The HHS Mandate and the Compromise that Wasn’t

In response to the incredible groundswell of opposition to the recent HHS birth control mandate President Obama has offered a compromise meant to appease Catholics. A statement released by the White House announced the compromise and stated the following:

Under the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she works.  The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

Catholics cannot under any circumstance cooperate with an inherent evil which, according to Catholic moral teaching, includes methods of artificial birth control including, but not limited to, contraceptives, abortions and sterilizations. Unfortunately, President Obama’s compromise merely makes this cooperation one step removed. That is, while no Catholic under the mandate would be required to directly hand out contraceptives to his or her employees, Catholic employers will still be required to indirectly pay for birth control through their insurance plans.

The Obama administration attempted to justify the accommodation by stating that Catholics will not be paying for birth control because it will be free and the cost of birth control would be negated by the money saved by reducing pregnancies. The net result is that we would actually save money, the administration claimed. However, practicing Catholics have been categorically opposed to the mandate not because covering birth control represents a financial loss, but because it requires Catholic employers and insurance providers to offer contraception, abortion, and sterilization without any conscience-protection exemptions. Thus, the mandate, even in light of the new compromise, directly violates religious freedom by forcing Catholics to choose between following the law and following their faith.

This has nothing to do with the money. The economics can be debated and the Obama administration can do accounting backflips if they so desire but the problem remains that all those who oppose birth control – Catholic and otherwise – are required by law to cooperate with something that they believe to be evil. If Catholics are to be afforded conscience-protection then they must have access to insurance plans that does not cover birth control.

Unfortunately, this represents nothing more than a political ploy meant to offer a facade of compromise without really providing Catholics with any accommodations whatsoever. In order to live in accordance with their religion, Catholics will be compelled to civil disobedience in relation to the HHS mandate and accept any consequences under the law until such a time that the mandate is rescinded.

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17 thoughts on “The HHS Mandate and the Compromise that Wasn’t

  1. Pingback: America Divided: Dems Hate Taxes, Love Puppies; GOP Loves Puppies, Hates Taxes « Democrazy

  2. I think you are being a little dire here. Catholics aren’t going to forced into civil disobedience. There are many mechanisms like PEOing your employees (legally your entire company’s employees cease being your employees they are employees of another company who are tasked by your people which also work for the PEO) or just paying the fine and not buying insurance…

    As a second point. Catholics are not protected against cooperating against things they disagree with. They can be protected against being ordered to directly do things they find morally objectionable. Everyone cooperates to facilitiate birth control and paper production in the USA.

    • No we’re not being forced to civil disobedience we’re being forced to choose between being a good Catholic and being a good subject of the state. The first amendment rights of anyone morally opposed to contraceptives according to the tenets of their faith are clearly violated by the HHS mandate as it states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” I don’t expect you to possess a sophisticated understanding of Catholic theology but I can tell you that this mandate does indeed obstruct the free exercise of our religion. Furthermore, civil disobedience, defined as nonviolent resistance, has an integral role in the healthy processes of any democracy so regardless of whether you agree with those opposed to the mandate I see no reason to object to our resistance to it.

      • I actually have a fairly good grasp of Catholic theology and think the Bishops are wrong. But that wasn’t the point of my response.

        The point of my response was there is no need for civil disobedience. There are a dozen solutions that don’t require church affiliated institution to provide contraception for employees, like a PEO. Another possibility would be to establish a mutual insurance company for church affiliated institutions and fund that, which means the employees would be providing their own insurance and the employer wouldn’t be responsible for policy. Another is just not offer insurance and pay the fine.

      • You consider yourself to have a good grasp on Catholicism: congratulations, so does every other opponent to the Church.

        1: the option to outsource management changes nothing. Catholic employers still pay the insurance premiums and then the insurance companies provide birth control to their employees. Insurance companies have every right to provide birth control. However, Catholics have every right to opt out of such an insurance plan. Additionally, even if outsourcing was a viable solution it would require restructuring of the financial infrastructure of the vast majority of Catholic employers simply so that they can continue living in accordance with their faith without sacrificing their jobs.

        2: Do you really think that its acceptable for our government to fine people for acting in good conscience regarding their religious beliefs, when those religious beliefs in absolutely no way violate any other person’s rights? Last I checked our Bill of Rights demanded a free exercise of religion. Tell me, what’s so free about charging people money in order to let them practice their faith? What happens to those who can’t afford to pay the fine? Do they go to prison?

  3. the option to outsource management changes nothing. Catholic employers still pay the insurance premiums and then the insurance companies provide birth control to their employees.

    First of all it is not outsourcing management it is actually transferring the employees legal employer and outsourcing the HR. And so it changes all of that.

