One of the more sordid features of the Obama presidency is his willingness – nay, his seeming glee – in beating up on poor, helpless, defenseless females. In this particular, I am referring to the Little Sisters of the Poor.*
It is well known that Obamacare has been implemented by HHS with a contraceptive mandate. What is not quite as well known is the way this falls on certain employers, like the Little Sisters. The mandate as originally specified by HHS would require all employers to make sure that (mandated) contraceptive coverage was in the (mandated) health insurance package for employees. The Obama administration put this mandate in the regulation knowing perfectly well that it violated the long-standing tenets of several religious groups. They did not care. The law itself, basic Obamacare legislation, did not provide that contraceptive coverage was mandatory, that was an Obama policy decision. They knew that requiring it by regulation was a stretch, but they did not care.
This version of the regulation was quickly “fixed” with an “exemption”. Eligible religious organizations didn’t have to follow the rule if they have religious objections to providing contraceptives. The problem? The exemption was drawn incredibly narrowly, effectively to houses of worship and their affiliates only, contrary to standard laws and regulations exempting religious persons with conscience issues. The regulations put out received so many objections that HHS felt the heat and came up with a revision that they hoped would pass muster with enough of the religious groups that they could ignore the few remaining. The second “fix” was the so-called “accommodation”: to allow a religious employer to file a form with the government and insurer stating that they were religiously opposed to providing contraceptive care, and the insurer would then contact and provide contraceptive coverage to the employees (who wanted it) so called “separately”. Included in the package deal, of course, was the unmentioned but still present reality that contraceptive care remained a feature of the “plan” of insurance the employer was arranging. This is especially clear with respect to self-insured employer plans, who arrange to have a third-party administrator operate the system:
Thus, “[i]f” and “[w]hen” the organization signs and submits the form—but only if and when it does so—its own insurance company becomes authorized and obligated to provide “payments for contraceptive services” to the organization’s own plan beneficiaries in connection with the organization’s own health plan…Moreover, the contraceptive “payments” are available to the religious organization’s plan beneficiaries only “so long as [they] are enrolled in [the religious organization’s] plan,” id. § 54.9815- 2713A(d), and only so long as the organization maintains its “contract” with a TPA or continues to “provide benefits through” an insurance issuer,
…the Government has repeatedly conceded that in the self-insured context, “‘the contraceptive coverage is part of the [objecting organization’s health] plan.’” RCAW Pet.App.145a. This concession was unavoidable because TPAs have authority to administer only the coverage a plan sponsor includes in its health plan.4 To make the mandate work, then, the regulations require selfinsured religious organizations to effectively amend their health plans to “ensure that there is a party with legal authority to arrange for payments for contraceptive services.”
So between constructing an insurance plan, filing the form, and paying for the insurance, unavoidably the employer is an essential cause of the employees getting contraceptive coverage. Which is the whole problem to begin with, and no solution to the morally objectionable issue they had from the start: complicity with intrinsically evil acts. The religious groups here believe that using artificial contraceptives to prevent pregnancy is an intrinsically evil act, one that is evil from its object regardless of the intentions and circumstances.** As such, complicity with that evil by arranging for insurance coverage for such medicine would be either (direct) formal cooperation with evil, or (indirect) proximate material cooperation with evil. And either way is morally wrong.
A number of religious organizations sued Obama and HHS, including the Little Sisters of the Poor and my alma mater, Thomas Aquinas College, mainly using RFRA, the Religious Freedom Restoration Act, which says that if the government is going to impose a constraint or action on someone that interferes with their religion, it must both be for a compelling interest and be the least intrusive manner of achieving that compelling interest. Their point is rather obvious: it is not true that universal insurance coverage – seamlessly - for contraceptives has a compelling purpose. And, even if it were, it is outrageous to suggest that this particular model of employer-constructed coverage is the least intrusive means of obtaining it.
That it is not a compelling interest of the federal government is as obvious as the sun. Nothing about our nation has changed in the past 8 years (since Obama took office) that has made it so that universal contraceptive coverage is now a compelling interest of government when it wasn’t before, and it _certainly_ was_ not before. There is, simply, no good rationale that supports the claim that it is compelling. The government’s own arguments, AT BEST, only show that the purpose is legitimate, not compelling. Even if we set aside (for the sake of the argument) that using contraceptives is immoral and can never be a necessity much less a compelling one, and allow that Americans as a whole want and will use contraceptives, that doesn’t make universal insurance coverage, seamlessly through employer insurance, a compelling federal government interest. People before 2010 were finding it _relatively_ easy to get contraceptives even if they weren’t covered by insurance. Contraceptives are just not that expensive, compared to, say, chemo drugs or AIDS drugs. For people who just could not afford it, there were already numerous programs in place by which they could get cost assistance. (Not to mention just keeping their pants on, which is completely free. But we won’t mention that, because liberals don’t believe that a person can keep his or her pants on, as we were taught by President Clinton.) There was no broad national “failure” of getting contraceptives to people who “need” them, that making contraceptives available via universal insurance coverage became now a compelling federal interest.
