Countdown on Conscience

by Michael Sean Winters

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This is the final week in which the Department of Health and Human Services is accepting comments from the public on its proposed new rule regarding mandated coverage in insurance programs. The mandate would require insurance plans to include coverage for contraception, sterilization and some drugs that are considered abortifacients. As regular readers know, I have been making the case since the day the rule was announced that the conscience exemption it contained was far too narrow. I encourage everyone to make your voices heard this week as well.

The USCCB has likewise not been shy about their objections to the new rule. Earlier this week, I sat down with Richard Doerflinger, the Deputy Director for Pro-Life Activities and with Anthony Picarello, the General Counsel of the USCCB to discuss what the bishops’ conference has done so far. “We have filed comments officially with the HHS,” said Mr. Doerflinger. “And our bulletin insert campaign has begun yielding results. We have had over 32,000 comments filed with HHS using the link provided on our bulletin insert." Doerflinger also mentioned that the USCCB testified as at the Institute of Medicine’s (IOM) hearings on the issue. The IOM made the recommendations to HHS.

To be clear, the issue facing the HHS is not really contraception. This issue is conscience. If the federal government can require private plans to cover contraception, it can require that they cover abortion. The precedent will have been established. The bulletin insert notes that “Never before has the federal government required private health plans to include such coverage?” I read that and thought to myself, well, duh, there has never before been national health insurance reform. But, Picarello pointed out that the government has, in fact, mandated coverage in other situations but has accompanied those mandates with a broad conscience exemption. “This is unprecedented. In prior situations where the federal government mandated care, for example, with the federal employees benefit program, there is a robust conscience exemption." Picarello is a lawyer, and talking about a legal document with a lawyer is like going to a 3-D movie and only the lawyer gets the special glasses. He sees things that the rest of us miss. Unless these conscience exemptions are broadened, the Obama administration really will be changing the playing field.

The issue of abortifacients is especially problematic for the administration. The President himself, in the most public manner possible, affirmed that the health care reform law would not provide federal funding for abortions. He drafted and signed an executive order to that effect. The issue of abortion funding came up last summer when one of the first parts of the new law was implemented, the high risk pools. “We have to monitor all this closely. HHS ended up doing the right thing with the high risk pools last summer, but only after it was called to their attention that three states - Pennsylvania, New Mexico and Maryland - had already begun enrolling people in pools that included abortion coverage," notes Picarello. And Doerflinger points out that while it is not clear if some emergency contraceptives act as abortifacients, there is no doubt about the drug “Ella” (ulipristal). “It was especially distressing to see a drug like Ella included. Both CHA [Catholic Health Association] and the USCCB have stated clearly that it is an abortifacient."

Some politicians and analysts have wondered if the USCCB is not crying wolf. Certainly, the USCCB’s 2009 postcard campaign against the Freedom of Choice Act (FOCA), a bill that had exactly no chance of even getting out of a committee, let alone making it to the president’s desk, struck many political observers as an unserious broadside against the incoming Obama administration. Others have pointed to Connecticut, where the bishops strongly opposed a mandate that all hospitals provide emergency contraception. The bishops warned they would have to close Catholic hospitals. The legislature passed the law anyway and the Republican governor of the state signed it into law. Then the bishops said that because it was not clear that the emergency contraceptives acted as an abortifacient, there was no material cooperation with evil after all. “The situation in Bridgeport was different,” Doerflinger told me. “It was not clear that the practices and procedures mandated by the CT law involved inducing an abortion. Ella induces an abortion. There is not doubt about that."

Another key worry at this time is how the new mandates will affect Catholic colleges. Even if the conscience exemption is broadened to include Catholic colleges and universities as employers, many if not most schools also offer coverage to students. “It is not clear that by exempting Notre Dame or Catholic University as employers, you would exempt their coverage of students as well,” says Picarello. “There is no reason to require us to litigate that point. The ambiguity should be cleared up now."

“The Conference has gotten it from all sides on this issue but we have been consistent throughout.,” says Picarello. “Health care for everyone that harms no one. That has been the Church's consistent position." Doerflinger said that he got an email from someone that said, “'Let it alone so it will be easier to kill the entire law.” But, Doerflinger continues, “as we have stated clearly, we want to fix the health care reform law, not repeal it."

"If the exemption is not widened, it will leave all Catholic institutions with a range of really bad choices,” says Picarello. “Why would anyone want to force that on us?" Adds Doerflinger: “What are we supposed to do? Refuse to permit non-Catholics in our schools? Only serve Catholics in our soup kitchens?"

It is no insult to point out that Picarello and Doerflinger are unable to say something important and even urgent on this issue. Their job is to defend the interests of the Catholic Church and the teachings that it holds. They cannot get too far down into the mire of partisan politics. But I can. It is important that the USCCB send in its official comment on the new rule, as it has. And, it is important that those who got their bulletin inserts do the same. But, it is especially important that those of us who support President Obama and who backed the health care reform law specifically send in our comments and write our letters to the editor. Sr. Carol Keehan of the CHA has done so. Professor Stephen Schneck and a host of academics have done so. It is my sincerest hope that NCR readers will step up to the plate as well. The period for public comments closes on Friday. Here is the link to the USCCB website where you can easily find out how to make a comment. But, instead of just making their suggested text your own, if you voted for Obama and if you supported the health care reform law, make that fact known at the very top of your comment. The administration may or may not think it has to pay attention to the USCCB. It had better pay attention to the people who have supported them in the past.

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