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.

Sunday, February 12, 2012

Request for Clarification on Revised HHS Mandate

I've a quick question for Rick, Robby, Carter, and others of my friends who have signed the forceful letter to which Rick and Robby have referred this morning.  I pose it because I do not yet know what to make of or opine in respect of Friday's 'walkback' announcement, and could use assistance in coming at least to a provisional verdict. 

For present purposes, I can envisage two distinct scenarios that the revised HHS mandate might, well, mandate.  (If there are alternatives that I ought to be considering, do please somebody let me know.)  

Per one such scenario, a religiously affiliated employer is required, like all other employers under the ACA, to purchase one health insurance policy covering all of its employees, which policy covers contraceptive pharmaceuticals and devices.  The employer is then 'accommodated' (which term I believe stems from the Surpeme Court's Amish-defending Wisconsin v. Yoder decision of 1973, right?) by not being required to inform its employees of the latter coverage, that role being assigned to the insurance company.

Per the other such scenario that I envisage, the religiously affiliated employer is accommodated a la Yoder by being required, unlike other employers, to purchase a policy for its employees that need not cover contraceptives, while the insurance company is then separately required to provide to the same group of employees a second policy that does cover contraceptives. 

The first scenario, which the present wording of the aforementioned letter appears to me to suggest is the actual scenario with which Friday's White House announcement presents us, would seem pretty clearly to warrant the damning language employed by the letter, if not indeed worse.  For it then would amount not even to anything so exhalted as an 'accounting gimmick,' but instead to a mere 'speak no evil ['evil' being defined by the institution]' allowance. 

One can imagine variants of the second scenario, by contrast, that might well not warrant such criticism as that offered by my friends' letter, at least not absent an account of what sorts of accounting arrangement constitute mere gimmickry devoid of moral substance and what sorts do not.

(I have, for example, since well before the Supreme Court effectively constitutionalized the argument, often defended flows of education and health grant funds from the public fisc to religiously affiliated schools, hospitals, and other social service organizations as consistent with non-establishment, on the ground that, accounting-wise, they amounted to equal pro rata shares provided for the benefit of the clients of these institutions, which equality rendered the clients' choices 'intervening' choices of precisely the sort that 'cleanse' government funds of 'endorsement' significance.)  

Might Rick, Robby, Carter, or somebody else here, then, clarify for me (a) whether the revised mandate mandates some such scenario as the first I described rather than the second, and (b) where I might find detailed verification of this if indeed it does?  If, instead, the revised mandate mandates some variant of the second scenario that I described, might somebody clarify for me (c) what the particulars of the variant are, (d) where I might find those, and (e) whether any variant on this second scenario would be permissible in their view? 

I pose the last query - (e) - partly because, if the answer is no, I might have to abandon an argument that I quite often employ in defense, against what I currently believe to be spurious 'establishment' charges, of public funds' being directed to religiously affiliated schools, hospitals, and other social service agencies.

I pose the full set of queries - (a) through (e) - because I wish both to come to an informed judgment of the HHS mandate, and to ensure that I hold a coherent general account of how we as a nation might maintain our eclectic amalgam of mixed public-private social insurance and safety net provision on the one hand, without running aground on the Scylla of establishment or the Charybidis of curtailed free exercise on the other hand. 

(Apropos this latter point, by the way, it is tempting once more to suggest that direct public provision of health insurance might solve the conundrum where health care is concerned much as does public provision of education, pension insurance, and unemployment insurance funding where those public goods are concerned.  (It is, after all, still yours truly who is writing this, still smarting over the Administration's never having seriously pressed for 'single payer' or, it seems, the 'public option' as it ought in justice to have done.)  

Many thanks.  


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