Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, February 12, 2012

The Bishops' Response to the Obama Revision

In partial response to Bob's question, According to the Bishops, "It [the Obama revision] would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."
The Bishops apparently are objecting that the contraception insurance is not a separate rider."See http://usccb.org/news/2012/12-026.cfm
Even assuming the Bishops are correct in their characterization, this objection seems excessively precious to me. It seems to exalt form over substance. I do not see how this distinction gives rise to a morally serious objection involving religious freedom.

On the other hand, I do not believe the Obama revision applies to private for profit employers with religious objections. Although I recognize that by subscribing to the Taco Bell example, I will be thought by most people to have walked into outer darkness, I think it appropriate to honor those objections, if, but only if, there is no economic incentive for employers to make the objection. An employer (including religious hospitals and universities) should not economically benefit from a religious exemption. As I have previously argued, see here, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption. (With the possible exception of a very closely held business corporation, I would not expect that business corporations would have consciences to invoke).

The Bishops are concerned about self-insuring employers with religious objections and religious insurance companies. With respect to the former, I wonder how many of these are individuals who have consciences and how many are business corporations that as artificial entities who do not. If they are individuals with a good faith objection, I would compel them to increase wages by the amount they would save from a First Amendment exemption and have the government provide social insurance. 

As to the latter, I would like to know about religious insurance companies. I have not heard of them. My tendency is to think that business corporations have no free exercise rights, but if there is an unincorporated insurance company run by a private person, I would balance the free exercise interest against the government interest, and the possibility of alternatives. But I think more facts are needed here to analyze the factors.

I conclude by noting again the irony that amidst the internet explosion surrounding Obama's insensitivity to free exercise interests that little attention has been paid to the fact that the award for constitutional insensitivity to religious freedom still belongs not to President Obama, but to the conservative's favorite justice: Antonin Scalia. 




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I think you're misreading the Bishops' statement. They're not "objecting that the contraception insurance is not a separate rider," at least in the document you link to. The passage you quote is introduced by an observation that the Administration's announcement was light on details, followed by the line, "As far as we can tell at this point, the change appears to have the following basic contours:". I think that rather obviously means that what comes after is just a summary, not a critique.

As for the critique, it is essentially that those who think the "accommodation" amounts to any real change are exalting form over substance (to use your phrase): "And in the case where the employee and insurer agree to add the objectionable coverage, that coverage is still provided as a part of the objecting employer's plan, financed in the same way as the rest of the coverage offered by the objecting employer." Post- or pre-accommodation, the contraception coverage arises through the insurance coverage that the religious employer has selected to offer its employees, and there's no reason to think that the costs of that coverage aren't being passed along to the employer, just as before.

Posted by: anonymous | Feb 12, 2012 10:39:02 PM

Anonymous, beyond the description the Bishops continue: And in the
case where the employee and insurer agree to add the objectionable
coverage, that coverage is still provided as a part of the
objecting employers plan, financed in the same
way as the rest of the coverage offered by the objecting
employer. This, too, raises serious moral concerns.
I read that as objecting to it being part of the employers plan as
opposed to a separate rider.
The claim that it is financed in the same way is difficult to
understand. The employers do not directly pay for it. So it is
clearly not financed in the same way. And the use of contraception
saves insurance companies money. It is not at all clear that they
will be able to strike a bargain in which they charge costs back to
religious employers, let alone do it in a way that it could be
traced. Even if they could, this would mean that a general
requirement that insurance companies provide contraceptive insurance
would violate religious freedom of employers. I think this stretches
the concept of religious freedom to the breaking point.

Posted by: Steve Shiffrin | Feb 12, 2012 10:58:08 PM

Steven, your statement "business corporations have no free exercise rights" is a frightening one. Do your First Amendment rights vanish simply by filing articles of incorporation?

What if the government mandates abortion coverage? Does the celebrated Taco Bell franchisee (which is likely a corporation owned by a single shareholder) have to provide abortion coverage?

Posted by: Catholic Law Student | Feb 12, 2012 11:24:47 PM

I thought the Wh. House statement (I read it on the WH website) said a rulemaking was being published the same day in the Federal Register. I did not see the rule in the FR when I looked quickly. Obviously, the president's briefing room description of the compromise, or his public affairs' shop's description of said compromise, or the Bishops' divination of the description of such compromise, amounts to nothing when the law will be spelled out in the rule. Where's the rule?

Posted by: Anon | Feb 12, 2012 11:28:19 PM

I interpret that passage as objecting to the coverage being part of the employer's plan as opposed to being something the employee has bought independently.

