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Friday, February 1, 2013

New (proposed) rules re: HHS contraception mandate

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:

This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. It’s not “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” but the right to answer to what you are persuaded is the evident and inflexible reality of existence, of meaning, of the universe, and of the mystery of human life. It’s not the right to do what you want; it is the right to do what you must.
 
Governments have to recognize that by restricting people’s freedom to live by the strictures of their faith they are forcing them to choose between the truth and the law. It is therefore incumbent upon the government of a free society to seek for ways to allow people to live within the strictures of their consciences, because it is not possible for people to live otherwise.
 
There are times, of course, when the government, in pursuit of an essential public interest, simply cannot make way for conscience, and in those times religious believers must be willing to pay a heavy price for standing witness to what they understand to be the truth. But such moments are rare, and our system of government is designed to make them especially so. Both the government and religious believers should strive to make them as rare as possible by not forcing needless confrontations over conscience. 

http://mirrorofjustice.blogs.com/mirrorofjustice/2013/02/new-proposed-rules-re-hhs-contraception-mandate.html

Garnett, Rick | Permalink

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Aw, Rick, you beat me to posting as always. I agree with what you say, but with one addition: It wasn't just conservative Catholics, and bishops and lawsuits, that pressured the administration to change to the extent it has. Pressure from liberal and moderates helped embarass the administration back in January 2012 into adding the "accommodation" that, in somewhat clearer form, we have now. The reporting tells us that Sr. Keehan, Matthews, Dionne, etc. had a real effect. I would not chalk everything up to them either (or claim that the current accommodations are in all respects sufficient). But we should acknowledge their role, in part because it needs to be encouraged: we won't preserve organizational religious liberty if it's seen as, or is, a concern just for conservatives. (I recognize that it's mostly conservatives who carry the ball on the issue now; but all the more important to recognize liberals and moderates when they do contribute.)

Posted by: Tom Berg | Feb 1, 2013 3:12:47 PM

Tom, I certainly agree (it was a beautiful moment!) that a number of Catholic liberals spoke out against the initial mandate (though some were too quick, in my view, to embrace the "accommodation"). I want to resist the idea that the bishops are "conservative", but putting that aside, my main frustration was with this mean-spirited instinct to say (something like) "ha! this proves that the bishops were unfair to Obama and if they don't embrace this proposal it just goes to show that they are biased against him and out of touch," etc.

Posted by: Rick Garnett | Feb 1, 2013 3:33:16 PM

Thanks for posting this. I'm sure your social media stream is different from mine, but I'm not seeing the same "knee jerk reaction" condemning the bishops, et al for whom nothing will be good enough. (I'm sure someone somewhere is saying it, but I haven't seen it from any mainstream progressive Catholics who have supported the ACA throughout.)

If anything, I've seen one "knee jerk" press release after another from partisan conservative outlets blasting yet another example of semantic acrobatics and deliberate deceitfulness from the Obama Administration. It's disappointing that so few seem capable of simultaneously opposing the ACA on principle... and even opposing the Mandate... but also acknowledging that the Administration genuinely does seem to have changed its position with this latest decision.

I respect your analysis, but you're the only one I've seen so far who's said he doesn't think that, for instance, Catholic hospitals and schools will be included in this shift. Are you able to expound?

Thanks very much for your efforts with the blog.

Posted by: Michael | Feb 1, 2013 3:51:56 PM

Thanks for the update. I'm concerned as to the toll on the perception of reasonableness in regards to religious freedom that this process has taken. Put another way, by starting so far to one side on the mandate's accommodations / exceptions, not only does each successive accommodation suck the energy out of those seeking to protect religious freedom, but it also has the danger of shifting the discussion on what should be reasonable in the first place; the starting point becomes dislodged from "how does this compare to our views on religious freedom," and instead becomes "how does this compare to the previous version of the accommodations / exemptions?" Unfortunately, this will likely result in an even steeper climb for those who might argue that other entities, e.g. some for-profit companies, should be worthy of consideration, recasting those with such views as "radicals" in the process. In doing so, and in framing the national debate in this manner, the view of faith as a compartmentalized aspect of one's life continues down its already well-laid road towards being the societal norm.

Posted by: Jack | Feb 1, 2013 4:53:39 PM

"the starting point becomes dislodged from "how does this compare to our views on religious freedom," and instead becomes "how does this compare to the previous version of the accommodations / exemptions?" Unfortunately, this will likely result in an even steeper climb for those who might argue that other entities, e.g. some for-profit companies, should be worthy of consideration, recasting those with such views as "radicals" in the process"

That, I think, is the strategy of this administration. They know what they are doing and are playing for keeps.

