HHS Contraception Saga, Part XXVI

by Michael Sean Winters

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The White House issued yet another iteration of its still controversial contraception mandate on Friday. The most important tweaks to the rule were two. First, religious non-profits, such as charities, universities and hospitals, no longer are expected to fill out a form that is sent to their insurer, who then arranges for the coverage and, instead, these non-profits can merely notify the Department of Health and Human Services which will then arrange for the coverage. Second, for-profit firms, like Hobby Lobby, can now avoid providing the coverage to which they object by filling out the form previously reserved for religious non-profits.

The United States Conference of Catholic Bishops issued a response that was somewhere between tepid and picky. In a statement, Archbishop Joseph Kurtz said, “On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate. Instead, the regulations would only modify the “accommodation,” under which the mandate still applies and still requires provision of the objectionable coverage. Also, by proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom.”

First, I would note that it is nice to see a statement from the USCCB issued in the name of the conference’s president, which gives it a certain stature, a higher degree of authority or significance. It would be nice to see Archbishop Kurtz’s name appear on statements other than those that pertain to this contraception mandate, yes?

Second, at the end of last year, in granting an injunction to the Little Sisters of the Poor, the Supreme Court employed exactly the procedure that is now codified by the Obama administration: Just let the government know that you object, and they will arrange everything. I never saw much of a difference between a letter to the government and a form to the insurer, but if this procedure was acceptable then, coming from the court, why is it now unacceptable coming from the administration. Certainly, the argument that compliance with the mandate is a form of illicit material cooperation with evil, which was not strong before, is now non-existent. I can hear the lawyers at the conference and at Becket complain – but the letter still triggers the coverage? No, the rule triggers the coverage and it is clear the administration’s goal, whether we like it or not, is to make sure as many women as possible eligible for no-cost contraceptive coverage. If the letter “triggers” the coverage, what if HHS just pays for the coverage itself? Would that be illicit? Certainly not, just as we would not be having this debate if the country had a single payer system. But, so wound up and sometimes ridiculous is the lawyerly logic that seems to dominate the conference these days, I can imagine them someday saying we can’t hire any employees at our Catholic non-profits because that might trigger the objectionable coverage. The legal Donatists on the fifth floor need to get out of their echo chamber of fellow right wing legal minds. It seems to the rest of us that the administration just caved. That means you won. 

Third, the conference is right to be concerned about the failure to expand the definition of “religious employer.” Some of us have been arguing from the outset that the principal concern, and only justification, for the litigation was not some tendentious argument about illicit material cooperation with evil, but the integrity of our Catholic institutions. The conference chose not to lead with that concern because it could obviously not extend to religious for-profit employers. Yes, Virginia, when you enter the for-profit market, you shed some of your integrity per se. I consider the University of Notre Dame to be as integral to the life of the Church as my local parish – although I am sure that some bishops would question that assertion! – and I do not think the government should be telling them what to do or otherwise differentiating between a Catholic ministry in the world and a Catholic ministry of worship. If only the conference had been making that point all along, and let Hobby Lobby and Taco Bell fend for themselves, we would have a more cogent and persuasive opposition to the latest iteration the of the mandate.

The bishops are no doubt being told by their staff that we are on a roll in the courts, that this litigation will yield a ground-breaking court decision expanding religious liberty. Perhaps it will, although I suspect many people could go broke betting on how Anthony Kennedy is going to vote. But, court decisions are not always final decisions. The Hobby Lobby case was not decided on constitutional grounds but on the court’s application of the Religious Freedom Restoration Act (RFRA). And, RFRA was itself a legislative response to a court decision in Employment Division v. Smith. I fear that the politics of the issue of providing contraception may prove stronger than any legal reasoning and that perhaps the bishops should look for a better field of battle in their defense of religious liberty.

There is a scene in the movie “Hancock”, starring Will Smith, in which a PR guy is trying to help Hancock re-make his image. He tells him he should say “good job” to police officers and slowly sounds out the two words – “g-g-oooo-dd j-j-j-ob” – trying to get Hancock to repeat them. Someone should try a similar technique with the bishops, getting them to try and say “We won.”

Perhaps the litigation should continue in order to try and establish the fact that there is no distinction to be drawn between our Catholic ministries and our churches. Perhaps. But, someone at the bishops’ conference needs to stand up and say that this whole issue has taken on greater significance than it ever should, it has dominated the public actions of the conference, and cast the bishops in the role of pugilistic litigators at a time when the Holy Father is successfully displaying a different, and I would argue more effective, model of evangelization. There are other issues the bishops might wish to attend to, such as climate change, or the on-going challenge of immigration, or creating greater solidarity with our Latin American brothers and sisters, or examining the ways our own U.S. economy creates a society of exclusion of the kind Pope Francis has denounced, or how they intend to monitor their own brother bishops who thumb their noses at the Dallas Charter for the protection of minors with impunity. The list goes on.

The conference is in meltdown. A source told me that yet another prominent staffer will be leaving soon, adding to the drip, drip, drip of truly fine USCCB staff who have fled in recent years. No representative of the conference staff was even invited to the most important meetings at the White House about the new rule because the administration, not without reason, has concluded that there is nothing they can do to satisfy the USCCB on this issue. And, now, the new rule gives us almost everything we could want. “Www-eeee www-ooo-nn.” Try saying it.   

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