Friday, February 1, 2013
The latest from HHS et al. is available here. I have the luxury of being able to read the thing carefully before deciding what I think about it. A few things, though, seem clear, from a quick first read:
First, the proposal does not change the fact that for-profit businesses are required to provide the preventive-services coverage, even if their owners have religious objections to doing so. This is not the "Taco Bell" problem, but the (I think) real problem that a number of small-ish businesses will be required to act in ways that run counter to their owners' desire to participate in the commercial sphere in a way that is consistent with their religious commitments. The RFRA lawsuits will continue.
Second, the four-part definition of exempt religious employers has been changed (or, it is proposed that they be changed), and the most objectionable parts of the current definition (the ones that invited inquiry into whether the organizations served primarily co-religionists, for example) are being removed. However, it is still the case that the exemption is limited (p. 20) to "churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order." So, it appears that, even under this proposal, a number of religious social-welfare organizations will not be "exempt" (though some will probably be covered by the "your insurance company will pay instead" "accommodation").
Third, while the document includes some discussion about self-insured employers, this proposal does not resolve the issue for such employers. On p. 67 of the linked-to document, it is clear that the section having to do with self-insured group health plan coverage is T/B/D.
I'm sorry to see that, in some com-box corners of Catholic blog-world, the knee-jerk reaction to this proposal is to snark about those mean and right-wing Catholic bishops and activists for whom nothing will be good enough, etc. This reaction is not appropriate, in part because it was almost certainly pressure from the bishops and from religious-freedom activists (and also concerns about losing lawsuits) that convinced the Administration to propose new rules (which, again, might not, in the end, cure the mandate's religious-freedom defects) and also because there's no reason why the bishops and activists should welcome even a new proposal if it turns out that the new proposal doesn't cure those defects.
UPDATE: Here is Yuval Levin: