In another piece of news about Catholics reacting positively to the Obama administration’s religious accommodation on contraception coverage, faculty members at John Carroll University have written a letter to their university president urging him to drop his opposition.
47 of John Carroll University’s roughly 215 faculty members signed a letter to school president Robert L. Niehoff, SJ, asking him to accept the contraception “accommodation” and include such coverage in employee health plans. The faculty members express their concern that “the bishops have chosen a path of continued confrontation.” Given that the bishops “have rejected the accommodation offered by the administration,” they continue, “leads us to wonder what motivates their continued resistance.”
These faculty members join the Catholic Health Association, the Association of Jesuit Colleges and Universities, Catholic theologians and Catholic social justice leaders in expressing support for President Obama’s sensible approach to protecting the conscience rights of religious employers and women’s health.
In contrast, Catholic bishops have continued to fight the Obama administration, insisting that their particular legal analysis is the only valid Catholic position. But just like the way the Bishops’ misconceptions about abortion funding became a contentious issue in the health care reform debate, this controversy isn’t simply a matter of moral principles, but rather a policy question of how to apply those principles in a complex legal and regulatory environment.
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Republicans’ witnesses at yesterday’s House Oversight Committee hearing on the HHS religious exemption on contraception coverage unanimously condemned the accommodation released by the White House last week in response to initial concerns from religious employers.
The accommodation, which was commended by numerous religious organizations (including the Catholic Health Association and the Association of Jesuit Colleges and Universities) that expressed opposition to the initial regulation, ensures that religious employers neither have to pay for contraceptive services to which they morally object nor facilitate their employees’ access to them.
But critics of the policy, most prominently the Catholic Bishops who had a representative testify at yesterday’s hearing, are dismissing the accommodation as not solving their financial fungibility concerns; some are describing it as a mere “accounting gimmick.”
An analysis released today from prominent health law expert Timothy Jost (who dispelled the false claim that the Affordable Care Act included federal funding of abortions), takes issue with this characterization and validates the accommodation’s legal protections:
This rule is not a “war on religion,” but is rather an attempt to accommodate a serious public health need and a sincerely held religious and moral conviction. The regulation does not require anyone to use contraception nor does it require any religious organization that objects to contraception to pay for it. It neither prohibits nor requires a religious belief or practice.
In a related theological argument, David Gibson explored Catholic Moral Theology’s nuanced proscriptions about various levels of “cooperation with evil” in USA Today this week:
Under traditional Catholic thinking, Catholic employers whose insurance companies provide contraceptive coverage to employees at no cost to the employee or the institution, and without the institution’s involvement, are engaged in what is called “remote material cooperation” — a perfectly legitimate way for a Catholic individual or organization to function in a sinful world.
“In fact, unless you live in a monastery that doesn’t have investments, it’s unlikely you are innocent of remote material cooperation with something the church condemns,” Matthew Boudway, an editor at Commonweal, a lay-run Catholic periodical, wrote on the magazine’s blog.
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When the Obama administration announced in January that it would not broaden the religious exemption to the mandate that employer-provided health care plans cover contraception religious and political commentators had a lot to say.
Initially, many pundits voiced strong critiques of the move from an electoral politics standpoint — arguing that President Obama was alienating moderate Catholic voters in key swing states like Pennsylvania, Ohio and Michigan.
Now that the Whtie House has moved to broaden the religious exemption, political scientist John Sides takes an in depth look at recent polling to try to determine if these predictions bore out.
Separating the data into three distinct time periods, Sides tentatively suggests both that the announcement correlated with a political dip in the President’s approval rating among Catholics and that the compromise appears to have rectified it:
Approval among non-Catholics increased slightly across the 3 periods: from 47% to 49% to 50%. But among Catholics there was a 3-point dip after the Jan.20 announcement (from 44% to 41%) and then a rebound after the compromise (back to 44%).
Sides also segments the data further by political ideology, mass attendance, and stances on abortion and suggests (tentatively of course) that:
The Catholics whose approval rating dropped most precipitously already overwhelmingly disapproved of Obama. It seems unlikely that many of them would have voted for him anyway.