And of course there are other pathways to availability than seamlessly through universally mandated employer-constructed insurance plans. Without the mandate, it was (already) included in employer-paid insurance for about 90% of the insured. Most employers didn’t care morally about the issue, and were willing to include it. For people who were self-employed or otherwise buying their own insurance, they already had the option to buy coverage for contraceptives. It’s not that expensive an addition, since the insurer is also covering prenatal and birth costs.
And finally, there is the sheer fact that if the federal government thinks that every woman should be able to get contraceptives for free, it can pay for them directly, and just tell every insurer to cover it and dunn the government. If it really is a “compelling” interest, then the feds ought to be willing to make sure it happens, even for people not actually covered by employer insurance (including, of course, the employees of exempt employers, small employers, employers with grandfathered plans, and even employers who simply choose to pay the “no insurance” tax, who all get out of the insurance mandate altogether), it should be willing to put its money where its mouth is. But, of course, Obama was never going to convince Congress to do that - which is just another way of saying that there is no compelling federal interest to begin with. So, there is no real case that universal employer-constructed contraceptive coverage is a compelling federal government interest.
In spite of that, the Obama administration (spitefully) insisted that religious employers MUST arrange for contraceptives, even if it is against their religion. In the HHS coven making the decision, one can surmise that at least some people were just adamant that even if they had to exempt “houses of worship”, by golly they weren’t going to let OTHER nutcase religious groups get away with not covering contraceptives. Was there cackling at the thrill of finding they got to stick it to the Little Sisters with the rest of the religious “fanatics” regardless of the merits of the basic position?
Now we have finally come to the crunch: The Little Sisters, Thomas Aquinas College, Catholic University of America, and 33 other organizations sued. The cases have been grinding their way through the district courts and appellate courts. As was fairly predictable, some appellate courts ruled for, some against, so it went to the Supreme Court. That court held oral arguments on March 23, in which the justices were (predictably) very pointed with the two sides: some of the liberal justices were hard on the religious groups, some of the conservative justices ripped the government to shreds.
In a not noticeably biased review, the government’s case “coming out was substantially weakened from what it was going in”.
We can’t say we know what is now going on behind closed doors at the Supreme Court, but we can make some shrewd guesses. In a nearly unprecedented move, the Court has asked both sides to submit new briefs on a possible compromise position. Plausibly, the Court is stuck in a 4 to 4 tie, and (with a varied slate at the appellate level) it cannot reasonably just let the tie stand and leave the appeals court decisions prevailing. Therefore, again plausibly, we can guess that someone (at least) on the Court is theoretically prepared to abandon their full support for one side based on considerations for a compromise scenario that meets the criteria the Court set the two parties for re-brief.
The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees. Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners. For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.
It seems likely that some compromise will be worked out. And if so, it seems almost certain that whatever compromise will be allowed, it will enable religious employers to not provide for their employees contraceptive coverage. If they could find such a position by going to court, the government could have accepted such a position upon receiving so many vociferous objections before going to court.
*I admit the slightly tendentious coloring to the title above. The Little Sisters are adult women. However, they are in absolute literalness poor: they take vows of poverty, and the truly live those vows. They don’t have posh residences (like clerics sometimes do), their resources go into care for their flock – the indigent elderly.
And they are literally little. The Little Sisters come to my church at least once a year to drum up support, and invariably (so far as I have seen) they are small. I don’t know if they actually turn away postulants who are over a certain height (seems unlikely), but I have never seen a tall one. Some of them areremarkably short – such as the Guatemalan ones who don’t manage to reach 5 ft.
And of course they are all females. So, yes, the coloring to the title is slightly misleading. Live with it.
** There are 3 fonts of morality in the human moral act: the object, the intention, and the circumstances. All three must be in order to have a morally good act. The object must, of its own character, (and apart from the intention of the act) be either good or neutral. The object is the form of the act, that which states its species, that which is the nature of the act he chooses. A knowingly contracepted sexual act has an inherently bad object, and therefore the act is intrinsically evil (i.e. not evil merely from disordered intention). This post is not, as such, about the wrongness of contracepted sex.