Does the HHS Mandate Go Further than the States’?

The Obama Administration is seeking to defend the HHS Mandate by claiming that the federal government is doing nothing more than what the states are already doing.  HHS Secretary Sebelius argued in USA Today:

The 28 states, according to NARAL

In choosing this exemption, we looked first at state laws already in place across the country. Of the 28 states that currently require contraception to be covered by insurance, eight have no religious exemption at all.

The religious exemption in the administration’s rule is the same as the exemption in Oregon, New York and California.

The Administration’s allies have been trotting out the same argument.  For example, Michelle Goldberg at Daily Beast condescendingly dismisses Catholics’ “enraged response” to the HHS mandate as “displaced,” by arguing that:

From all the hysteria over the administration’s insistence that Catholic institutions provide insurance that covers birth control, you’d think it was a big change—but 28 states already have such laws on the books.

Is that true? No, not really, according to the USSCB’s Sister Mary Ann Walsh:

The federal mandate is much stricter than existing state mandates. HHS chose the narrowest state-level religious exemption as the model for its own. That exemption was drafted by the ACLU and exists in only 3 states (New York, California, Oregon). Even without a religious exemption, religious employers can already avoid the contraceptive mandates in 28 states by self-insuring their prescription drug coverage, dropping that coverage altogether, or opting for regulation under a federal law (ERISA) that pre-empts state law. The HHS mandate closes off all these avenues of relief.
Osmar Schindler, David and Goliath (1888)

I haven’t investigated this myself, but that sounds right.  If so, it’s a huge difference.  A conscience-violating plan that forces Catholic institutions to self-insure or opt for ERISA is one thing; a conscience-violating plan that leaves no relief (other than dropping insurance completely, or ending social services completely) is quite another.  It’s also worth mentioning that the Catholic Church fought these state plans in court, too.

So the Administration can pretend it’s going no further than the states have gone, but that’s just not true. Of course, it’s also worth seeing this as a pattern.  According to Sebelius, the government actually looked to what the states got away with, in crafting their own policy.  That is, the battles which may have seemed insignificant (whether New York could or couldn’t require Catholic employers to provide contraceptive coverage) weren’t, since they paved the way to this point.  And even now, we’re not at the limits to what the Administration wants to do.  If it succeeds here, that’ll be used as a precedent for more and more religious encroachments in the future.

My prayer is that this marks a turning point: that we succeed in beating the federal mandate, and use that momentum to attack the states’ contraceptive mandates.  Ideally, I’d like to see a nation which doesn’t force anyone (whether a religious institution, or simply a conscientious employer) to purchase contraception, abortion, and sterilization.  Is that too much to ask?


  1. It may very well be too much to ask. Consider this:

    The US spends 7.4 per cent of GDP on public healthcare (to which very few are entitled). The UK spends 7.2 per cent of a smaller GDP on the NHS, a system to which everyone in the population has an absolute right

    And also:

    61% of bankruptcies in the US are caused by the costs of healthcare.

    Clearly, we need a change in health care coverage towards that of the NHS. But, if so, this is going to involve mandates. And while the contraception one could be avoided, if the government caved to every interest group out there it would riddle the program with holes and it would not work. To make an omlet you have to break some eggs, right?

  2. Well, ideally, no. But the point is that if you carve out exceptions to a health care system for every interest group, you will end up with something like the horrendous system we’ve had and I described above.

    And, its mostly beside the point, but I doubt the Supreme Court will think this a first Amendment violation. I mean, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court determined that a state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual.

    I don’t think this is a much better case than Smith had, do you?

  3. And the truth is, at this price, you probably don’t want the “omelet”; but its important to see why the other side is willing to “break the eggs”, don’t you think?

  4. HocCogitat,

    (1) Justice Blackmun (the author of the Roe decision, and no friend to the Catholic Church) dissented from Smith, and noted in a footnote:

    “In this respect, respondents’ use of peyote seems closely analogous to the sacramental use of wine by the Roman Catholic Church. During Prohibition, the Federal Government exempted such use of wine from its general ban on possession and use of alcohol. See National Prohibition Act, Title II, § 3, 41 Stat. 308. However compelling the Government’s then general interest in prohibiting the use of alcohol may have been, it could not plausibly have asserted an interest sufficiently compelling to outweigh Catholics’ right to take communion.”

