Everything You Need to Know About the HHS Mandate Before the 2012 Elections
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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.
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.