As the U.S. Catholic hierarchy (and presidential campaign opponents) are clearly not done educating and organizing Catholics about their views on this policy, and some of the details of the accommodation remain unresolved, none of these results are written in stone. But at least in the short-term, some polls correspond with the view that the administration’s accommodation was a successful response to the concerns of many Catholics.
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Legal expert Timothy S. Jost of Washington and Lee School of Law, a Christian who has more than 30 years healthcare law and policy experience, has released an analysis of the President’s updated contraception policy.
According to Jost, the Obama Administration’s rule is not a “war on religion” and does not “require any religious organization that objects to contraception to pay for it.”
Jost points out that requiring insurance companies to offer employees of objecting religious organizations free contraception is not “an ‘accounting gimmick’ under which employers in fact pay for coverage against their beliefs, but [is] in fact paid for by the insurers out of savings that they realize by offering contraceptive coverage.”
Jost’s full analysis may be found here: http://law.wlu.edu/faculty/facultydocuments/jost/contraception.pdf and below:
Analysis of the Obama Administration’s Updated Contraception Rule
Timothy Stoltzfus Jost
Washington and Lee University
It is most unfortunate that a regulation intended to ensure privately-insured Americans access to preventive care without the burden of cost sharing has unleashed a political maelstrom, including claims that the Obama administration is engaged in a “war on religion.” The regulation, published on February 15, 2012 implements section 2713 of the Public Health Services Act. Section 2713, enacted through the Affordable Care Act, requires group health plans and health insurers to cover various preventive services (such as vaccinations and screening and counseling services) and to do so without cost sharing. Congress adopted this provision based on evidence that access to preventive services without cost sharing (copayments, coinsurance, or deductibles) results in greater use of those services. This in turn results in better health. Access also saves money because avoidable conditions are prevented and treatable conditions are detected earlier.
Section 2713 provides specifically that insurers must cover women’s “preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration . . . “.
Among the preventive services recommended by HRSA are:
All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity. http://www.hrsa.gov/womensguidelines
HRSA recommended that contraceptive services be covered on the basis of a consensus report by the Institute of Medicine http://www.iom.edu/Reports/2011/Clinical-Preventive-Servicesfor-Women Closing-the-Gaps.aspx finding health benefits for both women and babies in planned pregnancies. All group plans and issuers that do not have grandfathered status must implement this coverage for plan or policy years beginning after August 1, 2012.
Insurance coverage of contraceptives is common in the United States. Twenty-eight states have laws requiring health insurers to cover contraceptives. Studies cited in the preamble to the regulation found that over 80 percent of insurers and large employers already cover contraceptives. Several court decisions have held that an employer’s failure to provide contraceptive coverage is illegal sex discrimination.
Nevertheless, some religious groups, notably the Catholic Church, teach that contraception is wrong. These religious groups employ thousands of Americans and provide them with employee health benefits. Thus the agencies implementing the ACA attempted to reach an accommodation between the public health objective of increasing access to preventive services and the goal of protecting religious freedom.
The first response of the administration to this issue was to exclude “religious employers” from the contraceptive coverage requirement, defining the term to mean churches and their integrated auxiliaries, conventions, and associations and religious orders that have inculcation of religious values as their purpose and primarily serve and employ persons who share their religious tenets. Churches and other organizations that fit in this category do not have to provide coverage for contraception at all.
This exception did not, however, cover religious hospitals, universities, or charities, some of which objected to contraceptive coverage. But these institutions often employ women who do not hold to the religious beliefs (or follow all of the teachings of) their employer, and excusing all of these employers from compliance would deprive these employees of access to contraceptive services.
The Administration, therefore, created a second exception through guidance. This exception establishes a safe harbor for one year (until August 1, 2013) from enforcement of the regulations to protect non-profit organizations with a religious objection to covering contraceptive services. During this moratorium, the agencies will propose a permanent rule that will require insurers to offer insurance to these religious employers without contraceptive coverage. But the insurers will have to offer free coverage of contraceptives without costsharing for any employees of these religious employers who want it. Health plans will be able to offer contraceptive coverage for free because, according to studies cited by the government, contraceptives cost substantially less than pregnancies. The free coverage is not, therefore, an “accounting gimmick” under which employers in fact pay for coverage against their beliefs, but coverage will in fact be paid for by the insurers out of savings that they realize by offering contraceptive coverage. This second exception leaves outstanding only the issue of coverage of contraceptives by self-insured religious employers, which is still under consideration.
