At the dotCommonweal blog, Grant Gallicho sorrowfully surveys the statement issued yesterday by Cardinal Timothy Dolan on behalf of the USCCB, which rightly characterized the latest version of “accommodation” on the contraception mandate of the Obama HHS as inadequate. Mr. Gallicho seems to be confused, however, about what the government actually announced a week ago. (The cardinal, by contrast, sees things quite clearly for what they are.)
Gallicho writes this, beginning by quoting Cardinal Dolan:
“The administration’s proposal maintains its inaccurate distinction among religious ministries. It appears to offer second-class status to our first-class institutions in Catholic health care, Catholic education, and Catholic Charities.” Yet Dolan fails to mention what replaced the four-part definition. The USCCB had called that definition “unprecedented” in federal law. So HHS lifted the revised definition from something with plenty of precedent: the federal tax code. According to the new rule, any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate. If the employer pays an insurance company for employee health coverage, it has to notify the insurer that it doesn’t want contraception included in the plan, and the insurer in turn automatically enrolls employees in a separate plan at no cost to them or to their employer. If the objecting employer is self-insured, it just has to inform its plan administrator, which will arrange for free contraception coverage for employees.
Any reader of Cardinal Dolan’s statement will see that he is perfectly aware of what Gallicho says he “fails to mention.” And it is Gallicho who seems to conflate the administration’s category of ”religious employers,” altogether exempt from the mandate, with the new second category it has proposed, called “eligible organizations,” which are not exempt but instead receive an “accommodation.”
Gallicho fails to understand that the new, tax code-derived definition of “religious employer” is perfectly irrelevant when it comes to the new second category, and insists, quite wrongly, that “any religiously affiliated employer that has nonprofit status simply has to self-certify with HHS in order to opt out of the contraception mandate.” Here he makes several mistakes at once. First, the tax code’s borrowed language does not apply to “any religiously affiliated employer that has nonprofit status,” but to a much tighter category of churches and their “integrated auxiliaries.” Second, the employers in the new second category who are nonprofits that “hold themselves out as religious” do not get to “opt out” at all, if by that is meant that their employees are not covered by the mandate; they get the new (essentially fake) “accommodation.”
Third, if it were true that there were just a single category rather than one, then even churches’ employees would be covered by the mandate, as Gallicho’s immediate sequel indicates. He writes that the employer “opting out” (as he misleadingly puts it) informs its insurer, who “in turn automatically enrolls employees in a separate plan at no cost to them or to their employer.” But that is not true of the wholly exempt religious employers in the first category, only of the employers in the new second category.
Having confounded the two categories together with misleading “opt out” language that accurately applies to only one of the categories, and having misdescribed what “opt out” means in such a way as to imply that the female employees of actually exempt employers will instead be covered, Gallicho then goes on to suggest that Cardinal Dolan has reasoned wrongly about the moral norm of culpable cooperation. But everything in Gallicho’s argument rests on the proposition that the newly “accommodated” employers will not have to pay for the contraceptive coverage. And that, as I explained yesterday at Public Discourse, is simply not so. When the Obama administration claims that employers will not “fund” the contraceptive coverage provided by insurers, it speaks falsely.
Perhaps the administration is as confused about the economic reality of insurance as Gallicho is, so I will not accuse it of a deliberate lie. But when it claims that the “free” contraceptive coverage can be afforded by the insurer because “cost-savings” will result from “improvements in women’s health and fewer childbirths,” the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and women’s health in general. The insurer is not being told to lower its premiums because of the cost-savings on procedures and ailments already covered; it is being told that it can put the cost-savings toward the expense of providing contraception. The existing premiums, paid by the employer, will be the funding source.
This also explains a matter Gallicho takes up but whose implications he does not understand–the problem of the self-insuring employer. The reason the administration has such trouble designing an “accommodation” here is that the costs of “free” contraception are considerable, and with the self-insurers the sleight of hand doesn’t work so easily.
