Why Birth Control is Not Shellfish

February 29, 2012, 11:55 am | Posted by

Two weeks ago during Rep. Darrell Issa’s hearing on the contraception mandate and religious liberty, Catholic Bishop William Lori made an elaborate analogy in his testimony comparing the mandate to a kosher deli being forced to serve pork to its customers.

As I explained, this was a terrible analogy. Employers providing health insurance are entirely different than restaurants serving customers, and birth control is nothing like pork.

Apparently, the Becket Fund for Religious Liberty’s Asma Uddin didn’t get the message. Responding to a question from Chairman Smith at today’s Judiciary Committee hearing on the same subject, Uddin made the following similarly problematic analogy:


SMITH: What are other examples, what else could the government force religious organizatiosn to provide if this madnate were to remain in effect as is unchanged.

UDDIN: Well, I mean, this mandate has been justified on the basis of the fact that there’s health benefits to providing contraceptives. But the issue of health benefits is not the point. If the government mandated everything that had positive health benefits, it could possibly mandate that everyone drink red wine for heart health even though it violates the religious beliefs of Muslims and Mormons. And it could mandate that everyone eat shellfish even though that violates the religious beliefs of Jews.

Uddin’s comments hearken back to the conservative canard that the Affordable Care Act’s individual coverage mandate would allow the government to force you to eat broccoli.

I don’t know what it is with conservatives and force feeding, but let’s be clear here; no one is going to force anyone to ingest anything, pork, shellfish, birth control pills, you name it. Nor, as Republican committee members fretted about in the hearing, does the government now have the power to force individuals to stop smoking, exercise or make any other personal behavior changes.

The policy question at stake is about setting a minimum requirement of services in commercial health insurance plans — services that are optional for the planholder to use.

Even if Uddin were complaining that the preventive service coverage requirement merely sets a precedent for the government to require that shellfish and wine be included in this list of mandated services in the future, she’d still be off base.

The required free preventive services such as cancer screenings and contraception were recommended by the independent Institute of Medicine (IOM), which reviewed evidence-based scientific and medical research and expert opinion to develop a list of services that fit the guidelines set out by Congress in the Affordable Care Act. So long as the IOM isn’t supplanted by the National Restaurant Association, we don’t have to worry about doctors being forced to write prescriptions for shrimp cocktails.

The IOM’s review was professional, rigorous, comprehensive and open to public comment. To suggest that this process might lead to frivolous inclusions of random foodstuffs demonstrates both a misunderstanding of the system and disrespect for the experts involved.

Exasperated protestations against the unprecedented consolidation of power by a “Big Brother” government intent on taking control of every aspect of Americans’ personal lives may make for exciting campaign speeches, but they have absolutely nothing to do with the policies in question.

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Faculty at Catholic College Urge University President to Drop Opposition to Contraception Accommodation

February 29, 2012, 9:00 am | Posted by

John Carroll UniversityIn 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.

From dotCommonweal:

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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Legal Expert: Contraception Regulation is no “War on Religion”

February 17, 2012, 4:01 pm | Posted by

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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Did Obama’s Religious Accommodation Satisfy Catholics?

February 17, 2012, 3:05 pm | Posted by

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:

Obama Approval Rating Among Catholics

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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Christian Health Law Expert Sees No “War on Religion” and No “Accounting Gimmick” in Contraception Policy

February 17, 2012, 9:38 am | Posted by

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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