On Friday the Department of Health and Human Services announced that it would capitulate to demands of Catholic and conservative Christian non-profit organizations that claimed that filling out a form would make them complicit in the provision of contraception.
The announcement was made despite the fact that the claim is still being litigated in suits filed by the Little Sisters of the Poor and Wheaton College and many legal experts had expressed skepticism that the courts would find that requiring someone to fill out a form, which after all is the raison d’être of the federal government, to qualify for the exemption to the contraception mandate was overly burdensome to their religious freedom.
In her dissent from the Supreme Court’s decision to temporarily exempt Wheaton College from filling out the form to notify its insurance administrator of its intent to opt-out of the contraception mandate, Justice Sonia Sotomayor wrote, “The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
Now the employers who object to the contraception mandate will need to send a letter stating their objections to the Department of Health and Human Services, which will then be responsible for figuring out who the non-profit’s insurer is and notifying it of its responsibility to arrange and pay for contraception coverage for female employees of the non-profit as guaranteed under the Affordable Care Act.
Not only does this cumbersome procedure have the makings of a bureaucratic nightmare, but most insurers are incorporated separately in each state in which they operate and often under slightly different names… and I doubt most have a dedicated office to contact when religious conservatives make their own decisions about women’s access to contraception. Plus, it sets the dangerous precedent that religious objections to government mandates are so precious that the objectors can’t even be required to fill out a form stating them.
In the short run it’s likely that the number of employers who seek to duck the contraceptive mandate will be small. But imagine a scenario where a larger number of employers seeks to escape a costly mandate, such as equal access to in vitro fertilization procedures for straight and gay couples, for supposedly religious reasons and hundreds flood HHS with generic opt-out letters that don’t identify a specific insurer. Or a future administration that is less dedicated to contraceptive access. It’s not hard to see how the lack of bureaucratic regularity could undermine access to contraception for women.
But the bigger question is why the Obama administration keeps on giving in to religious conservatives’ demands for exemptions that just keep escalating (click here to see the Becket Fund’s chart of all the revisions the adminstration has made to the mandate). Sure enough, while lawyer Paul Clement indicated during the Hobby Lobby oral arguments that the organization was satisfied with sending a form to HHS to opt-out of the mandate, within hours of the announcement of the new regulation it was denounced by the Becket Fund as insufficent. (The new accomodation was accompanied by the news that the non-profit exemption will be open to small, closely held for-profit employees as per the Hobby Lobby decision).
Predictably, it was also denounced by the U.S. Conference of Catholics Bishops. In a statement on its Facebook page, the USCCB said it was “disappointed” that the new regulation didn’t broaden the exemption to the mandate to simply allow any employer to opt out without any kind of mechanism to ensure continuity of coverage for female employees. The bishops also claimed, by some kind of reverse-bishop-logic, that the move to broaden the exemption for some for-profit employers “would effectively reduce, rather than expand, the scope of religious freedom.”
But by creating an exemption to the mandate in the first place, which basically set-up the Hobby Lobby decision, and now by concurring that filling out a form to qualify for it is a violation of religious freedom, the administration is one step away from giving the bishops the broad exemption for any and all employers that they wanted all along.
What the administration still doesn’t seem to get at this late date is that this isn’t about finding the right formulation that will satisfy religious conservatives. This is about, in the words of pioneering reproductive rights sociologist Kristin Luker, allowing conservative religious employers to make “a symbolic statement (promoting) the idea that women should properly be at home with their families, that motherhood is the most important job for women.”
Even the National Catholic Reporter’s Michael Sean Winters, who was one of the fiercest critics of the initial mandate with its limited exemption for strictly religious employers, writes that despite the fact that the bishops have largely won on this issue, they are unlikely to drop their insistence on a broad exemption anytime soon:
The bishops are no doubt being told by their staff that we are on a role [sic] in the courts, that this litigation will yield a ground-breaking court decision expanding religious liberty. …someone at the bishops’ conference needs to stand up and say that this whole issue has taken on greater significance than it ever should, it has dominated the public actions of the conference, and cast the bishops in the role of pugilistic litigators at a time when the Holy Father is successfully displaying a different, and I would argue more effective, model of evangelization. There are other issues the bishops might wish to attend to, such as climate change, or the on-going challenge of immigration, or creating greater solidarity with our Latin American brothers and sisters, or examining the ways our own U.S. economy creates a society of exclusion of the kind Pope Francis has denounced, or how they intend to monitor their own brother bishops who thumb their noses at the Dallas Charter for the protection of minors with impunity.
Winters says that the USCCB is in a “meltdown,” with seasoned staff abandoning ship in record numbers. It appears that even the bishops’ biggest loyalists can no longer stomach the dissonance between the church’s mission and the bishops’ obsession with the pelvic zone.