    1) The Catholic employer doesn’t pay the insurance premium, the PEO does.
    2) They aren’t “their employees” anymore they are the PEO’s employees.

    That’s the point. There are solutions like this for employers that don’t want to (for whatever reason) follow employment law.

    However, Catholics have every right to opt out of such an insurance plan.

    No actually Catholics don’t have that right. They have the right not to use contraception they don’t have the right not to be insured. That’s the meaning of the individual mandate.

    : Do you really think that its acceptable for our government to fine people for acting in good conscience regarding their religious beliefs, when those religious beliefs in absolutely no way violate any other person’s rights?

    No but that isn’t the case here. The government would be fining them for failing to pay insurance which incurs a penalty under US employment law. Lots of actions incur penalties and religious employers have to pay them. For example if a religious employer wants a variance from an OSHA guideline they may to pay the variance penalty. That’s part of having employees in the USA. If church institutions don’t want to pay penalties in exchange for variances they shouldn’t have employees.

    As for not violating any other person’s right, the rights being violated are the employees to receive adequate health coverage.

    Now in terms of my opinion. I think the government has a positive obligation if it can to make reasonable accommodation for religions, especially large religions to create exemptions. Which is precisely what the president did, by shifting the charges from the Catholic institution to the insurance company. That way Catholic institutions purchase policies without contraceptive coverage, but the insurance company is obligated to offer out of plan coverage. That avoids the Catholic institution from having explicitly indirectly purchase contraceptives and rather moves them to implicitly indirectly, which they are already doing now.

    Last I checked our Bill of Rights demanded a free exercise of religion. Tell me, what’s so free about charging people money in order to let them practice their faith?

    They aren’t being charged money for practicing their faith. They are being charged a variance for failure to comply with insurance provisions of employment law.

    What happens to those who can’t afford to pay the fine? Do they go to prison?

    Most likely they would have a judgement put against the business and the monies would be collected directly from receipts. Like most penalties for which an employer refused to pay.

    _____

    You are treating this like it is some unheard of situation. Catholic employers today have to follow (indirectly) tens of thousands of pages of insurance regulations in the various 50 states and many tens of thousands of page more in terms of regulations depending on other areas of practice. Just because a Catholic institution owns something doesn’t making it exempt from following all sorts of laws. Those institutions err and they pay fines. There probably isn’t a Catholic hospital in existence that doesn’t do a $1m a year in charge backs and fines.

    • So who pays the PEO to do all of this? How do they cover the cost of insurance, HR etc.? Is this just a free service they will provide to Catholic employers? The money doesn’t just come out of thin air. I’m not arguing that Catholics should be exempt from insurance regulations but thanks for trying to make my argument for me. All I’m saying is that insurance options must be available to Catholic employers that don’t include contraception – which is impossible under the mandate.

  4. So who pays the PEO to do all of this? How do they cover the cost of insurance, HR etc.? Is this just a free service they will provide to Catholic employers? The money doesn’t just come out of thin air

    Well obviously the contracting company, the Catholic institution. Actually the delta, the difference in cost does come out of thin air more or less.

    For something like a hospital they would find that their cost would be around $25-40 / mo / head for the PEO services.

    Offsetting this is:
    a) Cheaper health insurance (or at the very least dropping some agency fees)
    b) The elimination of their entire HR department (or at least a huge chunk of it)
    c) Less expensive certification and training costs.
    d) Cheaper disability insurance
    e) Lower recruiting costs (often as little as $1k / head)

    ….

    I’ve put PEOs in place for as a cost saving measure. The PEO is likely way cheaper. At most the difference in fully loaded cost will be small on the order of a percent of wages. And it gets them out of this sort of complexity.

    • So you cede that the Catholic institution pays. Which means that they still fund the insurance that is required to provide contraception. Therefore, it remains guaranteed that the Catholic institution funds an insurance plan that provides contraception. Its an additional degree of separation but that doesn’t change the morality. The mandate still violates Catholic conscience.

  5. So you cede that the Catholic institution pays. Which means that they still fund the insurance that is required to provide contraception.

    No I don’t cede that. The Catholic church has always held that you don’t trace causes back to the origin of time but to the last moral agent.

    For example a year ago if the Catholic institution paid a salary to a sexually active woman buying contraception they didn’t consider that a sin on the institution’s part because of intervention fo the other agent.

    Catholic institutions today pay for garbage services, cafeteria services, facilities management, delivery, etc… whose employees get contraceptive coverage. If it is unacceptable to pay for contraception regardless of how many agents are in-between why hadn’t the issue arisen in the last 200 years?

    You’ve heard the expression six degrees of separation. There is probably less than 3 degrees of separation between a Catholic institution and every moral evil in the United States. Either the church has to accept that it can’t control other agents or if any act that facilities evil even if performed by another agent is immoral it simply can’t act at all.