Posted by: Don Altobello | Feb 1, 2013 5:01:27 PM

I am not going to quibble about whether the liberals or conservatives are responsible for the fact that now, still, only churches (religious orders etc) get an exemption, not their ministries. It is worth noting, however, that Sr. Keehan's own HHS comments proposed that the exemption be expanded to at least cover religious colleges and universities (the 414 exemption). Today's rule is a resounding rejection of all such expansion proposals. Only churches are exempt, as before. Those churches might have less uncertainty about their exempt status now, and less government entanglement in their religiosity, but the category of exempt groups did not expand. This has been at the heart of the "liberal" objection to the mandate, one that Michael Sean Winters repeats today: "drawing a distinction between houses of worship and a church's ministries in ways that are particularly antithetical to Catholic sensibilities. We Catholics have always held that works, as well as faith, were a necessary part of the religious life, and so our ministries are as essential to our sense of our faith as are our sanctuaries." Winters happens to be under the mistaken impression that "our ministries and our universities" are now exempt, which is plainly false. What happened is that they are still not exempt, but for one reason rather than three reasons. I suppose that might be called progress. What is disappointing is if liberal Catholics surrender their objections because of a rule saying "your ministries are STILL not exempt, just not for as many reasons as before." Kind of like telling a man on death row that he will still be executed, but now merely for one crime he did not commit, rather than four. Thank you sir, may I have another.

Posted by: Matt Bowman | Feb 1, 2013 5:44:16 PM

I'm not sure I even want to know what corners of the blogosphere you read, Professor. My blood pressure is excellent; I'd like to keep it that way.

Posted by: Titus | Feb 1, 2013 6:18:40 PM

Michael, I am not aware of anyone who thinks that Catholic hospitals will be covered by the religious employer exemption. Can you direct me to any?

Posted by: Rgarnett@nd.edu | Feb 1, 2013 6:44:41 PM

Knee-jerk reactions?

Really? Like the Administration, who yet again is trying to address a tricky situation, the year extra time given to many groups not even here yet gets this response: "betrays a complete lack of understanding of both religious liberty and religious conscience."

The debate is heated because there is a deep divide on here on what exactly "religious liberty and religious conscience" truly means. Some of us, e.g., think this entails a janitor at a for-profit being able to use insurance provided as a benefit of her own labor to use her own conscience and health needs to use birth control in various situations. She is not a minister to the faith in question. It is a public accommodation. It is a neutral regulation with compelling interests of health and equality. And, since she is the wrong faith, she shouldn't be burdened by needing to pay more or forced to choose another job. Some of us thinks this is religious liberty.

Others have a different view though with respect loads of Catholics (including the vast majority who violate the Church's rules as to birth control) don't agree (many far from "liberal" on many subjects) but it is a tricky situation. The Administration has continuously tried to find a solution. An extra year was provided for many groups here to help them out. But, he "betrays a complete lack of understanding."

Knee-jerk indeed.

Posted by: Joe | Feb 1, 2013 6:54:26 PM

Joe, I'm afraid I'm not sure what you are saying. I commented on what seemed to me to be the "knee-jerk" reaction, of some commenters on some blogs, to move from the news of this new rule-making to some snark about the bishops and their efforts to raise awareness about the dangers posed by the mandate to religious freedom. I'm pretty sure I've never doubted or denied that there is a "deep divide" on what exactly "religious liberty and religious conscience" provides, or that the enterprise of respecting religious conscience is, sometimes, tricky. In this particular case, I think it's obvious that -- at first, anyway -- the Administration gave religious freedom concerns very short shrift. Those who are praising these new rules as a dramatic about-face by the Administration are, I think, misreading the proposal. But, certainly, I welcome the efforts of officials anywhere to better accommodate religious liberty.

Posted by: Rick Garnett | Feb 1, 2013 10:17:11 PM

Don't we find Catholic healthcare specifically included at page 22? There is a first reference to social service and charitable entities on page 16.

Posted by: Joe | Feb 1, 2013 11:46:00 PM

"It is a neutral regulation with compelling interests of health and equality"

Neutral? Compelling? Equality? You lost that argument when others (amish, medishare, small biz employers) were made exempt. As court cases in IL and WA re: pharmacist mandates, the presence of exemptions for economic reasons also demands accommodations for all reasons for exemption including religious.

Also, as religion is a matter of strict scrutiny, the government must explain why this policy is the least burdensome approach available (such as why an employer mandate, not public grants for free distribution).

Posted by: Charles | Feb 1, 2013 11:50:01 PM

I have some related comments here: http://clrforum.org/2013/02/02/proposed-tweaks-to-the-existing-hhs-contraceptionabortifacient-mandate-regulation/. Like the views offered by Rick and Tom, my views are still preliminary and subject to modification as I read and think more about the proposal.

