Health Care Expert’s Accommodation Explanation in Politico

March 6, 2012, 1:00 pm | Posted by

Professor Tim Jost’s explanation of why the Obama administration accommodation on contraception in healthcare is not an “accounting gimmick” has now been published in Politico.

A review of Jost’s analysis:

[T]he federal agencies are to propose a permanent rule that will require insurers to offer insurance to these religious employers without contraceptive coverage.

But insurers will also have to offer free coverage of contraceptives without cost sharing directly to any employees of these religious employers who want it. Objecting employers will thus not be required to provide coverage of nor referrals for coverage.

Insurers will be able to offer contraceptive coverage for free because, according to studies, 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. Instead, coverage will be paid for by the insurers — out of savings that they realize by offering contraceptive coverage.

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Why Birth Control is Not Beer

March 6, 2012, 12:27 pm | Posted by

At last week’s hearing on religious freedom and the HHS contraception coverage regulations, Catholic Bishop William Lori admitted that he doesn’t believe (as his support of the Respect for Rights of Conscience Act — also known as the Blunt amendment – would suggest) that the right to religious freedom is limitless. In his own words, “rights of conscience should be broadly accommodated unless there is a compelling government interest.”

And though conservatives want to pretend this debate isn’t about contraception, determining whether the economic and health benefits of birth control exist and constitute a government interest to provide access to those services is the heart of the debate.

Based on the recommendation of the independent Institute of Medicine, the administration concluded that the benefits of access to contraceptive services without co-payment were substantial and compelling; it’s the reason HHS chose to include them in the list of mandatory preventive services in the first place.

The U.S. Bishops and others who oppose the mandate disagree. Separate from their concerns about religious liberty, they argue that birth control is a widely available, physically harmful vice that leads to immoral behavior and should not be promoted by the government. Or – as Bishop Lori put it in another misapplied food analogy at last week’s hearing – it’s comparable to beer:


LORI: I do not think that it passes the moral test just to say that if the insurer does it, even if you’re not self-insured. As one commentator said, he said it’s like when you’re in college and you pay the older kid to get your beer for you. It doesn’t really pass the moral test.

This analogy is the product of a host of not-particularly-religious claims about contraception that Catholic conservatives have long cited to justify their theological opposition to these products. Guided by the observation that “pregnancy and fertility are not diseases,” they disagree about characterizations of certain drugs as contraception instead of abortifacents, warn of dangerous side effects of various contraceptives, and promote the inconclusive link between contraception and breast cancer among other objections.

These claims, however, are highly disputed in the medical community and were rejected when the Bishops made their case during HHS’s public comment period preceding this decision. Given the contested nature of these arguments, it’s unsurprising the Bishops don’t want to emphasize them any more.

However, Bishop Lori’s comments reveal that these questions are central to the debate. The Bishops had the opportunity in the comment period to make their arguments just like everyone else. Just because they disagree with the decision doesn’t mean their religious liberty is being violated.

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Catholic Theologian Cathleen Kaveny on The Daily Show

March 2, 2012, 2:06 pm | Posted by

Notre Dame Law School Professor M. Cathleen Kaveny went on The Daily Show with Jon Stewart last night to talk about the recent HHS contraception mandate and the role of Catholics in public life.

Watch her:

Part I

Part II

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Why the Blunt amendment is so bad

March 1, 2012, 10:39 am | Posted by

Roy BluntThe Senate is slated to vote today on the controversial Blunt amendment, which several Republican senators either oppose or are undecided on and which Mitt Romney weighed in on yesterday.  The Blunt amendment, which Dan deftly took down earlier this month, would allow employers to deny employees any medical treatment or service they object to for any moral reason.

The concept of putting an employer between an individual and his or her doctor is about much more than contraception– this is about giving employers veto power over the health and well-being of their employees.

Prominent faith groups, including the New Evangelical Partnership for the Common Good, the United Methodist Church and the Union for Reform Judaism among others, have all spoken out to oppose the measure, saying ” the Blunt amendment would eviscerate critical protections in the Affordable Care Act and completely undermine a fundamental principle of the health care law—that everyone in this country deserves a basic standard of health insurance coverage.”

Unfortunately, other religious organizations are weighing in with ad campaigns and public statements endorsing the proposed amendment under the guise of religious liberty.  Catholic Advocate PAC, a conservative Catholic outfit that has financially supported Sen. Marco Rubio (R-FL) (who has sponsored his own similar amendment), has a new video ad out.