Since the question of cooperation always hinges on an accurate representation of the facts in the case whose moral gravity we are considering, it is no wonder Gallicho goes so wrong on his “correction” of Cardinal Dolan’s moral reasoning. He has begun by misunderstanding multiple factual elements of the policy he is so interested in defending.
February 8th, 2013 | 1:41 pm
“Third, if it were true that there were just a single category rather than one, …”
Your philosophy leaves me behind here. Or is this just a typo? :-)
February 8th, 2013 | 2:02 pm
But when it claims that the “free” contraceptive coverage can be afforded by the insurer because “cost-savings” will result from “improvements in women’s health and fewer childbirths,” the administration is admitting that the contraception is already being paid for by the employer, if its policy covers childbirth and women’s health in general.
This is a very curious argument indeed. The implication here is that religious organizations who want nothing to do with providing contraception, when purchasing insurance coverage for their employees and explicitly stating coverage of contraception should be excluded, should nevertheless get a lower rate because a third party is going to provide coverage of contraception that will perhaps lower overall medical costs for the employees. So the religious organization which is adamantly opposed to contraception, and which, incidentally, may urge its employees not to use contraception, is supposed to get a price break because a third party is going to provide something the religious organization refused to provide and tells its employees they ought not to use.
February 8th, 2013 | 2:24 pm
The reason the administration has such trouble designing an “accommodation” here is that the costs of “free” contraception are considerable, and with the self-insurers the sleight of hand doesn’t work so easily.
If adding contraceptive coverage to an insurance plan that does not already have it does indeed lower the overall cost, or at least cause no change in cost, it is obvious why there is a difference for an insurer and a third-party administrator of a self-insured plan to be treated differently. The insurer will benefit from the cost savings (if any) but the third-party administrator will not. However, the self-insured organization which declines to provide contraceptive coverage will benefit financially from the contraceptive coverage provided by the third-party administrator. It will get whatever advantages there are of contraceptive coverage without paying a cent for it.
February 8th, 2013 | 3:24 pm
I don’t share Frank’s understanding of how insurance works.
Employers X and Y offer health insurance to their employees, but only X covers contraceptives. Which employer incurs higher health insurance costs?
Frank correctly observes that X will have to bear the cost of the contraceptives. But Frank overlooks the idea that Y may have to bear the cost of more unintended pregnancies. This oversight leads Frank to a variety of unfounded conclusions. I don’t mean that circumstances might not prove Frank correct eventually; I mean that we can’t disprove the Obama Administration’s theory in the abstract; we’ll need actual data.
So which costs more – providing contraceptives, or dealing with more unintended pregnancies? I can’t tell. Thus, I can’t prove that a policy of giving away free contraceptives wouldn’t pay for itself, or even save money.
What happens if X decides to opt out of providing contraceptives? X then saves money on contraceptives, but incurs added costs for managing more unwanted pregnancies. Now, if contraceptives are the same price or cheaper than unwanted pregnancies, X’s insurer may well have an incentive to subsidize the cost of contraception. In this case, the contraceptives would be paid for out of the money being saved by having fewer unwanted pregnancies – NOT by somehow taxing X.
Finally, what happens if X fires his insurance company and decides to self-insure? This creates a practical problem for the policy. If someone wants X’s employees to get the benefit of free contraception, someone will have to pay for it: society. Thus, society will bear the cost of the contraceptives; X will get the benefit of avoiding paying for the unwanted pregnancies avoided through the use of contraceptives; and X will have the privilege of railing against the evils of a policy that benefits him financially.
Curious, huh?
February 8th, 2013 | 4:06 pm
One of the serious flaws in Matthew J. Franck’s analysis is that he seems to think it is a simple matter to determine who pays for what when an organization buys insurance coverage for its employees.
