HHS Mandate (Mostly) Takes Effect

Today, the HHS mandate that insurance policies cover various preventive services for women without cost to the insured takes effect. Religious institutions that did not previously cover controversial items like sterilization and contraception have one more year before compliance is mandatory, during which time it is expected more negotiations will take place and, in any event, the lawsuits challenging the mandate will be heard. In this sense, the one-year “grace period” actually is helpful.

So much attention has been focused on the too-narrow religious exemptions from the mandate, that the political class has largely failed to comment on the host of non-controversial services that are mandated. Yesterday, in a heartfelt moment at a Capitol Hill press conference, Sen. Tom Harkin of Iowa recalled the untimely death of two of his sisters from breast cancer. He noted that they did not have a lot of money and so did not have a lot of insurance coverage. If they had gone in for the kind of cancer-screenings that are now mandated at no cost, would they be alive today? We can’t know the answer to that question, but we do know that the Affordable Care Act, and parts of these HHS mandates specifically, will make it easier for women to get the kind of preventive care that will improve women’s health. And, because the mandate includes free coverage of many maternal needs, these mandates will improve the health of children too.

I would submit that if the press releases from the USCCB, or the letters from the pulpits, or the statements from the Becket Fund had started with the kind of observation I have just made, that they support the idea of women having increased access to preventive services, this whole debate would have been less contentious. As well, the argument put forward by the USCCB, and those of us who support that position, would have had a better chance of winning in the court of public opinion.

If the negotiations between the USCCB and the White House were going to find a compromise regarding the mandate, yesterday would have been the time to announce it. It appears that both sides are confident about their prospects in the various lawsuits that have been filed challenging the mandate. And, politically, it is hard to see any upside for the White House to reconsider the issue. If some compromise was reached, I doubt that some bishops would cease their denunciations of the president, the comparisons to Hitler, the repetition of various Fox- or GOP-generated talking points, and without the promise of a wholesale end to the conflict, why would the White House risk angering women’s groups that do not see any need to compromise. And, as mentioned yesterday, the GOP leadership of the House has backed off finding a legislative remedy because Mr. Limbaugh changed the entire framing of the debate with his demeaning remarks about Ms. Sandra Fluke.

Most Catholic institutions, as opposed to individual Catholic employers, now have one year to figure out how to respond to the mandate. Negotiations with the White House will continue. President Obama famously whispered to Mr. Medvedev that after the election he would have more flexibility. Let’s hope the White House is whispering something similar into the ears of the USCCB negotiators. The lawsuits will continue. I happen to think the plaintiffs have a strong case. Not so much on First Amendment grounds post-Employment Division v. Smith, which is still governing law and which the Court specifically declined to overturn when it ruled earlier this year in the Hosanna-Tabor case, even though the whole thrust of Hosanna-Tabor was to counteract the arguments in Smith. But certainly as regards the Religious Freedom Restoration Act, the lawsuits filed by Catholic institutions seem strong. RFRA insists that the federal government not only demonstrate a “compelling government interest” in enacting a policy that burdens religious liberty, but that the policy was adopted using the least burdensome means of achieving the government objective. For the sake of argument, I will stipulate that the government has a compelling interest in providing free access to contraception. But, I do not see how this method – an employer mandate – can be construed as the least burdensome method. After all, in sworn congressional testimony, Kathleen Sebelius admitted that she had not really considered the constitutional ramifications of the mandate, a shocking admission seeing as RFRA specifically requires her to consider those ramifications and find the least burdensome way through them.

There is another task for Catholic institutions in the coming months. We need to think through the debate that has emerged between those who argue that religious institutions should be exempt from the mandate and those who also insist that individual religiously motivated employers should be exempt. This is not an easy issue. The idea of an individual exemption seems deeply problematic to me. Say, God willing, Roe v. Wade were overturned and some states enacted laws restricting abortion. Could a doctor claim an individual conscience exemption from the restrictive laws and continue to perform abortions? The foundational text for the Catholic theological community is Dignitatis Humanae, the Second Vatican Council’s Decree on Religious Liberty, a text that has built-in tensions between its different parts, tensions that must be examined and, to the extent possible, clarified. (I had written the word “resolved” instead of “clarified” at first, but that prejudges the issue – it may be the case that the tensions must be respected, not resolved.) Sadly, too often that document has been cherry-picked for sentences that support one view or another, the way fundamentalists cherry pick their way through Scripture to justify positions arrived at previously.

There is an additional complication. There is one area of the law where individuals do currently enjoy broad conscience exemptions, and should continue to do so: abortion. Doctors and nurses who object to the procedure are not expected to participate in it. This individual exemption is not rooted in the depth of the convictions of the person claiming the exemption but in the nature of the act itself. Whatever one thinks about contraception, I do not believe it shares the same moral content as abortion and we should think twice before trying to extend the idea of an individual exemption from contraception precisely because it will obscure the bright line we have successfully erected around abortion. If, in some not very remote time, a political consensus emerged that is hostile to the idea of individual exemptions, it will be easier to defend them if they are limited to abortion. I readily admit that Catholics in good conscience can weigh these issues differently.

Of course, something else will happen in the months ahead. There will be an election. I do not believe that the issue of the HHS mandates, nor the issue of religious liberty more broadly, should become a single issue for Catholic voters. But, it is an important issue. The president’s promise to fix this last November, and his subsequent reversal in January, left a very bad taste in my mouth and showed us something about the president’s decision-making that is unedifying to say the least. Many of us Catholics who supported Obama’s candidacy in 2008 did so in part because he seemed open to the idea that people of faith, and public policy positions inspired by faith, would be respected by his administration. He repeated that sentiment in his speech at Notre Dame in 2009. That he caved to pressure from women’s groups and the demands of campaign fundraising should leave a bad taste in everyone’s mouth. The historic calling of the Democratic Party is not to make mischief for churches. By siding with those who really do wish to consign religious institutions to the margins of society, or force them to adopt the ethos of the age, the president betrayed not only loyal allies, but his own promise to be respectful of religious sensibilities. Readers may think this should cost him their vote, or they may not, but even the president’s fans, especially the president’s fans, do their party no favor by denying that the White House and HHS has mishandled this about as badly as a political issue can be mishandled, and that the prospect of a Democratic Party committed to such a view of the role of religious institutions in society is one that should fill them with deep concern.