    Given your argument, would you say it wasn’t a violation of the First Amendment if the government outlawed sacramental wine as part of a large-scale Prohibition? After all, religious freedom is apparently just a “special interest” to be balanced against all other special interests. If not, how are you distinguishing that from the contraception mandate?

    (2) In any case, that “special interest” argument goes both ways. Why isn’t the demand for covered contraceptive care a special interest? Or for abortion? Or for sterilization? Are those really the sort of things that we, as a society, need to be directly tax dollars to, over the moral objections of a huge portion of our populace?

    (3) For that matter, you speak as if religious groups are part of a long litany of groups that are seeking specific exemptions from providing certain categories of healthcare coverage.  Who else is there?  Offhand, I can’t think of any employers that would have a strong interest in the contents of their employee plans for non-conscientious reasons.

    (4) As for the difference in percentage of GDP spent on healthcare between the US and UK, that’s very much apples to oranges. For example, prescription drug costs in America are the highest in the world.  That’s not a public v. private market thing.  Rather, drug companies overcharge here and undercharge globally, and we accept this arrangement so that we can keep keep medical innovation going, and stay at the forefront of medical technology.  And the UK’s medical savings have come with some serious costs.  One of the ways that the NHS keeps medical expenses low is by making sharp cuts to care, resulting in longer wait times and fewer medical options.

    I’m not saying the US system is perfect (it’s not), or that there’s nothing we can learn from the UK’s experience.  I’m just saying that imagining that we can borrow their system and produce the same results (while ignoring some massive differences) is as silly that we could mime their constitutional monarchical system and end up with the same results.

    (5) Having said all of this, I think that you’re right about one thing: if we leave universal healthcare in the hands of the State, we can expect repeated assaults on cherished religious liberties.  But this is probably not the lesson that President Obama wanted to teach us.



  5. I’m not opining on whether *anything* is or isn’t a violation of free exercise in an objective sense, only that the final interpreter of that clause is unlikely to find it an easy question. But I think sacramental wine is a much easier question b/c even when you reduce free exercise to, as Bishop Olmsted says, “mere freedom of worship, without guarantees of respect for freedom of conscience” communion wine would still be covered (and maybe peyote too), but not the HHS mandate stuff. Not that it *ought* to be so reduced, but many Justices are likely to do so as Smith demonstrates.

    And even if that *is* a special interest too, which I suppose it is, that is beside the point. The thing is that for the USA to get a health care system that is not riddled with all sorts of free rider problems and/or unfair allocation of health care, the government will have to choose some winners and losers. They will have to upset people as you admit in (5).

    But the UK (and many other places with a more reformed health care) beat the US on the most important statistics regarding health coverage, e.g. infant mortality *and* life expectancy. Plus health care is allocated on a bell curve of sickness and not (as it is here) on a bell curve of wealth. Isn’t that more fair? (Michael Walzer argues for this beautifully, drawing on Pascal, here )

    And to get that fairness we can’t go w/ purely market driven health care. And if we don’t go w/ purely market driven health care, the gov’t will have to make some health decisions for people. This is one of them. I’m not saying I agree with it, but we should at least understand it before reflexively acting like the gov’t just wants to bully Catholics, right?

  6. But isn’t this mandate more like a parent giving their child an allowance that he spends on drugs. She doesn’t want him to buy drugs, but he does. Is she implicated in his wrongdoing? I don’t see how the Church is implicated in the wrongdoing of its employees who use contraception merely by providing the means by which they purchase them, as it were.

  7. HocCogitat,

    Something completely fungible like money can be used on anything and everything – it’s not earmarked in any way, and once paid, it’s not the employer’s responsibility to worry about. But this isn’t that.

