Readers be forewarned: this is a very long blog post.

About a week ago in this space, I criticized Grant Gallicho for saying, at the dotCommonweal blog, that the Obama administration’s recent “accommodation” of religious nonprofits under its HHS contraception mandate ought to satisfy its critics. After all, wrote Gallicho , “No arrangement proposed by HHS [under the latest proposed version of its policy] would oblige a Catholic institution to fund contraception coverage.”

And if critics, including the Catholic bishops, fell back on a claim that the Church’s educational and charitable ministries would be facilitating contraception coverage even if they didn’t pay for it, Gallicho was ready for that too: “The facilitation argument doesn’t withstand scrutiny.” He argued that even if an employer dropped all health insurance coverage (and got away with that), its employees would still have to buy insurance as individuals with the wages they were paid—insurance that “would certainly include contraception coverage,” presumably because no coverage lacking it would be available to them—and so it really made no difference if the employer paid for it in the first place.

While I offered some criticism of Gallicho’s sloppy description of the categories of employers either “exempt” from the policy, or “accommodated” under it (both of which, he wrongly said, could “opt out” of coverage for their employees, when that is true only of the first category), my main purpose was to explain why Gallicho was wrong to say that the “accommodated” employers will not be arranging and paying for their employees’ contraception coverage. I had previously explained this at Public Discourse , and I went over it again here, saying:

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.


 A week later, Gallicho has now responded to me , with a useful tutorial on how insurance works. I beg the reader’s pardon for a long extract from Gallicho’s latest:

When a group like, say, EWTN pays monthly premiums to its insurance provider, the insurer does not take the money, deposit it in an account used only for the TV network’s premiums, and then pay EWTN employees’ medical bills out of that account. Rather, the insurer pools EWTN’s payments with those from other customers. So when an EWTN employee gets an X-ray, the money that pays the bill may or may not come from EWTN. It may come from a company whose insurance coverage includes abortion. The insurer’s risk assessment of its policyholders determines whose monies fill the pools. If the same insurer covers EWTN and NARAL, the two organization’s monies will be mingled. Indeed, it’s the pooling of premiums that provides the incentive for insurers to offer contraception at no cost to their customers . . . .


So, pace Franck, when it comes to determining who’s really funding contraception for employees of accommodated organizations, “the existing premiums, paid by the employer” will not “be the funding source.” It may be one of the funding sources. It may not. The point is, there’s really no way to know, because insurance companies are in the business of spreading risk.


Everything Gallicho says in this passage is true. But it proves my point rather than his. A week ago he was denying that employers in the category receiving an “accommodation” under the HHS mandate would be paying for (“funding,” in his word) the coverage their employees receive for contraception. Now he is affirming that they will be paying for it.

Follow the logic of his own description, and change “X-ray” in his example to “birth-control pills.” EWTN “pays monthly premiums to its insurance provider,” and the money goes into a common pool of funds for all employees in a multi-employer group of customers of that insurance provider. The provider is required by the arrangement to cover contraception costs for every customer’s employees, including EWTN. Then an EWTN employee gets birth-control pills, “free” under the plan. Who in his right mind would say that EWTN was not arranging and paying for the coverage?

When Gallicho writes that such an employer “may be one of the funding sources,” he gives the game away. He is one inch away from understanding the point he himself is trying to make, about the fungibility of money. All the employers paying premiums to one insurance provider are paying, in common , for the contraception coverage of all their employees. Another way to say it that is equally true is that each and every one of them is paying for contraception coverage, in a common “risk pool” (if that term applies accurately to a choice that has very little to do with risk), from which all their employees’ contraception is funded. All are paying; each is paying; if EWTN is one of the “all,” it is one of the “each.” It will be paying for contraception .

Gallicho may think he is still denying that the “accommodated” institutions will be funding the contraception coverage. But it is a curious kind of argument when one can only “deny” that someone is committing an act by affirming that everyone, including that someone , is committing it. That is the space Gallicho now occupies, and whether he knows it or not, he is now in agreement with me, and joins me in refuting the administration’s claim that “accommodated” institutions will not be paying for contraception coverage. Of course they will be, and they will also be contracting for it, when arranging their employees’ health care plans and choosing a provider.

