A contraception compromise in good faith

The Washington Post Editorial Board praises the "good faith" compromise of the Obama administration on contraception and health-care, which was elaborated on this past Friday:

The group health plans of religious employers such as houses of worship would be exempt from the mandate. Nonprofit organizations associated with a religious group — a Catholic university, say — would not be required “to contract, arrange, pay or refer for any contraceptive coverage to which they object on religious grounds.” Instead, insurance companies would be on the hook. HHS would require insurers to provide contraceptive care to employees through individual insurance policies, cordoned off from the organization’s group plan. This would be no great burden on the insurance companies; they will likely save money because they won’t have to pay the costs associated with unintended pregnancies. Employees at institutions that self-insure, meanwhile, would gain access to contraceptives through unaffiliated insurance companies, which would get a small break on some fees for their trouble.

Critics say that these arrangements are simply a numbers trick; religious employers, they argue, would still, in some way, facilitate access to contraceptives. But they would be about as insulated from the provision of contraceptive coverage as they could reasonably expect to be while participating in a big health-insurance pool.

The article states the need to address contraception both in terms of health-care (unintended pregnancies are the leading cause of preterm birth, low birth weight, and often lead to abortions), and the theological concerns of religious employers. The WP Editorial Board states that they now have this "hard question right".

Comments (7)

So, what does the Roman Catholic hierarchy have to say about this?

This may be a necessary political compromise, but Catholic bishops have sold the country a bill of goods. See my post of a year ago, “Obama and the Contraceptive Mandate.”

My sense of Chris Epting's question is that many Roman Catholics are awaiting court outcomes grounded on the provisions of the Religious Freedom Restoration Act, the most salient of which seem to be that:

2.2 "laws "neutral" toward religion may substantially burden religious exercise as surely as laws intended to interfere with religious exercise;"

"Section 3:
(b) EXCEPTION. -- Government may burden a person's exercise of religion only if it demonstrates that application of the burden to the person --
(1) furthers a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest."

(6c is also interesting, and probably important legalese: that the act shall not be construed to authorize the government to substantially burden any religious belief)

Most of the argumentation I've heard from "plugged-in" Catholic friends suggests that the legal challenges are focusing on Section 2.2 and Section 3b.2 of the RFRA: that the contraception mandate winds up substantially burdening religious exercise, and that there might have been a less-restrictive means of furthering the governmental interest.

Intriguingly, they seem to be allowing a "pass" on the notion that the health care community's classification of contraceptive health care as "preventative medicine" winds up representing public health in the eyes of the health care community, and thus might be a "compelling governmental interest." (perhaps ignoring this only because the other provisions seem more limiting and thus easy to base an objection on)

It seems to me (and I'm a rank amateur) that any legal decision to support the mandate+exemption package would have to be based on some notion that there isn't any practical alternative to employer-based healthcare, and that this is the "least-restrictive" possibility to burdening religious exercise. Other rulings might stand on the notion that the RFRA explicitly protects the practice of PERSONS and not ORGANIZATIONS, but the fact that an exemption has been drafted might have ceded that territory to begin with, and those of us whose vocation is wrapped up in religious organizations probably wouldn't appreciate that as a precedent.

The Washington Post editorial seems to suggest that the level of abstraction required to connect the practices under the exemption to a notion of "emburdened religious practice" is sufficient that the RFRA wouldn't properly apply: religion not being burdened, we need not consider whether the manner of burdening attains to the two provisions (a charge of "nonfelicity" against the deployment of the RFRA as defense).

#twocents, as the kids say.

The religionclause blogspot page also tends to have a pretty good round-up of the intersection of religious freedom and legal cases. A recent example on this topic: http://religionclause.blogspot.com/2013/02/another-small-business-challenges.html

The whole thing is ridiculous. Contraception is healthcare for women, and we shouldn't have to do this ridiculous twisting and turning to get what we need.

Forcing this Rube Goldberg solution sends the message that, once again, women's rights and needs are less important than those of a bunch of loudmouthed men who are intent on maintaining their control over women.

This is not a "hard question"--particularly given that many Catholic institutions have been paying for birth control for years. The whole phony issue has been a political ploy to embarrass the President, and I am deeply disappointed in him for compromising on it. He has repeatedly used our reproductive health and choices as a "bargaining chip"--something that never seems to be done with men's health issues. (Anyone talking about going through all these contortions to keep the church from having to pay for Viagra? I didn't think so....)

It's time someone stood up for women and reminded the U.S. Conference of Catholic Bishops that Catholic dogma applies only to those who voluntarily choose it. If I wanted to live in a theocracy, I'd move to Iran. I don't need my President negotiating with people who are bent on controlling my body and my choices in the name of a God I don't worship.

What Paige said.

Big surprise-- it is not enough for the RC bishops

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