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.

Articles by Matthew J. Franck

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