ON FEBRUARY 10, PRESIDENT Obama announced an “accommodation.” Instead of mandating that religious employers purchase plans that cover contraception, the mandate was shifted to the insurance companies. The insurance companies would have to notify the employees at Catholic institutions that they were eligible for such coverage and the insurance companies would have to pick up the tab. This accommodation dealt with the precise issue of conscience: Catholic institutions would not have to do anything. They would not have to refer their employees to alternate means for accessing the coverage. They would not have to pay for the coverage. All would be done by the insurance companies. The accommodation, alas, still relied upon the underlying insurance policy, purchased by the Catholic organization, to serve as the vehicle for providing the coverage. It was denounced by some as a “shell game.”
The larger problem, however, was the fact that many Catholic organizations self-insure: They are their own insurers, and consequently shifting the mandate did nothing to help them. On the day the president announced the accommodation, the White House sent staff to brief the USCCB. When the staff at the bishops’ conference raised the issue of self-insured organizations, the White House staffers were flummoxed and did not know how to respond.
The political landscape then began to change. On February 16, five men appeared before a congressional committee to testify on the issue—including Bishop William Lori, head of the USCCB’s ad hoc Committee on Religious Liberty. The absence of women from the panel helped shift the debate from one about religious liberty to one about contraception and women’s rights. When Rush Limbaugh called Georgetown law student Sandra Fluke, who had testified as part of a counter-panel organized by congressional Democrats, a “slut,” the shift from religious liberty to women’s rights was complete. And, not unimportantly, the campaign coffers of the Democrats began to overflow. Within a fortnight of Limbaugh’s comments, a Senate bill to expand the exemptions lost and, after seeing the GOP’s numbers among women voters tank in the polls, Speaker of the House John Boehner pulled a bill that would have widened the exemption.
On March 16, the White House announced a further accommodation that offered possible remedies for resolving the issue of self-insured religious organizations, although the proposed rule is still in the comment period. Some Catholics have pronounced themselves satisfied with this accommodation although others, including the USCCB, continue to insist it does not meet their concerns. The core problem for many Catholic liberals remains the fact that the initial four-part rule for qualifying as an exempt institution remains.
The bishops have since issued a statement calling for all Catholics to get involved in defending religious liberty, calling for a “fortnight for freedom” of prayer and penance in late June. But, no matter how many letters from the pulpit are read at Mass, no matter how many church bulletin inserts address the issue, the moment that Mr. Limbaugh called Ms. Fluke a “slut,” the debate was altered in ways the bishops will be powerless to change. They may rile up those Catholics already hostile to Obama. It is doubtful they will be able to sway the center of the electorate, including those all-important, swing-voting Catholics in states like Ohio and Florida where elections are decided.
WHAT WOULD A SOLUTION look like? In any successful negotiation, everyone must walk away from the table with something they want. Regarding the mandates, the bottom line for the bishops, and most Catholics, is rescinding the four-part test for qualifying as an exempt organization that draws an arbitrary distinction between religious worship and religious practice. For abortion rights groups, the bottom line is maximizing the availability of free contraception to all women. How to square the circle?
There is a growing determination among some bishops to find a solution to the specific policy issue, yet the bishops, at times, have not made their plight any easier. When the president announced his first accommodation in February, the bishops’ conference slightly shifted their argument. In addition to pleading for a wider exemption for religious institutions, they began to emphasize their support for an individual exemption for any and all employers, including secular employers, on religious grounds. Not only did this appear to some as a shifting of the goal posts, it changed the issue from one about the right of the Church to be the Church, to support for a policy that would effectively gut the mandate entirely. This muddied the waters, making the bishops’ position look less like a principled defense of religious liberty and more like an effort to bolster Republican efforts to retard and repeal Obama’s healthcare plan.
It is also unclear that the bishops and others seeking a wider exemption will be able to take their case to the courts with any hope of winning. In fact, one of the ironies of the situation is that while Mitt Romney and other Republicans inveigh against a “war on religion,” and fret about the left’s secularizing agenda, the principal legal hurdle standing in the way of a broader exemption is a 1990 Supreme Court decision. Employment Division v. Smith held that generally applicable laws, not intended to obstruct specific religious practices, required no explicit religious exemption. That opinion was penned by none other than stalwart Catholic Justice Antonin Scalia.
One proposal that is gaining some attention, if not yet any adherents, is to eliminate the four-part test, expand the category of exempt institutions, and to permit women who work at such exempt institutions to get access to the coverage their insurance plans lack at the local exchanges the ACA sets up. The government would pay for the additional coverage. This would appeal to the Catholic Church because it completely removes them from any cooperation with the mandate. It would appeal to abortion rights groups who would achieve universal access to free contraception for all women. The difficulty would be getting Republicans in Congress to agree to additional federal money to pay for the coverage, but perhaps, after November, if Republicans are sincerely worried about religious liberty, they could be persuaded to pony up what would be a relatively small amount of federal dollars to achieve a workable solution.
For now, it is doubtful that Congress can achieve any kind of consensus on this, or any other, issue during an election year. The White House, with its boisterous polling numbers among swing-voting, affluent, suburban women, has precisely no reason to seek a further accommodation before the election. There are a variety of concerns that voters rate higher than the HHS mandate, and elections are difficult to predict and also difficult to interpret. And yet, Catholic voters—while not a monolithic group by any means—are regularly determined to be a powerful swing vote, backing George W. Bush by 5 points in 2004 and Obama by 8 points in 2008. It is difficult to see how Democrats can win back key House districts, largely populated by culturally conservative Catholics, such as Michigan’s First District, a seat long held by Rep. Bart Stupak, without some kind of solution. Some bishops have cavalierly threatened they will close down Catholic ministries rather than comply, but that is scarcely an option for more level-headed bishops. The Catholic Church has not survived for 2,000 years by cutting of its nose to spite its face. But, to find a solution, all sides need to stop digging themselves into ever-deeper holes, tone down the rhetoric of a “war against religion” versus a “war on women,” come to the table and negotiate in good faith. The only “win” available has to be a win for everybody.
Michael Sean Winters is a regular contributor to the National Catholic Reporter and The Tablet (London). His latest book is God’s Right Hand: How Jerry Falwell Made God a Republican and Baptized the Religious Right. He serves on the editorial advisory board of Religion & Politics.