Given the outrage from the perpetual outrage machine and some of the not so perpetually outraged, I thought I should take a look at the Health and Human Services rule that has the Catholic bishops so worked up.
Apparently what is going on is this. The Affordable Care Act specifies that a group health plan and a health insurance issuer offering group or individual health insurance coverage must provide benefits for and prohibit the imposition of cost-sharing with respect to:
Evidence-based items or services that have in effect a
rating of A or B in the current recommendations of the United States
Preventive Services Task Force (Task Force) with respect to the
Clear as mud so far. But, basically, the Task Force was charged with recommending the most important services or items that had to be covered by group health plans without requiring cost sharing by the insured. As part of this process, the Health Resources and
Services Administration was tasked with developing comprehensive guidelines for preventive care and screenings with respect to women. (See HHS docket HHS-OS-2011-0023-0002). As part of that process:
Most commenters, including some religious organizations, recommended that HRSA Guidelines include contraceptive services for all women and that this requirement be binding on all group health plans and health insurance issuers with no religious exemption. However, several commenters asserted that requiring group health plans sponsored by religious employers to cover contraceptive services that their faith deems contrary to its religious tenets would impinge upon their religious freedom.
These guidelines apply to non-grandfathered group health plans and health insurance issuers. HHS didn’t go quite as far as HRSA recommended, deciding instead to offer exemptions for certain (but not all) religious institutions. The exemption applies to a religious employer that:
(1) Has the inculcation of religious values as
(2) primarily employs persons who share its religious
(3) primarily serves persons who share its religious tenets;
(4) is a non-profit organization under section 6033(a)(1) and
section 6033(a)(3)(A)(i) or (iii) of the Code. (Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and
conventions or associations of churches, as well as to the exclusively religious activities of any religious order.
HHS explained that its intent was “to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.”
HHS did not come up with this in a vacuum. Once they decided that contraception was an important part of a woman’s health care, they looked to the States that had also made that determination to see how they handled religious exemptions. Here is a chart. Eight of those states provided more expansive religious exemptions than those adopted by the HHS rule. The remainder were similar to or more restrictive than HHS. If I’m reading the chart correctly, Colorado doesn’t allow any exemptions. Arizona, California, New York, and Oregon are less permissive with religious exemptions than the HHS rule. Arkansas, Maine, Massachusetts, Michigan, New Jersey, North Carolina, and Rhode Island have exemptions comparable to the HHS rule. And, Delaware, Hawaii, Illinois, Maryland, Missouri, Montana, and New Mexico have a more expansive exemption. Interestingly, Connecticut seems to require that, if there is a religious objection, the entity can opt to provide the required contraceptive coverage through a subcontractor or third party insurer.
I’ll just leave it at that for now. I might get into a more general discussion about morality and contraception later.
Update I recalled that the Supreme Court had recently decided a case that had something to do with a religious organization’s duty as an employer to abide by the employment laws that apply to everyone else and the special privileges it enjoys with respect to such laws because of its status as a religious organization. It wasn’t necessarily on point, but it gave me the overview on how the Court thinks of such things. The case was Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The court there recognized a ministerial exception allowing churches to choose their ministers in violation of the Civil Rights Acts.
But, in the context of this contraception issue, I thought these paragraphs were fairly useful:
The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the [*15] Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).
(Emphasis added). I’d say that the HHS rule is focused on physical acts and, by providing an exception for churches themselves – as opposed to their less inherently religious activities like hospitals – is attempting to steer away from the faith and the mission of the church itself. The valid and neutral law is one of general applicability that prescribes activity that some churches proscribe. Seems like the kind of thing allowed under Smith.