A Better Solution to HHS Mandate Mess

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.

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.