If contraceptive use saves insurance companies money, why is the mandate thought necessary? Wouldn't the insurance companies (except perhaps religious insurance companies) provide the coverage then on their own initiative? If we do go ahead and suppose it costs some amount X to provide the coverage to those covered under employer E's group plan, why think the insurer won't eventually raise E's premium by X? Who else is going to pay it?

I'm not sure whether your "to the breaking point" argument is directed at those who think there's a constitutional/statutory religious freedom claim in that situation, or to those who think that such a law would be offensive because of its insensitivity to the religious beliefs of employers, or to both. There might not be a valid religious freedom-based legal claim in such a case, but it wouldn't strike me as crazy to criticize that sort of general policy on religious freedom grounds.

Posted by: anonymous | Feb 12, 2012 11:28:57 PM

Catholic Law Student: I said that there should be an exception for
closely held corporations with specific reference to the Taco Bell
example. With respect to non-closely held business corporations, I
do not think it frightening to deny free exercise rights. Mobil Oil,
for example, has no religious conscience to invoke.
Having agreed that a closely held corporation ought to be eligible
for a free exercise claim, just as an aside, I wonder if any
business corporation has ever won a free exercise claim. Finally, I
wonder if the Taco Bells of the world have ever had free exercise
rights whether incorporated or not. The world you express fright
about may have been with us for a long time though neither of us may
like it. If pharmacists have no free exercise rights to refuse to
fill prescriptions to which they morally object even given other
readily available alternatives, Taco Bell is not likely to be given
more privileged treatment.

Posted by: Steve Shiffrin | Feb 12, 2012 11:40:21 PM

The coverage is not really part of the employers plan; it is
secured independently by the employee without the employee
purchasing it (this breaks the link with the employer just as
parental use of vouchers breaks the link with the government for
endorsement purposes). The Bishops say it is part of the employers
plan (it actually is the employees plan for this purpose), but if
it were a separate rider it would functionally be the same and I do
not see a moral difference. You appear to concede this, but deny
(wrongly in my view) that the Bishops said it.
You do not contest that contraceptive use saves insurance companies
money (I think the health community speaks loudly on this issue).
Your rhetorical questions are apparently designed to contest the
position of the health community, but they cannot do that work. The
economic reality gives employers a strong bargaining position. If it
turns out that employers were not paying anything after all for
this, then the whole episode was based on a fiction and the
religious freedom issues were inflated. As to why the insurance
needed to be compelled, it would not be the first time that market
actors acted irrationally and did not take into account the
importance of preventative measures.

Posted by: Steve Shiffrin | Feb 13, 2012 12:02:08 AM

Let's grant that there's no serious sense in which the employer would be *paying* for the coverage. Even so, there seems to be a problem. It's roughly like this. The employer would prefer not to make an insurance contract that leads to contraceptive coverage being offered to its employees. The employer would, for example, prefer to make a contract with the K of C, which refuses to provide contraceptive coverage. But this option is being made illegal. The employer is not going to be allowed to do this. Why isn't that a restriction on the employer's free exercise?

That's not a rhetorical question.

Posted by: Michael Gorman | Feb 13, 2012 9:27:58 AM

I think you make an excellent point. I would regard your fact
situation as presenting a slight burden on free exercise outweighed
by the government interest. It is more remote than forcing an
employer to pay for contraceptive insurance. Remoteness surely
counts in such a balance. For example, suppose the government said
it would supply contraceptives to anyone who was employed. An
employer might not want to cause employees to get contraceptives by
employing them, but this causative role would be even more remote.

Posted by: Steve Shiffrin | Feb 13, 2012 9:43:27 AM


Chick-fil-a(the chicken sandwich chain) does not open on Sundays. The company's founder was a Christian and wanted his corporation to follow Christian principles. Chick-fil-a is not a small company.

If the government passes laws that affects a corporation's ability to incorporate such principles into its business model, I fail to see how the free exercise clause is not implicated. I dont see how it matters whether we're talking about a CHC or a larger corpoaration.

If a board of directors at an insurance company says, "we have relgious objections to contraceptions, we have decided our corporation will not cover those service," are there no first amendment rights implicated when the government forces them to cover contraception? How about abortion?

The pharmacy situation is far from settled: http://www.sj-r.com/top-stories/x675820054/Judge-says-pharmacists-can-refuse-to-dispense-morning-after-pills

This is going to become an increasingly important issue as the regulatory state cotinues to advance into every sphere of human life.

Posted by: Catholic Law Student | Feb 13, 2012 10:12:11 AM


Thanks for your reaction.

I guess if I were a Catholic employer, it would seem like a very large burden, a burden that I had to bear for the sake of a governmental non-interest, inasmuch as I wouldn't accept the claim that it's good for the government to encourage people to partake of contraceptives, abortifacients, and sterilizations.

Posted by: Michael Gorman | Feb 13, 2012 10:50:05 AM