Just as an individual who buys an insurance policy, an organization pays premiums. Neither the individual nor the organization is paying for the cost of his/her/its medical bills. The organization (like the individual) is paying a statistically determined cost, which may turn out to be either more or less than the bills the insurance company must pay. By selling a great many policies, the insurance company can determine with some reasonable level of risk that it will come out ahead, not on every policy, but on enough of them to make a profit overall. What complicates matters even more is reinsurance. Insurance companies hedge their bets sometimes by buying insurance to cover themselves should the bets they have made in selling insurance not work out in their favor.
So to make statements (like the one I discussed in my message of February 8th, 2013 | 2:02 pm above) about a single organization’s overall medical costs during a given year and whether the insurance company or the organization was the one who really paid for some particular set of those costs make very little sense. To quote a post by someone named M.Z. from some time ago another blog, “In the end, you aren’t going to get a satisfactory answer over whose dollar paid for what. It would be like going to Pepsi and asking them not to serve you Pepsi derived from Farmer X’s corn.”
February 8th, 2013 | 5:07 pm
Religious Liberty does not depend on whether an institution which is composed of individuals is for profit or not for profit, nor does the Government, which does not have the authority to shape the Faith and Mission of Religious Groups ( Hosanna-Tabor) have the authority to decide which individuals and religious groups are religious enough to be accommodated and which individuals and institutions are not religious enough.
February 8th, 2013 | 7:30 pm
nobody really,
But you are assuming, like other liberals defending the Obama administration’s policy, that people go through unwanted pregnancies because they cannot afford contraception. Where is the evidence for this? Nancy Pelosi tells us that 98% of Catholic women have used contraception. Doesn’t that strongly suggest that access to contraception is a non-issue?
The CDC actually took a look at this in 2009, surveying thousands of women who had unplanned pregnancies. They asked them why they had not used contraception at the time they conceived. The percentage of women who answered “lack of access?” Zero.
February 8th, 2013 | 7:57 pm
Amen! Government should not be in the business of denigrating anyone’s world view or status based on the content of the world view or status. Government should not discriminate among people based on viewpoint. The tax code should not discriminate. Building codes should not discriminate. A person’s right to use pyote should not discriminate.
February 8th, 2013 | 10:12 pm
It is a false claim that contraception reduces health expenses. Only in theory and clean models does contraception reduce pregnancies. However, when exposed to human trials, the statistics from Europe to North America to South America to Africa all point to that where “protection” exists there is a corresponding increase in sexual activity and the risk profile that reduces the proposed protections. And might I remind you that children are a cost for 18-3/4 years (or 26 under PPACA), but treatment for STDs lasts for the remainder of their lives.
February 9th, 2013 | 9:25 am
Since it is true that a person has the inherent right to purchase insurance that does not violate their religious or moral values, it is not unjust discrimination, nor is it gender discrimination to purchase Health Insurance from an Insurance Company that refuses to provide contraception coverage because that particular Insurance Company recognizes that that which is not Life-affirming and Life-sustaining, is not Good for the prosperity and the posterity of this Nation, or The World.
February 9th, 2013 | 9:39 am
Doesn’t this strongly suggest that moral opposition to contraception is a non-issue? *Joking! Joking!*
Yes, whether making contraceptives more avaiable will reduce unwanted pregnancies is a factual proposition. Evidence may show that it does not have the intended result. Or it may. I tried to make this point earlier when I said,
February 9th, 2013 | 10:32 am
It is a false claim that contraception reduces health expenses.
Charles,
Here’s a good piece from Factcheck.org on the issue. Here’s their conclusion:
The important point, however, is that it is insurance companies, not religious organizations, that need to worry. The insurance companies are required to bear the cost burden, if there is one.
For all those who are tempted to say, “Well, the insurance company would just pass along the cost of contraceptive coverage to the religious organization,” I would note that what we are dealing with are proposed regulations, and there is a 60-day period during which anyone can make objections, suggestions, and comments. If the objection is that the insurance companies can easily pass along to the religious organization the costs of providing contraceptive coverage, then the focus should be on implementing the regulations in such a way that the insurance companies clearly do bear the costs and do not pass them along.