It may indeed be very hard for employers to find insurance companies to do business with that don’t cover contraception for someone . If Employer A pays premiums into a common risk pool, but his employees get no contraception coverage, and Employer B pays premiums into the same pool and his employees do get the contraception coverage, then one can say that A’s premium payments, once submerged, cannot be said to be not paying for the contraception used by B’s employees. Likewise, if A’s employees get a more copious form of coverage for maternity care than B’s employees, then B cannot be said to be not paying for that too, if all claims are being paid out of common funds held by the insurer. Still, B is not responsible for what A’s employees get, and the reverse is true: A is not responsible for what B’s employees get.

But this is why it is vitally important that the government not dictate the provision of morally wrong forms of coverage to one’s employees. If I run “Carolina Catholic College” and sign a contract with Blue Cross, it may trouble me that Blue Cross is providing birth control pills to Duke employees, but in its contract with my college, it better not provide those pills to our employees. I am not culpable for the arrangement BC has with Duke. I am directing premiums to a common BC pool out of which funds pay for Duke employees’ birth control pills, but at least I have not created a triadic relationship in which BC, by virtue of its contract with us, provides those pills to Carolina Catholic employees.

The current HHS accommodation preserves exactly that triadic relationship, under a deception that the link is severed between employer’s actions and employees’ access to contraception. It is not severed. In addition to the moral problem of scandal, and damage to the witness of the institution, there is still real cooperation and agency in the transaction that brings about the access to contraception. I must still look at the situation, if I am one of these employers, and say “I am arranging and paying for my employees to have contraception in their health insurance coverage.” The “accommodation” does not change that.

If you doubt this, examine the HHS mandate with respect to employers like EWTN or Belmont Abbey College both before and after the new “accommodation” was formulated. Here is the situation before the “accommodation”:

1. The religiously affiliated nonprofit employer contracts with an insurance provider for group health insurance for its employees, for which it pays the premiums.


2. The employees’ health care, by virtue of this contract, includes coverage from this insurance provider, as “preventive care” for women, all FDA-approved prescription contraceptive drugs and devices, including abortifacient pharmaceuticals, as well as sterilization services.


3. The employer informs the employees of the terms of the coverage for which it is paying, including automatic contraception coverage. These terms are explained in materials prepared by the insurance provider that are provided to the employer and passed on by it to the employees.


Now examine the situation the Obama HHS has proposed to create for “accommodated” institutions:

1. The religiously affiliated nonprofit employer contracts with an insurance provider for group health insurance for its employees, for which it pays the premiums.


2. The employees’ health care, by virtue of this contract, includes coverage from this insurance provider, as “preventive care” for women, all FDA-approved prescription contraceptive drugs and devices, including abortifacient pharmaceuticals, as well as sterilization services.


3. The employer says nothing to the employees about their automatic health insurance coverage for contraception, and all materials given to the employer by the insurance provider omit mention of it. Instead, the insurance provider communicates directly with the employer’s female employees and dependents receiving the coverage, explaining the drugs, devices, and services covered and assuring them that it is “separate” coverage.


Nothing changes in any substantive way, in the transition from the case “before” to the case “after” the latest HHS proposal. Stages 1 and 2 in the scenarios above are identical. All that changes is the story that is told in stage 3 of the above descriptions. And, where that story is not an openly, knowingly uttered lie, it is at the least a culpable omission that amounts to a lie. Call it a deception, a prevarication, what you will. It is the willful retailing of a falsehood.

For Gallicho, this falsehood creates the “distance” between intention and action that rescues these “accommodated” employers from moral responsibility. But our moral norms cannot be so easily satisfied.

The funding issue is not the whole of it, or the heart of it.  The fact that one is still paying for the contraception coverage in both cases “before” and “after” the HHS accommodation is relevant chiefly inasmuch as it is a token or sign of the unchanged involvement of the employer in the provision of the morally wrong coverage.

