If that conjunction were switched to “or” the new rule would be fine. The four items listed as defining a “religious employer” include “primarily employs person who share its religious tenets.” But, Catholic schools and hospitals employ lots of non-Catholics. The language also requires a religious employer be one that “primarily serves persons who share its religious tenets” but, again, Catholic hospitals and schools take care of all people. Under this rule, we would have to kick out poor Protestant kids from our schools, and refuse to treat Jews in our hospitals. Is that what the administration intends? As Sister Mary Ann Walsh said in a blog post at the USCCB media blog, “HHS’s reg conveniently ignores the underlying principle of Catholic charitable actions: we help people because we are Catholic, not because our clients are. There’s no need to show your baptismal certificate in the hospital emergency room, the parish food pantry, or the diocesan drug rehab program. Or any place else the church offers help, either.”
Sister Carol Keehan, head of the Catholic Health Association, acknowledged that parts of the new rule are laudable. “There are many aspects of this new rule that are vital in protecting life,” Keehan told me yesterday. “Eliminating deductibles and co-pays for screening services is wonderful for protecting the health of all women but especially those who are poor.” But, Keehan also noted that the conscience exemptions need to be air-tight. “We have a comment period in which to study and recommend any changes necessary to assure the conscience protection language is adequate,” Keehan said. “Adequate conscience protection will be essential and we will study what has been released, dialogue and submit comments to assure we have adequate conscience protection.” She also praised the administration for removing abortifacients from the list of mandated coverage, although there is some debate about the effects of one of the FDA-approved drugs. The administration may not listen to me. They may not listen to the USCCB. But, they surely should listen to Sr. Carol without whom there would be no Affordable Care Act in the first place.
The White House should be aware that this is a really, really big issue for us Catholics. And, to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.
This is also a test case for the White House Faith-Based Office which serves as a liaison to the religious community. They have much improved their outreach to Catholics this year, as I noted in an article last month. But, there remains an outstanding question: How much juice do they have within the administration? The Faith-Based Office knows how important this is to Catholics. Can they persuade others within the White House and HHS to act on that knowledge? To be clear. Keeping the rule as is would give me great pause in casting my ballot for Barack Obama next year, not because he failed to do right by my Church, but because anyone who fails to grasp the constitutional issue here probably should not be entrusted with the post of Chief Magistrate under that same Constitution.
Sixty days is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let's hope the administration will listen.
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I don't think anyone can rely
I don't think anyone can rely on any form of concsience protection whether it be church or government anymore, with a leaning to the former.
At some point, I question the
At some point, I question the credentials of any medical professional who agrees with the Church that life begins before gastrulation.
The Church is behind the 8
The Church is behind the 8 ball on this one, precisely because it indulged in sour grapes over losing on Health Care Reform - when not getting much of what it wanted was its own fault for not being able to switch a single GOP vote in the Senate on going to the conference and final passage. Its bad behavior has consequences and one is that quite a few people will likely sit out this issue.
"Conscience Regs Are Totally
"Conscience Regs Are Totally Inadequate"
- Statement of the obvious that can only come from someone who thought they actually WOULD be.
Newsflash Winters: They were NEVER meant to be adequate.
Regarding: "There is a First
Regarding: "There is a First Amendment guarantee that Congress make no law restricting the free exercise of religion."
- I wonder if the problem in the issue is that the proposed rules are treating institutions as if they have a moral conscience. Seems to me, in a way, that the constitution was written with an eye to protect individual conscience not necessarily institutional freedoms. Thus, if individuals with freedom of conscience desire to do or not to do something (within the bounds of law, morals or faith) then their decisions are made safe by the constitution. Their decisions are also made safe if as their individual moral acts they work through institutions of their own establishment or control. Thus it is not the institution that requires freedom but the individual who act as individual in an institution.
- What this would mean is that instead of allowing an institution, like a diocese or a catholic health clinic not to do something 'conscience rules' require individuals to act positively for their own conscience. So, if the people who run a catholic social service determine that, for reasons of conscience, certain drugs or advice will not be dispense or provided then they act so that the institution does not have these items available and the individuals making these decisions are made safe conscience regulations.