This rule is not a “war on religion,” but is rather an attempt to accommodate a serious public health need and a sincerely held religious and moral conviction. The regulation does not require anyone to use contraception nor does it require any religious organization that objects to contraception to pay for it. It neither prohibits nor requires a religious belief or practice. Accommodation of religious belief and “neutral laws of general applicability” is not an easy task. I am a religious conscientious objector and object to the requirement that I must pay taxes to support war. Yet I do not consider the federal government to be at war with religion, even though it makes no accommodation for my religious beliefs, much less the accommodation that it affords those who object to contraception. For two centuries that United States has been conducting an experiment virtually unprecedented in human history—a government that neither establishes nor forbids any religious beliefs. Sometimes, as with respect to laws prohibiting polygamy in the nineteenth century or my objection to war taxes, it has offered no quarter to minority beliefs. In other situations, as with the implementing of the preventive services requirement, the government has gone a great distance to accommodate minority beliefs, while at the same time trying to accommodate the needs of the majority. As a member of a religious group that has always been in the minority, and is likely to stay there, I rejoice in this ongoing experiment. President Obama, himself a professed Christian, is not at war with religion, his administration is rather trying to find a peaceful solution to one of the many conflicts over religious values that characterize our diverse nation.
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The most prominent witness at today’s House Committee on Oversight and Government hearing on religious freedom was The Most Reverend William E. Lori, Catholic Bishop of Bridgeport Connecticut.
For his opening statement, Bishop Lori made an elaborate analogy between religiously-affiliated institutions being required to include birth control coverage in their insurance policies and a kosher deli being hypothetically required to serve pork to its customers.
From the perspective of the religious institution, Bishop Lori is right in his assessment that Catholic views on birth control are roughly equivalent to Orthodox Jewish views on pork.
However, his analogy ultimately fails because he neglects to consider the other set of competing rights here — those of individuals whose health care will be affected. When it comes to the life and health of individual Americans, birth control is nothing like pork at all.
Pork, while delicious, does not have a host of positive impacts on individual and social health outcomes. Eating pork does not help ensure that infants are not born premature or suffer from low birth weight. Families who eat pork are not less likely to get early prenatal health care, or have more economic difficulties and relationship problems. In short, there’s no particular government interest in ensuring people have access to pork.
A more appropriate analogy would be other medical service to which religious organizations or individuals object. In this case, a better example perhaps would be whether Jewish employers need to include in their health insurance policies coverage for insulin made from pigs or a porcine heart valve.
Suppose an employee at the kosher deli learns he has severe cardiac disease and needs a heart valve replacement, only to discover his employer refuses to cover it. What if he is unable to pay for the surgery out of pocket? Should every employee of the deli worry that any given trip to the doctor might result in a death sentence of an otherwise curable malady?
Opponents of the regulation might suggest that potential employees should know ahead of time that these procedures wouldn’t be covered by the deli. They choose to work there at their own risk and are free to find a new employer. But for one, is a deli really the same in its religious identity as a synagogue? Is it reasonable to expect employees to believe they are enacting a religious mission by serving sandwiches?
And second, should an employee be forced to make that choice, especially at a time when job seekers out-number job openings by 4-1 and families across the country are still struggling? Do we want to put employers between people and their doctors, letting a boss decide what treatment his employee is allowed to get?
Finally, any of these religious analogies only cover a small portion of the danger presented by proposed conservative changes to the regulation. The Blunt amendment being considered in Congress right now would allow any employer to drop any service for any moral objection.
Companies could theoretically decide they don’t want to cover pregnancy cost for their unmarried employees, or lung cancer treatment for smokers. And should we really trust that unscrupulous, cost-cutting employers won’t find a convenient moral explanation for their decision to drop all assortments of expensive coverage?
All of these questions are complex and difficult. They require hard conversations and tradeoffs of competing values. To insist, as Bishop Lori and other witnesses as today’s hearing do, that opponents of the regulation can just throw out the words “religious freedom” and close the case on this question is stunningly short-sighted.
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