But now that Gallicho agrees with me that the “accommodated” employers will in fact be paying for contraception coverage, he has one more misplaced argument to make, in the immediate sequel to the passage I quote above:

It would be like trying to determine whether any of Matthew Franck’s federal tax dollars ended up paying for an abortion for a rape victim. Once he’s paid taxes, that money is no longer his. It’s collected with other people’s money and dispensed by someone else. He’s not on the hook for what’s done with that money unless he’s willed something evil.


Gallicho’s conclusions are right about the morality of cooperation where taxing and public spending are concerned. But does he really mean to assimilate the business of contracting for insurance coverage—a free market transaction between employers and insurance providers—to the situation that obtains between taxpayers and the state? I know that many conservatives have observed that ObamaCare converts health insurance providers into public utilities. Gallicho would go further, seeing them as public agencies , or the moral equivalent thereof.

But consider Gallicho’s argument a little more carefully, for one might say he proves too much.

When we pay taxes, we do so as a civic duty , and we do so under coercion . If we are liable for taxes, we have a duty to pay them as members of the community. Because the state must be able to compel payment, we are subject to coercion if we don’t pay. But we share responsibility for the good or evil our government does, and we owe one another our best persuasive efforts, and the action of our votes, to see to it that the government does good and avoids evil.

The reason we are “not on the hook” individually for any evils on which our tax dollars are spent is not that the money is “no longer ours” when it is poured into the common treasury. The reason is that the state acts as the representative of all of us citizens in common (this is true in every state, and literally so in a democracy), and the evils (if any) that it commits are our collective (not individual) responsibility whether we pay any taxes or not .

Take the federal Hyde Amendment. This law forbids, with some exceptions, the spending of Medicaid funds on abortions. The law is not a salve for the consciences of that portion of the taxpaying public that objects to abortion. It is instead a federal policy predicated on the judgment that abortion is an evil for which the whole community should generally refrain from paying, even if it is an individual choice permitted under the law.

Come back now to the HHS mandate. If the policy of the government were to provide these contraceptive services to all women at public expense, we would all be individually “off the hook” as taxpayers. But the state—meaning all of us whom it represents, collectively —would be right back “on the hook,” and we could struggle democratically over whether this coverage is a good to be funded by taxpayers or an evil to remain unfunded by the federal budget.

That would be a fight in the open, at least. But the HHS mandate is something else again, entailing layer on layer of coercion, deception, and moral thuggery. In one category of employers, the “religious employers” are entitled to believe and to act on the conviction that contraception, abortifacients, and sterilization are evils to be avoided—not contracted for, not paid for, and not provided to their employees. In the second category, “religiously conscientious” nonprofits are entitled to believe that these are evils to be avoided, but they are not permitted to act on that conviction. They are encouraged rather to deceive themselves and their employees that they are avoiding these evils, when they are up to their necks in them. In the third category, of nonprofits with no religious identity and of for-profit businesses, the employers can believe what they like, but they are not invited to the table of self-deception. They must look their complicity with evil full in the face.

So the government’s new policy is to tell the first and third categories of employers the truth about their situation (even while violating the religious freedom of the third category). For the second category, the government’s policy is to lie to them, and to require their complicity in a lie, while also forcing them to do the very evil the lie is meant to cover up.

Some “accommodation.”

Remember, the Obama administration itself recognizes there is a genuine religious freedom claim here, overriding any “compelling interest” in the employer provision of contraception coverage, when it wholly exempts one class of employers. The existing exemption amounts to a recognition that the fullest expression of religiously conscientious opposition is fulfilled by the ability to purchase coverage that really does not include (and is not merely said not to include) contraception coverage for any of one’s employees. (Notice that in this corner of the market, there actually is such a thing as a policy with no contraception coverage. Where does government get the power to forbid others to purchase it?)

There is no good argument for not exempting every other party seeking an identical exemption on religious freedom grounds—those like Belmont Abbey College and those like Hobby Lobby. All, as I have previously argued , are identically situated where their religious freedom is concerned. Why does the Obama administration think it is within its power to parcel out full religious freedom in one place, less of it in a second, and none at all in a third? And why does it have any defenders among those who wish religious freedom well?

 

Articles by Matthew J. Franck

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