- This of course would mean, for example, that a catholic doctor can not be forced to perform a procured abortion in a public hospital, and it also means that catholic social services would need to hire managers who agree that providing certain services fall outside of the requirements of their church and of their faith.
The problem with allowing
The problem with allowing religions to limit health care is that health care becomes not just an issue of medicine and science. Do you really want the government to allow health care decisions based on what the Catholics believe, what the Jehovah Witnesses believe, and what the Christian Scientists believe? Maybe we should take into account the beliefs of those who practice yoga medicine and faith healing?
Or, do you want government policy based on what medicine and science say?
The problem is that when religious organizations make health care decisions, health care becomes not an issue of medicine and science but the gourd rattling of shamen - with the shamen calling the shots.
There is room in the regulations for individuals - doctors, nurses, and other health care workers - to refuse to take a specific action that is in violation of their personal conscience - no individual doctor is required to perform a tubal ligation and no individual nurse is required to assist. There is certainly room for an individual person to refuse a recommended medical treatment even if the medical establishment is willing to prescribe or perform it. So health care providers and health care consumers have the ability to make choices based on their individual conscience.
There is room for group conscience, as long as the group conscience does not violate the individual conscience. So, the Church can have a health insurance policy for priests, nuns, and those who work directly for the Church that excludes birth control, for example. The regulations will allow a hierarchy to impose a "group conscience" on all individuals in the group, assuming, I suppose, that those who don't like it will leave. But, if the Church wants all catholic service organizations (not the religious organizations themselves) to abide by limits proscribed by the faith, then the Church needs to pursuade each individual who is a part of that organization of their rightness. Otherwise, what we have is one conscience violating the freedom of another. (Good luck on that. Just look at the fact that over 90% of Catholic women use/have used artificial birth control. The bishops may speak for the Catholic church, but they do not always speak for Catholics.)
I think the regulations represent a balance that is needed: individual conscience is protected while there are limits to the ability of one to impose his/her conscience on another. The government is a civil government, not a church government.
I would seek health care for my daughter in Bangladesh before I would let Bishop Olmsted control decisions about what health care is available to her.
"Maybe we should take into
"Maybe we should take into account the beliefs of those who practice yoga medicine and faith healing? "
- You can avoid that now. Just don't go to some 'holistic' medicine guru. You also don't HAVE to go to a Catholic hospital. It's not like the Catholic Church controls every hospital in the country, you know.
"But, if the Church wants all catholic service organizations (not the religious organizations themselves) to abide by limits proscribed by the faith, then the Church needs to pursuade each individual who is a part of that organization of their rightness."
- I think you are either NOT Catholic or you are a Libertarian. No the Church does NOT have to do this, no more than, in the field, a Marine sergeant does not have to argue and convince each of the individual privates under his command in order to carry on a strategy. By branding yourself 'Catholic', or being part of a 'Catholic' organization, you are agreeing to certain things. For example, you can NOT preform 'mercy killings' on the elderly, you can NOT kill someone because they are mentally handicapped, etc. Even YOU agree to that point. Would you really think that, say, an Islamic based food kitchen should have to convince each person not to cook bacon?
"There is room for group conscience, as long as the group conscience does not violate the individual conscience."
- If a doctor at a Catholic hospital's individual conscience tells him it is perfectly fine to kill a newborn child who has Downs, for example, he does not belong at a Catholic hospital. He doesn't belong in a hospital at ALL, actually. There are quite a few situations where, yes, 'group conscience' as you like to call it, VERY MUCH outweighs individual conscience.
You see, if you brand yourself as 'Catholic', you are agreeing that there are some things you would never do. If you don't understand that, then you don't understand the Faith at all, as under your definition, the word 'Catholic' is abstracted to the point of meaninglessness.
And there are just some
And there are just some things you must do. When one sees bland inconsitencies, they have to speak up.