    • My point is that its not a matter of separation its a matter of choice. If I provide someone with a salary it provides for their livelihood – but whether or not they use that money to buy contraception is their choice; as a matter of free will the choice is theirs and not mine and therefore they are the moral agent culpable – I am in no way encouraging or their choice. Under the HHS mandate there is no choice; Catholic employers are forced to pay for government-mandated contraception and there is no deciding agent in-between where any other moral choice is involved. Even if funding is indirect it is still the Catholic employer who decides and therefore becomes the moral agent.

  6. Under a PEO the Catholic agency is not an employer and is not forced to do anything regarding insurance. I think I’ve said this enough times now. They don’t decide anything they aren’t even consulted on the health insurance plan.

    Further even if they don’t outsource their employees no one if forcing Catholic employers to provide contraception. What is saying is that they may not offer a health insurance plan that does not offer contraception. No employer is required to insure their employees.

    Further under the new mandate they aren’t paying for contraception. Contraception is simply included free of charge. That was what moved Sister Keehan to consider the new mandate not a violation. The Catholic agency is no longer choosing to provide contraception nor are they paying for it.

    • 1. adding a degree of separation doesn’t change the morality. Just because the Catholic institution isn’t the legal employer because of a loophole doesn’t negate their culpability.

      2. Catholics are therefore forced to omit insurance coverage exposing them to fines and market disadvantage merely for practicing their faith which is unconstitutional.

      3. There’s no such thing as a free lunch. The cost of contraception will be factored into the premium and Catholic employers will be complicit with contraception provision.

  7. 1) Why wouldn’t that situation have applied before this with Catholics paying fees to companies that employee workers and provide contraception to their employees? For example Disney has been very active on contraceptive health plans for decades. Catholic groups have purchased services from Disney during that time.

    You keep asserting that changing the employer doesn’t change the culpability. Then why for the last generation has it moral for Catholics to purchase from Disney.

    2) The constitution does not require that religious groups not experience market disadvantage in exchange for compliance. For example Orthodox Jews who keep the sabbath lose a lot of business Friday night to Saturday and the constitution does not prohibit their customers from going elsewhere.

    What the constitution prohibits would be a law requiring Jews to work on their sabbath unless their was a compelling state interest. So for example Jews who are drafted are required to work the sabbath.

    3) The question is not complicit, the question is whether they are the active agent. Whether they had to take any action. Here the Catholic agency asserts “I want a policy without contraception included”, they get one and it doesn’t include any coverage for contraception. On the side the employee gets another free policy from the insurance company which includes contraceptive services. The agent there is the insurance company and the employee the Catholic agency provides a health insurance without contraception.

    How can they be complicit in something they didn’t do and weren’t involved in?

    • 1. As I’ve already stated it has to do with choice. Disney’s customers are the moral agent. The employers and employees are the ones making the choices.

      2. So you would agree that if the government ordered Jews to serve pork it would be perfectly constitutional if the Jews could get out of it by serving some punishment under the law for exercising their faith and NOT serving pork? (like paying a fine for example)

      3. A Catholic agency asserting “I want a policy without contraception included” does not negate their culpability because it is merely a cop-out with no effort made to change the outcome and no effect on insurance policy. The insurance company is compelled by law to offer free contraception regardless of what the Catholic agency says, regardless of what any PEO says etc. Therefore, the last moral agent involved remains the Catholic agency. As I’ve stated, the PEO is an accounting loophole with no actual effect on the moral dynamics at play.

      • Your answer makes no sense. In (1) a Catholic agency purchases services including labor from a company that provides contraception and that’s not an issue because the customers (which would include the agency) are the moral agent.

        But in (3) the same Catholic agency purchases services including labor from a company and suddenly it is just an accounting loophole and the Catholic agency is fully responsible.

        OK what if the PEO were owned by Disney? Heck I’m pretty sure given all the companies Disney directly and indirectly holds there probably is a PEO in there. I don’t see how (1) and (3) don’t completely contradict each other.

        ______

        As for (2). It isn’t a sin for Jews to serve pork it is a sin for them to eat pork. And the government can and has refused to grant Jews special circumstances for religious observation. For example using your pork analogy not all prisons and jails are kosher and thus Jews are being compelled to break their religious dietary requirements. As I mentioned many Jewish firms won’t conduct business on Saturday and thus are excluded from government contracts or compelled to pay 3rd parties to provide services on Saturday to meet 24×7 guidelines.

        So in short no I don’t object to that. The alternative is I get to claim that my religion prohibits obeying speed limits and filing income tax.

      • I think both of our positions on this have been made clear and we’ve now deteriorated to running circles around each other. I’m done discussing this (same for our other, concurrent discussion).

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