Around the Web

Here are some important law-and-religion news stories from around the web:

Religious Groups Still Oppose Health Care Law

In the “Generalissimo Francisco Franco Is Still Dead” category, the Wall Street Journal reports that religious groups suing the Administration over the ACA’s contraceptive mandate are continuing with their lawsuits, notwithstanding today’s Supreme Court decision upholding the constitutionality of the statute. No surprise there: today’s decision didn’t address the groups’ First Amendment claims.

Group Plans Nationwide Rallies for Religious Freedom Tomorrow

A group calling itself the “Stand Up Coalition” is planning a set of rallies across the nation tomorrow (March 23) to protest the HHS contraception mandate. The group’s website states that religious leaders and public figures will speak at the rallies, scheduled to start at noon local time, and predicts that thousands will participate. It’ll be interesting to see how this all plays out, and what sort of media attention the rallies get.

Administration Did Not Consult Justice Department on Revised Contraception Mandate

I’m sure some readers will think of this as inside baseball, but it’s actually rather revealing. In response to questioning from Orrin Hatch (R-Utah) at yesterday’s Senate Finance Committee hearing, HHS Secretary Kathleen Sibelius admitted that HHS had not sought a legal opinion from the Justice Department before issuing last week’s “compromise” mandate on employer contraceptives coverage. Here’s the exchange, as relayed by the Deseret News, a Utah paper:

“The President’s chief of staff and press secretary have claimed that this mandate is consistent with the First Amendment, and the final rule you issued last Friday states that it is consistent with the First Amendment and the Religious Freedom Restoration Act . . . . Let me just ask you again, did HHS conduct or request any analysis of the constitutional or statutory religious freedom issues?” Hatch asked Sebelius. . . .

“Well we certainly had our legal department look at a whole host of legal issues,” Sebelius said.

Sebelius also acknowledged that she had not contacted the Justice Department for an opinion, which would be a common practice when facing a delicate constitutional question.

Hatch asked her, “Did you ask the Justice Department?”

“I did not. No sir,” she replied.

As the report suggests, executive departments and agencies routinely request the advice of the Justice Department on proposed regulations that implicate serious constitutional and statutory questions. In fact, a specific office at Justice, the Office of Legal Counsel, handles such requests, often on an urgent, rush basis (I know, I used to work there). So it really is remarkable that HHS did not seek OLC’s views on legal questions of this magnitude. It suggests that the Administration does not take these questions seriously, an attitude that may come back to haunt it — after the November election, of course.


As my colleague Marc pointed out Friday, there are some pretty serious questions about the Administration’s new contraception-coverage mandate. I don’t mean that rhetorically. I mean it’s genuinely unclear what the answers are, even after a weekend in which Administration officials and liberal Catholic commentators like EJ Dionne went on the airwaves to claim that the President had resolved the controversy. Two questions, it seems to me, are crucial:

  • Are insurance companies really going to absorb the costs of employee contraceptives, sterilization, and abortifacients? Some commentators reason that because these services are cheaper for insurance companies than pregnancy care, the companies will be glad to foot the bill. Does that make sense? Have insurance companies made any representations about this? (As of this morning, there was nothing on the website of health insurers’ umbrella organization, “America’s Health Insurance Plans,” or AHIP). Why wouldn’t insurance companies find a way to pass the cost of these services on to the employers who purchase the insurance contracts?
  • What about religious institutions that self-insure? According to the Becket Fund, thousands of such institutions exist.

Until one knows the answer to these questions, it’s hard to see how this “compromise” changes anything in substance about the original mandate.

Parsing the Administration’s New Position in the HHS Controversy

The Administration says this in its announcement:

Under the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she [sic] works.  The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

And some of the bullet points say this:

o Religious organizations will not have to provide contraceptive coverage or refer their employees to organizations that provide contraception.

o Religious organizations will not be required to subsidize the cost of contraception.

o Contraception coverage will be offered to women by their employers’ insurance companies directly, with no role for religious employers who oppose contraception. 

o Insurance companies will be required to provide contraception coverage to these women free of charge.

Some thoughts after the jump.

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An Uncertain Development in the HHS Mandate

As Mark reports below, President Obama announced this afternoon that the Administration is reversing the decision to require religious employers to pay for health plans which cover contraceptives and abortifacients.  The insurers will instead be required to cover them for free.  [UPDATE: I have amended the title of this post and stricken out the material above because at this point, given the first question that I raise below, I am deeply uncertain exactly what this change means.  More soon.]  There remains the issue of what the religious institutions will be required to tell their employees about the availability of these products and services.

ADDENDUM: Some additional questions beyond the issue of what religious institutions will need to say to their employees about the availability of contraceptives through their insurer: (1) Won’t the insurer simply pass the cost of the products and services which it is being compelled provide onto the insureds, including the religious institutions?; (2) What happens when a religious institution is self-insured?; (3) Exactly who qualifies for exemption under the rule?

Contraceptives and the Complexities of American Catholicism

There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.

For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,

gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.

“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.

The Religious Freedom Restoration Act of 2012

You read the date right. In response to the new HHS regs requiring all employers, including most religiously-affiliated employers, to cover contraceptives in employee health plans, Senator Marco Rubio (R-FL) yesterday introduced a bill, “the Religious Freedom Restoration Act of 2012,” that would make the regs inoperative. The bill creates what it calls “conscience protections” that would exempt employers who oppose contraception “on the basis of religious belief.” Others have introduced similar legislation. The text of Senator Rubio’s bill is here.

Douthat on the New HHS Regulations

Ross Douthat has an interesting piece in the Times today about the Obama Administration’s decision to require religiously-affiliated universities and hospitals to cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, in employees’ health care plans. An exemption applies to religious institutions that primarily serve members of their own faith, rather than the public at large – parish churches, for example. Douthat takes the traditional libertarian line: even if one disagrees with religious objections to contraception, such that one would oppose government’s attempt to discourage their use, one might wish to allow private voluntary associations, like churches, to conduct themselves according to values that government does not share. Otherwise, by eliminating the state’s competition, one risks creating a despotic government that ultimately will trample on the liberties of the people. Douthat also points out the perverse incentives the proposed regs create. If a religiously-affiliated institution believes that conscience requires that it not cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, for its employees, the institution must limit its charitable work to co-religionists. Not exactly encouraging Good Samaritans.