We have the shepherd of a diocese in a country town in Victoria, where a parlimentary inquirey is being sort by investigators for the suicide of dozens of young Catholics due to sexual abuse, stating: 'While conceding a sex-abuse of children was wrong, it had not always been clear what was and what was not wrong inappropiate..
This shepherd with Canon Law creditations, being a member of the Australian Catholic Bishops Conference, would not be making a public statement off his own bat, he would have to have the approval of all sitting bishops.
This bishop was Vicar General in the Melbourne Archdiocese when St Vincents was facilitating an avenue for women "in situations created by clergy'.
Nothing inappropiate with that either I suppose.
Oh boy, if even NCR thinks
Oh boy, if even NCR thinks they're too far to the left...that can't be a good sign for the pro-life movement.
I agree that these
I agree that these regulations are unacceptable and I wish that there didn't have to be a fight to have real protections in the regulations. However, I want the USCCB to provide me with the tools I can use to enter into real conversation with my secular friends, most of whom work with and advocate for the poor, to help them understand why better regulations are critical and in their interest as well.
The USCCB's initial response is not pastoral--to many it comes across as a shrill partisan attack on Obama's HHS, as just a continuation of its rabid attacks on health care reform. It does not seem to follow Augustine's precept of "IN ESSENTIALS UNITY, IN NON-ESSENTIALS LIBERTY, IN ALL THINGS CHARITY." It doesn't open up a dialogue, but rather makes people take a defensive stand immediately, closing off avenues for a change of mind/heart.
I am a young progressive feminist pro-life Catholic. I also work in the health care industry where, every day, I am confronted with the reality of people who die prematurely because of lack of access to preventative health care. During my last year of law school, I served as a student public defender for an indigent mentally ill pregnant woman, fighting against a private jail that was denying her both prenatal and mental health care until I ensured she was able to give birth in dignity and freedom surrounded by her family.
From my friends' perspectives, they read the tone of the USCCB's response and immediately become defensive, thinking, "When everybody else is excited that women will now have access to preventive health care that will literally save lives, all the Catholic Church does is condemn everybody that doesn't view sexuality in the exact way it does. Didn't Jesus have a special concern for the sick? Why should we give anything special to an organization that has used its privilege to protect child molesters, transferring priests around after repeated reports of abuse?"
Because of the tone of the USCCB and some bishops, they don't hear the key point: robust protection of conscience is important for American democracy. When they are willing to listen to me, I take half an hour and explain to my friends the broader context of Catholic Social Teaching, the history of the separation of church and state in the US, the Theology of the Body, Humanae Vitae, the Catholic Church's central and impressive role in health care in this country, John Courtney Murray, heck Aggiornamento and Ressourcement (sometimes it seems to take that)...and eventually get them to understand why the bishop's fundamental position has an authentic foundation and is not based on misogyny, like it initially came across to them.
If, instead, the USCCB took a tone of real charity without compromising its clear opposition to portions of the regulations, like the Catholic Healthcare Association has done, I wouldn't need to give a course in Catholicism and Society, but could quite quickly and persuasively explain why strong conscience protections aren't just important for Catholics, but for all who care about freedom of religion and the separation of Church and State.
My friends--young progressive activist/policy types--are willing to listen and learn from me when I try to inject charity into the discussion. Imagine what kind of evangelization on these important issues could be accomplished if I, and many of my fellow young parishioners, didn't have to start in an unnecessarily disadvantaged and poisoned atmosphere.
It's a little late for
It's a little late for objecting now, Sean. Seems I recall a number of people warning you that if Obama's healthcare program was passed it would come to this. But you wouldn't listen. Now you want readers "to call on the administration to be true to the best in the liberal tradition". Sounds like, "Let's just all remind the President of what he promised us Catholics and he'll surely listen". Good luck with that.
It's a little late for
It's a little late for objecting now, Sean. Seems I recall a number of people warning you that if Obama's healthcare program was passed it would come to this. Now you want readers "to call on the administration to be true to the best in the liberal tradition". Sounds like, "Let's just all remind the President of what he promised us Catholics and he'll surely listen". Good luck with that.
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