White House Takes Another Step In Right Direction

by Michael Sean Winters

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The White House took another stab at reaching some sort of agreement on the contentious issue of the HHS mandates regarding women’s preventive services, releasing new analysis of the prior accommodation, as well as new proposed rules for self-insured religious entities.

The most notable thing about Friday’s announcement is that it was made at all. Ever since Congressional Republicans held an all-male panel to discuss what many see as a women’s health issue, displaying a tone deafness surprising even to me, and Rush Limbaugh contributed his brand of misogyny to the debate, the issue of the HHS mandates has been re-cast less as a religious liberty issue and more as a contraception issue. This framing is important: If the issue is cast as a religious liberty issue, it works for the USCCB and congressional Republicans. If cast as a women’s health issue, it works for the Democrats. And, the Democrats have been making money hand over fist since Limbaugh’s outrageousness. Politico reported yesterday that fundraising at Emily’s List in 2012 has already outstripped their haul for the entire 2010 election cycle. Two months versus two years. That fact alone should counsel a different strategy on the part of those concerned with the religious liberty implications of the issue. So, the White House could have just let the pot simmer, but instead, they are moving ahead, trying to find common ground. This is encouraging.

Secondly, much of the actual content of the administration’s announcement is welcome. Self-funded plans at religious institutions are exempted from the requirement of having to provide the objectionable coverage and the administration suggests three different ways for the administrators of the self-funded plans to pay for the coverage. This approach is similar to the February 10 accommodation, shifting the mandate from the employer to the insurer. This may be a bit gimmicky, but sometimes gimmicks work. Before anyone denounces the arrangement, we must at least acknowledge that it does, in fact, address the strict issue of coercion of conscience: Those institutions subject to the accommodation do not have to do anything, so it is difficult to sustain the argument that they are being coerced. That said, the arrangement still entails entanglement some may find objectionable, seeing as the vehicle for delivering the coverage remains the plans purchased by the institution.

The White House also noted that the original exemption is more expansive than first thought. For example, they make explicit that if a diocese is exempt, and parish schools get their insurance via the diocese, the schools are also exempt. This was unclear before, and it is not unclear now, and that is all to the good.

Nonetheless, the White House has refused to budge on the four-part definition of what constitutes an exempt organization and this remains the principal obstacle. The four-part definition, with its pernicious requirement that an exempt organization primarily hire and serve co-religionists, is problematic especially for progressive Catholic supporters of the administration because it is precisely those progressive Catholics who are most concerned about the Church’s ministries in the world. It is not the Catholics on the left who have been attacking CCHD! And, the USCCB is absolutely right to point out that this language could become a precedent for future regulations even though the new language announced by the White House explicitly says that this rule is not to be understood as a precedent. Why, then, are they so intent on sticking to it?

The White House has taken several steps towards addressing Catholic concerns, but it remains unable or unwilling to address the central concern: the four-part definition. The situation at the White House reminds me of what happens when you go to certain restaurants. The restaurant manager has created an incentive for her waiters to sell the shrimp special, so as your waiter delivers the cocktails, he tells you how delicious the shrimp special is. You mention that you are allergic to shrimp. He replies that the sauce on the shrimp special is spectacular. You repeat that you are allergic to shrimp. He tells you the shrimp special goes so nicely with the pinot grigio, and the restaurant offers that wine by the glass. The waiter is not really listening and he looks disappointed when you order the rockfish.

Of course, one of the reasons the waiter may not be listening is because there is a lot of ambient noise in the restaurant. In this case, that ambient noise has a name: the demand for an individual exemption. The bishops reiterated that demand last week and, as I pointed out previously, the language they used exactly mirrors that used by segregationists who opposed civil rights legislation. I fear, and fear greatly, that in their rush to respond to the HHS issue, the bishops are making unforced errors, and I say this as someone who still deeply wants to find a better solution than the ones the administration has proposed. Wider consultation is highly recommended.

Then, Thursday night, Bishop William Lori, head of the USCCB’s ad hoc committee on religious liberty went on EWTN and told Raymond Arroyo that it is not enough to cover Catholic organizations, that groups like EWTN should be exempt too. This is rich. EWTN, you may recall, was once owned by Mother Angelica’s religious order. At the time of the apostolic visitation of her order, the visitor explicitly asked Mother Angelica not to turn over control of EWTN to a lay board while his visitation was on-going. She did so the very next day. For Catholics, an association with the local bishop is what defines the difference between a Catholic organization and an organization of Catholics. EWTN is, in this regard, no different from Voice of the Faithful, the progressive advocacy group. And, anytime I see a group that wants it both ways, I find their pleas for special consideration unconvincing.

The real problem here is that a better solution would probably require legislation and getting a bill through Congress at this time of year is unlikely. Nor is it obvious that we will be able to strike down the four-part definition in the courts, although I think the facts of the case are sufficiently close to the facts in Hosanna-Tabor to justify a shot at a judicial remedy: If, as the court held in that case, the government has no business telling a church who is and is not a minister, why should the government be able to decide what is, or is not, a ministry?

I return to my original point and wish to call it to the attention again of the USCCB staff and the bishops they serve. The White House had no political incentive to try to take a step towards us, but they did anyway. Do not put out the flickering wick! I am not sure that if you put Cardinal Dolan and President Obama in a room, they couldn’t hammer this out in an hour or so. I know some Catholics think the White House is engaged in a “war on Catholics.” Not only is that false, as this latest statement shows, but I would remind my conservative Catholic friends that war is only justified under Just War theory if you can win, and if you think you can win, ask Speaker Boehner why he pulled the Fortenberry bill. Rush Limbaugh changed the debate in ways that are, I think, irrevocable. If ever there was a time for prudential engagement with the administration, now is that time.

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