In response to Joe, page 22 is that part of the document which deals with non-profit organizations not otherwise exempted which will receive the accommodation previously announced by the government -- i.e., that their insurers will pay at "no cost" to the organization. Those entities are not included in the first category of exempted organizations.

Posted by: Marc DeGirolami | Feb 2, 2013 9:46:07 AM

One more comment in response to Charles. It seems to me (again, provisionally) that to the extent this was not already the case, with this proposal, the government is likely to make its RFRA stand in court on the substantial burden prong. It is likely to argue that the steps that it has taken (or will take) as to non-profit entities really do make any remaining burden insubstantial. Only a guess, of course, and those plugged in to the ongoing litigation will have more informed views.

Posted by: Marc DeGirolami | Feb 2, 2013 10:08:19 AM

Rick, looking at the .pdf on pages 10-11, and again on pages 16-17, hasn't the definition of religious employer been expanded beyond the reference from page 20 that you cite ("churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order" )?

Here is the language from pages 10-11,

"These proposed rules mark the next step in the process. The proposed rules would make two principal changes to the preventive services coverage rules to provide women contraceptive coverage without cost sharing, while taking into account religious objections to contraceptive services of eligible organizations, including eligible organizations that are religious institutions of higher education, that establish or maintain or arrange health coverage. First, the proposed rules would amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths. Second, the proposed rules would establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with religious objections to contraceptive coverage. The proposed rules also propose related amendments to other rules, consistent with the proposed accommodations. The Departments intend to finalize all such proposed amendments before the end of the temporary enforcement safe harbor."

Below is the language from pages 16-17

"The Departments propose two key changes to the preventive services coverage rules codified in 26 CFR 54.9815-2713T, 29 CFR 2590.715-2713, and 45 CFR 147.130 to meet these goals. First, the proposed rules would amend the criteria for the religious employer exemption to ensure that an otherwise exempt employer plan is not disqualified because the employer’s purposes extend beyond the inculcation of religious values or because the employer serves or hires people of different religious faiths. Second, the proposed rules would establish accommodations for health coverage established or maintained by eligible organizations, or arranged by eligible organizations that are religious institutions of higher education, with
religious objections to contraceptive coverage."

Thoughts?

Posted by: Frank Weathers | Feb 2, 2013 8:34:59 PM

I am not a lawyer, and I am unclear about whether this exemption extends (now) to Catholic universities and hospitals. It seems to me there are two ways of reading the paragraphs cited above. One way is to understand the exemption as "expanded" because organizations which go beyond inculcation of faith and/or employ and serve non-co-religionists are now "eligible." But the other way to read it is that this "expansion" applies ONLY to "eligible" organizations - that is, organizations that qualify under the tax code definitions. In other words, so long as an organization qualifies as "churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order", they can understand themselves as exempt, regardless of any other criteria.

Read in way #1, the expansion would apply to, for example, religious colleges, and further support for this reading is given by the rule's statement "including eligible organizations that are religious institutions of higher education". Read in way #2, such an insitution would still have to be "eligible" - that is, qualify under the tax code. So, say, a church runs a parish soup kitchen or a parish school that serves many non-Catholics - they are eligible. Say a church directly runs a school for its ministers - a bible college or seminary? - perhaps it is eligible. (I don't know the exact way such institutions file taxes) Or (in a trickier case) say a religious order directly runs a college, as is the case at, for example, St. John's University in Minnesota, where all paychecks are from "the Order of St. Benedict, Inc." (By contrast, other Catholic schools run by orders are separately incorporated, and I believe St. John's is moving in this direction.)

In short, there needs to be clarification about whether the typical Catholic university is eligible for the exemption or not. I don't think that's the ONLY question here, but it does seem to be the big one.

Posted by: David C | Feb 3, 2013 10:18:31 AM

It is not unjust discrimination to discriminate between acts that are Life affirming and Life sustaining, and acts that are not. Most of the Obama administration's controversial HHS mandate was already established law in some states based on the erroneous interpretation of the EEOC ruling in regards to Title 7 of The Civil Rights Act of 1964.
Hosanna-Tabor, by ruling that Religious Groups (which consist of individual persons) have a right to shape their own Faith and Mission, precludes the Obama Administration not only from determining which persons or group of persons in a Religious Group are eligible for an exemption due to Religious reasons, but also from coercing every Insurance Company to be a peddler of contraception. Employers, who for Religious or moral reason, desire to purchase Insurance that is Life-affirming and Life-sustaining, and do not want to condone the contraception mentality which promotes promiscuity and the sexual objectification of the human person, have the right to purchase insurance from an Insurance Company that does not condone, and thus will not provide contraception coverage.

Posted by: N.D. | Feb 3, 2013 11:36:52 AM