I really doubt, thought, that all those who object to the proposed regulations on the grounds of religious liberty would be mollified if there were an absolute, airtight guarantee that no religious organization would bear one penny of the cost of contraceptive coverage.
February 9th, 2013 | 11:16 am
David, you’re merely using one false assumption (costs won’t pass through) to cover another (I don’t know if our increase in contraception will follow other trends in increasing health costs, but I don’t care as long as it meets my other political directives).
And, sorry, there is no wait and see clause in the Constitution. In fact, the current legal framework is clear that the government faces a significant task to assuage any conflicts with religious freedom. “It’s not final”, “I can’t say for certain”, “we’ll see” can’t be relied upon.
February 9th, 2013 | 12:22 pm
All persons have an unalienable Right to condone that which is Life-affirming and Life-sustaining and thus respects the inherent personal and relational Dignity of the Human Person, and this unalienable Right, because it is unalienable, remains an inherent Right, even if a person does not believe all persons have the inherent Right to be treated with Dignity and Respect, because, from The Beginning, our unalienable Rights are endowed to us from God, not Caesar.
February 9th, 2013 | 12:29 pm
What does it profit a man, if he must condone that which is not Life-affirming, and Life-sustaining, in order to purchase or provide Life Insurance for oneself or one’s family, or one’s employee, when there is no compelling reason to violate one’s Religious and Moral values when one desires to purchase Life Insurance, to begin with?
February 9th, 2013 | 2:29 pm
And, sorry, there is no wait and see clause in the Constitution. In fact, the current legal framework is clear that the government faces a significant task to assuage any conflicts with religious freedom.
Charles,
As I have said any number of times, if this version, or any future proposed version, of the “contraceptive mandate” is unconstitutional, it will be found so by the courts. Since there are already conflicting court rulings from lower courts, it appears almost certain the question will be decided by the Supreme Court. Don’t you trust the Supreme Court to make the right decision? Is there someone better qualified? Is the US Conference of Catholic Bishops a more reliable interpreter of the Constitution than the Supreme Court (with six Catholic members)?
For those who are convinced the Obama administration is trying to pull off something that is patently unconstitutional, what is it you are afraid of?
February 9th, 2013 | 2:30 pm
in order to purchase or provide Life Insurance for oneself or one’s family, or one’s employee,
Nancy,
There is no dispute over life insurance.
February 9th, 2013 | 3:34 pm
Nobody really,
Okay, but your four meaty paragraphs simply assumed that covering contraception would lead to a reduction in unwanted pregnancies. I have yet to see any evidence for this. It assumes that people who do not have contraception coverage cannot just walk into the nearest drug store and buy some out of pocket. Given that even Nancy Pelosi admits that no one seems to have any problem getting contraception (to say nothing of the CDC and the Alan Guttmacher Institute), that assumption seems to be entirely unfounded.
February 9th, 2013 | 6:52 pm
I’m afraid the Court will call a fee a tax to avoid fulfilling the enemy role cast for them by the president and his loyal press. I’m afraid the stewards of justice are lacking in courage to uphold our form of government and will submit to the liberal elitist populist revolution.
February 9th, 2013 | 8:48 pm
David, you are correct, I meant to say Health Insurance.
February 9th, 2013 | 8:56 pm
Charles, on what basis can the Government impose a tax on those persons who do not want to purchase Insurance from an Insurance Company that provides contraception coverage because it violates their Religious or moral values?
February 15th, 2013 | 6:45 pm
Grant Gallicho, it is important to note that the Government does not have the authority to demand that every Insurance Company must provide contraception because according to Hosanna-Tabor, the EEOC and Title VII does not apply unless there is unjust discrimination, thus that initial misunderstanding of the spirit of the Law, has led to the erroneous HHS contraception mandate.
February 15th, 2013 | 7:37 pm
Thus, with all due respect, your entire argument, based upon a false premise, would be in error.
February 17th, 2013 | 12:58 pm
[...] a week ago in this space, I criticized Grant Gallicho for saying, at the dotCommonweal blog, that the Obama administration’s recent [...]
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