The ad focuses solely on the recent accommodation to the HHS ruling on contraception coverage, without mentioning the litany of other medical procedures the Blunt amendment could effect.  It also conveniently neglects to clarify that the HHS exemption is for religiously based employers (churches, dioceses, and with the accommodation, religious hospitals, social service providers, and universities) and the Blunt amendment would allow any employer (from an insurance agent to a Taco Bell franchise owner to an investment banker) to deny medical coverage to their employees for almost any reason.

The Blunt amendment is an extreme attempt to dismantle critical protections under the Affordable Care Act. Well-meaning religious groups convinced to support it as a remedy to their misguided concerns about the religious accommodation are missing the forest for the trees.

It’s heartening to see faith groups and a host of other organizations taking a stand and reminding lawmakers that religious liberty and health care shouldn’t be pitted against one another.

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Catholic Bishop: Religious Exemption for Me But Not for Thee

March 1, 2012, 9:00 am | Posted by

Bishop William LoriIn his two appearances before Congressional committees to testify about the recent contraception regulations proposed by HHS, Catholic Bishop William Lori has made clear that he sees the new rule as a violation of the First Amendment right to religious liberty, arguing that it’s unconstitutional to force any religious individual or organization to pay for services that violate tenets of their faith.

This is the reasoning that led the U.S. Conference of Catholic Bishops to endorse the Respect for Rights of Conscience Act (also known as the Blunt amendment in the Senate and the Fortenberry bill in the House), which would amend the Affordable Care Act to allow any employers to drop any service from their insurance coverage because of moral or religious objections.

As many have noted, this broad expansion of religious liberty would create a dangerous slippery slope in which individual corporate executives could haphazardly drop coverage of all sorts of services like cancer screenings, maternity care, diabetes testing, or practically anything.

This legislation would put into effect the scenario Justice Scalia himself warned about in a 1990 opinion dealing with a religious objection to drug laws: “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

The easiest to spot problems don’t even require that much slipping down the slope. Established religious groups like Jehovah’s Witnesses and Christian Scientists are well-known for their opposition to common medical services such as blood transfusions and pharmaceuticals respectively.

Even Sen. Blunt has made clear that this is within the scope of the legislation:

The Respect the Rights of Conscience Act doesn’t mention any medical procedure. It doesn’t mention anything specifically. It treats Christian Scientists like Catholics, and Muslims just like Methodists,” Blunt says. “The principle is you cannot tell people they have to do things that violate their faith beliefs. It’s as simple as that.

Under the RRCA, any employee of a company run by an adherent of these faiths could presumably see his or her access to these services dropped. Do the Catholic bishops really support these results?

Luckily, at yesterday’s hearing Rep. Bobby Scott (D-VA) asked Bishop Lori this exact question, giving him the chance to explain whether he thought the rights of religious objectors were limitless or if they ultimately came up against a line.

REP. SCOTT: But the Catholic Church policy on contraception isn’t the only religious exemption, religious situation we have. Christian Scientists, for example, Jehovah’s Witnesses have different health care religious beliefs. Should they be required to conform to the general law that applies to everybody else?

BISHOP LORI: I believe that as a general principle rights of conscience should be broadly accommodated unless there is a compelling government interest. And if that compelling government interest is established then I believe it should be carried forward in the least intrusive way possible.

This, of course, is the exact opposite of the principle of the RRCA Lori claims supports, which suggests the government can never have a compelling interest to overrule religious objections. Not only does Bishop Lori acknowledge this trade-off, he appears to suggest that the objections of Christian Scientists and Jehovah’s Witnesses shouldn’t qualify for exemptions. In short he seems to be arguing that Catholic objections should get an automatic free pass, but those of other religions should have to pass a rational test first.

Further, it undermines the argument that this debate is exclusively about religious freedom rather than contraception itself. Accepting Bishop Lori’s test means we’re no longer debating first principles and religious beliefs, but policy specifics relying on evidentiary claims and predictions about social and health outcomes.

The Bishops certainly have strong feelings on these issues, and they have every right to express them in the public square, but they have to accept that their arguments will be weighed against all others. This was the entire point of the the extensive review and public comment period about which preventive services should be covered without cost sharing by policyholders.

In the end, the government decided that yes, this is one of those times where the interests of the public outweigh some absolutist religious objections. However, the Obama administration also struck an accommodation that ensures, among other things, that Catholic institutions will not have to pay for services they find morally objectionable.

The Bishops may not like or agree with the decision our democratic process produced, but they don’t get to flash the First Amendment card as some kind of instant-nullification process.

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