Everything You Need to Know About the HHS Mandate Before the 2012 Elections
By Michael Sean Winters | May 1, 2012
The Obama administration was warned, but they never really saw it coming. When they announced in January they would not be expanding the conscience exemptions to a new mandate, requiring health insurance to cover contraception and other “preventive” procedures, they did not realize how strong the blowback would be. Prominent Catholics who had largely supported the administration were strongly critical. E.J. Dionne penned a column in The Washington Post. The editors of the National Catholic Reporter, the bastion of liberal Catholicism, called on Obama to reverse course. Chris Matthews, on MSNBC, castigated the administration. When Walter Cronkite decided to criticize the Vietnam War, Richard Nixon famously observed, “If we’ve lost Cronkite, we’ve lost middle America.” Similarly, when the White House lost Chris Matthews, it lost progressive Catholics.
The mandate controversy has created a firestorm for the Obama administration and it remains unclear even now how the issue will play out politically, still less what policy adjustments might yet be made to satisfy the different stakeholders in the debate. The new mandate has been criticized by many, but especially by Catholic organizations, including the powerful United States Conference of Catholic Bishops (USCCB) and the Catholic Health Association (CHA), which oversees the work of Catholic hospitals, which care for one-sixth of all patients in the United States. These two organizations parted ways over the Affordable Care Act (ACA) in 2010—with the bishops opposing it and the CHA supporting it. But in January, the two groups were united in their opposition to the Obama administration’s mandate, and both are still working to fix the problem.
Indeed, from the start of the debate, the issue has been cast as a “Catholic” one. This is not only because of the Catholic Church’s traditional opposition to contraception, but primarily because the Catholic Church has such a vast network of schools, hospitals and social service providers that would not meet the administration’s demands for an exemption. Additionally, the mandate would create difficulties primarily for those Catholics most likely to support the Obama administration—those who value, staff, supervise and contribute to the social justice ministries of the Church. Sr. Carol Keehan, President of the CHA, had endured a great deal of criticism from some Catholics for leading her organization to support Obama’s healthcare plan. Father John Jenkins, president of the University of Notre Dame, had also sustained withering criticism for his decision to welcome President Obama to the school’s commencement in 2009 and grant him an honorary degree. Why would the administration so blatantly betray its Catholic friends?
IT ALL STARTED WITH an otherwise obscure bureaucratic rule. Last August, Kathleen Sebelius, the secretary of Health and Human Services (HHS), issued a proposed new rule regarding which medical procedures and prescription drugs would be required in all health care insurance policies. She was acting under the authority of the Affordable Care Act (ACA). Among the newly required procedures and prescription drugs were contraceptives, sterilization and certain drugs that critics consider to be abortifacients.
Included in the proposed new rule was a “conscience exemption” for churches, but to qualify as exempt, a given religious organization had to meet a four-part test: (1) it must primarily employ people who are of the same faith; (2) the exempt church must also primarily serve co-religionists; (3) it must qualify under Section 6033 of the Internal Revenue Code as a “church”; and (4) the exempt church must have as its “purpose” the “inculcation” of religious belief. This narrow exemption, especially the insistence on serving and employing co-religionists, would seem to penalize Catholic organizations because they serve all the poor, not just the Catholic poor. And Catholic universities and colleges now found that their commitment to diversity was precisely the thing that prevented them from qualifying as an exempt institution. There could be diversity at Catholic schools, but not for Catholic schools.
There was a deeper, more theological, issue as well. For Catholics, universities and colleges carry on the intellectual life of the Church, a commitment that predates and survived the Reformation and its critique of Catholic conceptions of faith and reason. As well, Catholics have never understood religion in the kind of individualistic way that the sixteenth century Reformers, sometimes in spite of themselves, conceived the issue. With the Enlightenment, religion was not only individualized, it was privatized. The narrow exemption within the HHS mandate understood religion as something done on Sunday and only amongst one’s own. These privatized terms were nonsensical and even offensive to Catholics, especially progressive Catholics most likely to value the social justice work of the Church and, ironically, most likely to support Obama.
Throughout the early autumn, sources close to the negotiations between the administration and Catholic organizations indicated that both Sebelius and the White House realized they had erred. After the period for official comment on the proposed new rule closed at the end of September 2011, most Catholics expected the administration to expand the exemption. This expectation seemed all but certain when President Obama met with then-Archbishop, now Cardinal, Timothy Dolan, the President of the USCCB, in mid-November and assured him that he would be pleased with the administration’s eventual ruling. A few days later Dolan was set to lead his first plenary meeting of the USCCB and he told the bishops that he was hopeful a resolution would be offered. “I found the president of the United States to be very open to the sensitivities of the Catholic community,” Dolan said at a press conference. “I left there feeling a bit more at peace about this issue than when I entered.” During their closed-door executive session, several especially conservative bishops reportedly criticized Dolan, saying he had been rolled by the White House and warning that President Obama could not be trusted. Dolan stood his ground.
Meanwhile, abortion rights groups and their allies on Capitol Hill began to worry the White House would offer a way for organizations to opt out of contraception coverage altogether. They began pushing back hard against any widening of the exemption. The pro-choice caucus in Congress organized a conference call with senior White House staff. Many were miffed at President Obama already because he had decided not to lower the age at which young women could get Plan B without a prescription, a decision announced in early December.
On January 20, 2012, Obama called Dolan and Sr. Carol Keehan to announce that, despite his promise in November, there would be no change in the exemption. The decision poisoned relations between the genial Dolan and Obama, perhaps irretrievably. According to Dolan’s account of the conversation, when the president said he was giving Catholic organizations a year to determine how to comply with the mandate, Dolan replied, “Well, sir, we don’t need the [extra time]. I can tell you now we’re unable to comply.” Dolan felt betrayed, a feeling that was only reinforced when he had to return to the bishops who had warned him against trusting Obama, and eat crow. Keehan, in her typically understated way, announced she was “disappointed” by the president’s decision.
It is unclear why the White House made the decision it did, but it fit with a certain election year political calculus. Thomas Edsall, writing in The New York Times last November, described how the Obama campaign would avoid offending the Democratic base at all costs going into the 2012 elections. The strategy was to maximize support among minorities and those dependent upon the government’s social safety net, as well as among upscale voters worried about conservative positions on social issues. As Edsall wrote, “The better-off wing…puts at the top of its political agenda a cluster of rights related to self-expression, the environment, demilitarization, and, importantly, freedom from repressive norms — governing both sexual behavior and women’s role in society — that are promoted by the conservative movement.” The decision not to widen the exemption was clearly designed to placate such voters.
The outcry from Catholics over the mandate proved the Obama administration had struck a tribal chord. History has required Catholics to band together. They built their network of schools in the late nineteenth and early twentieth century because the public schools still required the reading of the Protestant version of the Bible, and compulsory Protestant prayers. Catholic colleges were founded at a time when Catholics were not welcome at mainstream public or private colleges. The network of Catholic hospitals was part of the immigrant Church; as early as the Civil War, Catholics had entered into contracts with the federal government to care for those wounded in battle. Catholic social service agencies had been started before the federal government had the HHS. While these agencies once primarily assisted poor Catholics, they now serve anyone who is poor or vulnerable. Having built these institutions in the face of hostility or indifference from the wider culture, and after embracing the American insistence on a wall of separation between Church and State, it is no wonder Catholics would be dismayed to find that same culture now clamoring over that wall of separation to tell them how to run their own institutions. Critically, the issue became framed not as a debate about the merits of contraception, a debate the bishops knew they would be sure to lose. The issue had been framed, and joined, as a debate about religious liberty.
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