Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, August 1, 2011

The new "conscience" regulations

A few days ago, I posted a link to a column by Steve Schneck on the importance of conscience-protection regarding "medical procedures that must be covered by new insurance policies offered under the health care reform law."

According to the HHS website, "historic new guidelines" have been proposed "that will ensure women receive preventive health services at no additional cost."  Later in the press release, there's this:

The administration also released an amendment to the prevention regulation that allows religious institutions that offer insurance to their employees the choice of whether or not to cover contraception services. This regulation is modeled on the most common accommodation for churches available in the majority of the 28 states that already require insurance companies to cover contraception.  HHS welcomes comment on this policy.

Unfortunately, this model "most common accommodation" -- which you can find here -- is very, very narrow.  Consider this, for example: 

In the Departments’ view, it is appropriate that HRSA, in issuing these Guidelines, takes into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate. Specifically, the Departments seek to provide for a religious accommodation that respects the unique relationship between a house of worship and its employees in ministerial positions. 

As I see it, an exemption that proceeds on the basis of the assumption that all that is at stake is the "unique relationship" between a "house of worship" and "employees in ministerial positions" is going to exclude from its scope a lot that matters.  Now, consider the (very, very narrow) definition of a "religious employer":

Consistent with most States that have such exemptions, as described below, the amended regulations specify that, for purposes of this policy, a religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. 

As I see it, there are many "religious employers" whose "conscience"-type rights should be protected that do not have as their purpose the "inculcation of religious values"; that do not limit employment to co-religionists, and that do not serve only, or even primarily, persons who share their "religious tenets."  Basically, the new rules seem to federalize (for purposes of the "new" plans to which they apply) the California contraception-mandate that was litigated several years ago in the California Supreme Court.  As I wrote, in this short opinion piece at the time:

In a sense, the [California law's] “religious employer” exemption’s criteria reflect, and reinforce, a controversial, sectarian, privatized notion of what religion is, and what religious communities do: Religion is about belief and values, not service, sacrifice, and engagement. By requiring, as a condition of participation in public life, that Catholic Charities acquiesce to this notion, California is not only taking sides in an irreducibly religious debate about human sexuality. It also, in Justice Brown’s words, “impoverish[es] our political discourse and imperil[s] the foundations of liberal democracy.”

My understanding is that there is still time to comment on the proposed religious-employer exemption, and there remains the possibility of revision.  I hope such revisions are forthcoming.  In the meantime, I would urge Mr. Schneck and other Catholics who supported the nomination of Sec. Sebelius to push back, and focus her attention on the exemption's weaknesses.

UPDATE:  Michael Sean Winters, at NCR, makes the case here that the new exemption is "totally inadequate."  He concludes:

Sixty days [the time for comment] is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let's hope the administration will listen.


Garnett, Rick | Permalink

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Rick--there is not really "still time to comment". At the end of the regulation it says it is imposing this rule now as a final rule, and is choosing to not follow the APA requirement that rules not be made final until after a public comment period. The rule of law is not going to stand in the way of an all-powerful government bureaucracy intent on feeding abortifacients to college students (which is actually cited as the excuse). So maybe there will be a comment period, but it will be after the fact and even more pointless than objections usually are to this administration's abortion agenda.

Posted by: Matt Bowman | Aug 1, 2011 4:19:59 PM

In a similar vein, Will HHS pick and choose what forms of family planning it will include in this mandated coverage? The recommendations mandate coverage for education and counseling for artificial contraception and sterilization. Will they also cover education and counseling for NFP? http://tiny.cc/pdcoa

Posted by: Denise | Aug 1, 2011 7:57:09 PM

Ugh. Is the goal to end faith-based charity? Surely charity depends on giving to people and not caring about who they are or what they have done, and without regards to religious inculcation.

Posted by: Benjamin Baxter | Aug 1, 2011 9:58:44 PM

At some point the Church will be pushed into being unable to offer insurance. At that time it will probably be fines for not doing so. This is how religious liberty ends.

Posted by: Fr. J | Aug 2, 2011 7:31:32 PM

It would be bad enough if the feds tried to limit it to institutions that hired only in-group, but extending factor (3) to require in-group clients shows that this can be nothing other than an intentional effort to leave no exemption, with a fig leaf only for the naive or the willfully blind.

So you could have a school or hospital run solely by nuns, a la 1950, and they still don't qualify because they serve others?

It seems to me that such a "customers" restriction itself raised two legal problems of consistency. Allowing such an exemption presupposes that some group can try to take advantage of it by structuring its institution to meet the criterion. But locking out all but co-religionists has two problems. First, most groups self-define their mission to serve all comers, so it presses them to change mission, which raises constitutional questions. Second, most (perhaps all) institutions face express statutory requirements to accept all comers, so they can not bar the doors to meet the standard.

The only way to comply would be accidental - no non-Catholics (or non-whatever) apply, even though doors are open.

That is absurd enough as to be a fraudulent offer of an exemption.

Further, that is likely so as to employees, too, unless Hosanna Tabor comes out in a maximalist way that surprises even Laycock. Without a right to hire only in-group, it's a bait-and-switch. Non-discrimination laws say you have to hire others, and this new "conscience" regulation says you can't claim it unless you cap the diversity.

This is anti-clericalism on the order of the Mexican Revolution and the French, and those who are still blind to it need to open up their eyes pronto.

Posted by: despondent | Aug 2, 2011 7:42:35 PM

Would nuns need contraceptive coverage? (I know, I know --- that's not how insurance works. Everyone pays into the same pot, &c.)

Posted by: Benjamin Baxter | Aug 3, 2011 12:33:57 AM

Now we know for certain why the Health Care Plan was missing some of the details.

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