    To use your drugs analogy, this would be like D.A.R.E. hiring employees who were recreational drug users, who then used company accounts to buy drugs, and received a bill from the drug dealer. In that situation, for D.A.R.E. to continually pay for these charges, they would be both facilitating a moral evil, and undermining their very reason for existence. If (for some crazy reason) the government refused to allow them to stop footing the bills for these drugs, D.A.R.E. may have to close that branch, just to stay faithful to its own mission.

    When Secretary Sebelius says that the HHS mandate “strikes a balance between respecting religious freedom and increasing access to important preventive services,” I don’t believe her. Ignore the fact that the First Amendment doesn’t say to balance religious freedom with “increasing access to important preventive services.” There’s no evidence that they sought any sort of deliberate balance at all — they were as aggressively anti-religious freedom as they thought they could legally get away with.

    Two factors weigh in on my thinking here. First, the HHS Mandate is specific to religious institutions. It’s not as if they accidentally forced Catholics to violate their consciences. This was deliberate. Second, it was revealed that the HHS hadn’t even examined how many employees were impacted by this. Will this expand contraceptive and abortion coverage to a million employees? To any? HHS can’t say. They didn’t bother investigating.

    So on the question of whether or not this was to bully Catholics, I agree with Peggy Noonan:

    “There was no reason to pick this fight. It reflects political incompetence on a scale so great as to make Mitt Romney’s gaffes a little bitty thing.

    There was nothing for the president to gain, except, perhaps, the pleasure of making a great church bow to him.”

    I’ve yet to hear a single coherent argument as to how this will make anything better (unless you think the Church decreasing Her charities is a good thing). Does anybody really believe that the Church will go along with the Mandate if the Administration decides to push forward? It’s madness.

    If the Church has to close down outreach programs because She can’t morally comply with what the government is demanding, how does that help increase access to medical services of any sort?

    One final point. The healthcare debate is often framed as whether we want the underserved to be cared for by the State, or by nobody. That’s a false choice, since Christian charities (often with the assistance of public funds) provide a higher quality product for less than their public counterparts. It’s not a coincidence that so many hospitals have “Saint” in their name. They’re a critical part of our nation’s healthcare infrastructure. Ensuring that the legal conditions are such that they can do what they do to the maximum extent possible is one thing that everyone should be in favor of. It’s as far from a “special interest” as I can imagine. As far as I can tell, crushing them benefits nobody.

    So if this isn’t about spite or bullying, you tell me: how will the HHS Mandate actually improve anything?



  8. The DARE analogy doesn’t help me, I may be missing something.

    But say a parent bought her daughter “College bucks” that could be used on campus, e.g. in the cafeteria as well as in the clinic. Now, she told her daughter that she does not approve of her using them on Plan B pills, but that this is the most efficient way for her to give her an allowance for on campus sundry expenses. This is totally normal; I know people for whom this is a reality.

    Now, is the parent participating in an intrinsic moral evil?

  9. Your other points are sound. They are picking a fight for little reason, subconsciously probably. But, still, I think it is important to think critically about the response. Because these are the kinds of arguments that the administration is going to make. And if Catholics don’t have a good answer for them, they’re going to get beaten down as a backwards and silly institution with irrational beliefs. That doesn’t do anybody any good. So I think its important to consider the issue from Obama’s side as generously as possible.

  10. @HocCogitat, you question is about material cooperation with evil and formal cooperation with evil. A material case would be if the Church had to give their employees money to buy some type of insurance. They then can use that money to buy contraception or w/e. Like the girl in the college analogy. Imagine her mom now is told by the government she has to provide money to her daughter allocated specifically to pay for contraception, plan B, sterilizations, w/e. The Bishops don’t want to be put into the second position. I don’t really understand this distinction in moral theology very well, but it seems like the Bishops are implying that they will close down rather than comply which implies they think it would be formal cooperation in evil for the employers to do this. But regardless of the issue of material or formal cooperation, it’s just not necessary for the government to interfere here, so why would they.

  11. prescription drug costs in America are the highest in the world.

