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Thoughts on the “Revised” HHS Mandate

Yesterday, President Obama announced changes to the HHS mandate requiring every employer to cover contraceptives (including early abortifacients) and sterilization.  The White House is doing its best to spin this as a victory for both women’s health and religious liberty.  We even have a number of Catholics (most notably Sr. Carol Keehan, president of the Catholic Health Association) celebrating this as a great compromise:

“We are pleased and grateful that the religious liberty and conscience protection needs of so many ministries that serve our country were appreciated enough that an early resolution of this issue was accomplished,” said Keehan.

But many are not so satisfied.  Notre Dame’s Carter Snead said that the so-called compromise was “nothing of the sort.”  Several pro-life blogs are calling it a shell game.  Even the NYTimes is putting the word “accommodations” in scare-quotes (note the caption under the picture).  The US Bishops have issued a very clear statement about why this new version of the mandate is still very problematic.  They admit that they are just hearing these changes, and they call for more careful moral analysis, but their objections are twofold.

First, the law still mandates that every insurance plan cover morally objectionable services (contraceptives, abortifacients, sterilizations).  Second, although the revision seems to shift this obligation from employers to insurance companies, it is not clear precisely how that would work, since by law the employee cannot be made to pay more for these services.

I am beginning to hear the suggestion that, in fact, covering these services is in the interests of the insurance companies:

Covering contraception saves money for insurance companies by keeping women healthy and preventing spending on other health services. For example, there was no increase in premiums when contraception was added to the Federal Employees Health Benefit System and required of non-religious employers in Hawaii. One study found that covering contraception lowered premiums by 10 percent or more. (from here)

The suggestion here is that there really is no “hidden cost” that is being passed on to employers.  There are savings, instead!  The Catholic Church can now rest easy that it is not cooperating with evil in any way.

Although it has been the focus of much of the conversation, footing the bill is not the only way that one cooperates with evil.  And certainly it is clear that the most economically efficient path is never on those grounds alone morally upright (that kind of thinking has justified everything from slavery to genocide).

The Bishops are certainly right to call for more careful moral analysis, but I must say that I also think that their instinct to continue to reject the mandate on its new terms is exactly right.

I think we may need to take a turn into the substantial differences in the goods being pursued here.  Why is it so obvious to so many people that contraception is a good that women must have access to free of charge?  Note that other basic medical needs (asthma inhalers, insulin) are not seen as being quite so necessary, quite so important, and are not placed in the there-can-be-no-copays category.  Nor, for that matter, is anyone arguing that basic unpaid access to food should be so universal (I am aware of and supportive of programs like WIC and foodstamps, but there is no claim that we have to have food available universally).  Why has contraception, of all things, become such an obvious, necessary good for women’s health and for public health more generally?  On the other hand, why is it so obvious to bishops (and some other Catholics) that contraception is an evil, that it is ultimately bad for women, that not only those who use it but those who help others access it put their souls in jeopardy?  (Let me note that Jana Bennett’s recent post tries to get at some of these questions.)

I think Obama’s “compromise” helpfully moves us past the illusion that the only question is who pays for these morally objectionable services and moves us forward to the more crucial question: can and should the government mandate insurance coverage of morally objectionable medical services?    If you want to answer “Of course the government shouldn’t mandate morally objectionable services, but this is contraception … no one reasonable objects to it,” are you ready for the moment when the conversation is about abortion, or euthanasia?  We do need to consider why these services are morally objectionable and what goods are at stake in providing (or refusing to provide) those services.  But it’s also crucial to note that the basic question remains (regardless of who pays for it) whether the government can and should trump its citizens’ moral and religious sensibilities in this way.



  1. Dana–

    Good follow-up here. I just want to offer two brief comments.

    1. The problem the bishops will surely face at this point is that Catholic organizations in dozens of states have apparently (without vocal conscientious objection?) complied with state-level mandates on this issue. If this is in fact such an egregious violation of religious liberty, such mandates at the state level would have been equally egregious… and presumably could have been litigated? Perhaps this was a past failure – thus, the bishops might well be in the right. But it surely makes their case quite difficult! This seems like an invitation to Catholic employers of all sorts to look at everything they do and check their conscience!

    2. You ask: why is it that contraception is understood to be something that should be available without ANY kind of co-pay? The problem here is the two silent assumptions which it is so difficult to debate: one, that sexual freedom is a fundamental right (and that means, sexual freedom without having to have children), and two, that unwed pregnancy and childbirth is a huge problem for our society, and we can’t say it’s a problem, because we might then have to rethink assumption #1. Ergo, solve two problems with one easy, popular solution: free contraception.

  2. David, thanks for your comments. I think both are spot on. I think I’ll risk adding, however, to your second major point that there may be a third assumption lurking in the midst of the other two: pregnancies among women least likely to be able to afford birth control are the pregnancies “our society” is most concerned about. I think that’s part of what animates the drive for this.

  3. I think it’s important to remember that a major element of the healthcare law is the move to preventative care without co pays period..we can debate wether or bot birth control is preventative healthcare, (a debate we need to have as has been noted in a number of posts here) but within the context of this new law and it’s push about preventative healthcare – I don’t think you can quite view it simply about free contraception and sexual freedom….it isn’t just birth control but all classified as preventative services (so no copayment for yearly physical as well was part of law as I understand it.)

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