    This is because in Europe and Canada, the governments use the threat of forcible licensing to weasel out of paying for R&D. Because they want us all to die whenever we get a disease not currently treatable.

    In a sane world, people would vie to heap rewards on people who discovered new ways to treat the sick.

  12. So, HocCogitat, you want the American Catholic Church to break the Divine Law so that your Government can give American women more “rights” to kill their unborn babies and also thwart God’s Plan for procreation through sterilization?. Doesn’t God deserve respect and obedience in your Advanced Society? And you call that “breaking eggs”??????? Good people, we need to pray very hard if HocCogitat’s beliefs are held by the majority of Americans

  13. Largely lost in the fuming over some supposed moral dilemma is that THE HEALTH CARE LAW DOES NOT FORCE EMPLOYERS TO ACT CONTRARY TO THEIR BELIEFS–unless one supposes the employers’ religion forbids even payment of money to the government (all of us should enjoy such a religion). In keeping with the law, those with conscientious objections to providing their employees with qualifying health plans may decline to provide any health plans and pay an assessment instead or, alternatively, provide plans that do not qualify (e.g., without provisions they dislike) and pay lower assessments.

    No moral dilemma, no need for an exemption. That the employers must at least pay an assessment is hardly justification for an exemption. In other contexts, for instance, we have relieved conscientious objectors from required military service, requiring them instead to provide alternative service in noncombatant roles or useful civilian work. In any event, paying assessment does not pose a moral dilemma, but rather a garden-variety gripe common to most taxpayers–who don’t much like paying taxes and who object to this or that action of the government. Should each of us feel free to deduct from our taxes the portion that we figure would be spent on those actions (e.g., wars, health care, teaching evolution, subsidizing churches, whatever) each of us opposes? The hue and cry for an exemption is predicated on the false claim–or, more plainly, lie–that employers otherwise are forced to act contrary to their religions.

    Questions about the government requiring or prohibiting something that conflicts with someone’s faith are entirely real, but not new. The courts have confronted such issues and have generally ruled that under the Constitution the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning pollution, contracts, fraud, crimes, discrimination, employment, etc.) and can require everyone, including those who may object on religious grounds, to abide by them. Were it otherwise and people could opt out of this or that law with the excuse that their religion requires or allows it, the government and the rule of law could hardly operate.

  14. Doug,

    This isn’t the moral equivalent of paying taxes — instead, this is directly paying for things contrary to Catholic morality. The difference is between immediate and mediate material cooperation with evil. And we’re not “supposing” that this is against the religious practices of Catholics — Catholic institutions are actually saying, “We can’t morally comply with this.” So it’s not some vague hypothetical, like you’re pretending in your first paragraph.

    It’s true that, as you note, Catholic can practice their religion if they’re willing to pay substantial fines (in the case of an institution like Notre Dame, the estimate I heard yesterday was that the annual fine would be in the millions). But that’s not religious freedom, but something equivalent to Islamic dhimmitude, with the jizya tax.

    Finally, let me ask you the same question that I’ve asked everyone who’s tried to defend this: do you really believe that the Church will bend on this one? That She’ll just say, “False alarm, we’ll go along with it after all”? And if not, what possible good could come of this, even from a pro-abortion or pro-contraception perspective? We’re sacrificing religious freedom here, and getting apparently nothing in return.



  15. Joe,

    The assessments–as noted by Notre Dame–are about $2,000 per employee per year. That is far less than employers typically pay for each employee’s health plan. For that very reason, many employers are considering that option quite apart from any religious or political issues. The option is there for the taking.

  16. I doubt that is true. The employees would want to be compensated for having to get their own health care with after tax money. And when that compensation is added to the fine, it would likely be unsustainable.

  17. Last I heard, this was a “ALL EMPLOYERS OF A CERTAIN SIZE” with a narrow religious exception. That the HHS mandate applies to religious institutions only is a new one on me. Source?

    That said, assuming David and Goliath circularly assumes the outcome. For all we know, this is a Israel-into-Babylon moment.

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