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Final HHS Rules on Birth Control

June 28, 2013

(Updated 6/28/2013, 2:45 EDT)

Health and Human Services today released the new rules on the birth control mandate under the Affordable Care Act.  A good summary was provided by the New York Times:

Under the rule issued on Friday, the government said that certain “religious employers” — primarily houses of worship — may exclude contraceptive coverage from their health plans for employees and their dependents. In effect, they will be exempt from the federal requirement to provide contraceptive coverage.

The rule also lays out what the administration describes as an accommodation for other nonprofit religious and church-affiliated organizations that object to contraceptive coverage, like hospitals and institutions of higher education.

Under the rule, these organizations will not have to contract, arrange or pay for contraceptive coverage to which they object on religious grounds.

Instead, the administration said, such coverage will be “separately provided to women enrolled in their health plans at no cost.”

Under this arrangement, a nonprofit religious employer must notify its insurer that it objects to contraceptive coverage. The insurer must then notify people in the health plan that it will provide them with payments for contraceptive services as long as they remain in the health plan.

Many employers serve as their own insurers and hire outside companies to administer benefits and pay claims.

In such cases, the administration said, the “third-party administrator” must inform people in an employer-sponsored health plan that it is “providing or arranging separate no-cost payments for contraceptive services.”

Moreover, according to the Health Watch Blog at The Hill:

Insurance companies enlisted to provide contraception under these accommodations will receive a rebate from the federal government to offset the cost. 

Though I have not yet found a response from the USCCB, I imagine that a major sticking point is that no exemption has been created for private employers.
Thoughts, reactions, prognostications for the future?  We are now in the middle of the bishops’ second Fortnight for Freedom:  how should we understand this mandate in light of religious freedom concerns?
Wide open debate is welcome, but let’s keep it civil.  Citations and links for statements of fact (particularly obscure or older ones) will be appreciated.
UPDATE: (06/28/2013, 2:45 EDT)  The USCCB has issued a brief press release regarding the new mandate.  The following text is taken from an email sent out by the USCCB:

The U.S. Department of Health and Human Services’ 110-page ruling on its  health care mandate requires time for analysis, said Cardinal Timothy Dolan of New York, president of the U.S. Conference of Catholic Bishops. Cardinal Dolan also expressed gratitude  for the five-month extension on implementing the complex proposal.

            HHS issued the ruling June 28. The effective date of the rule had been set for August 1, 2013, but today’s decision moves the date to January 1, 2014 for some nonprofit entities.

            “We have received and started to review the 110-page final rule on the HHS mandate,” Cardinal Dolan said.

“We appreciate the extension of the effective date by five months, which is readily apparent in the rule,” he said. “The remainder of the rule is long and complex. It will require more careful analysis.  We will provide a fuller statement when that analysis is complete.”

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118 Comments
  1. TJHostek permalink
    June 28, 2013 12:47 pm

    The bishops have won completely. To try to push it further would be turning victory into defeat and reveal themselves as bigots against the black President and closet TPots. Hobby House has no right to oppose the mandate on religious or any other grounds.

    • June 28, 2013 2:28 pm

      Hobby Lobby is a private business run by an evangelical Christian family named Green. They are not in any way exempt from the contraceptive requirement under these rules. But from the tone of your comment, I suspect you think that is just too bad for the Greens and all other “bigots” and “closet TPots.” Obama sure brought us together, didn’t he?

      • David Cruz-Uribe, SFO permalink*
        June 28, 2013 2:33 pm

        To move this towards substantive issues: should private businesses be exempt? If I recall correctly, this question was asked and answered (in the negative) during the passage of the Civil Rights Act in the 1960’s. Admittedly, this was a different issue but still reflected a governmental imposition on business owners. If I recall correctly Ron Paul (or was it Rand Paul) got into trouble for suggesting that this imposition was a bad thing.

        • June 28, 2013 2:45 pm

          To blame the polarization on President Obama takes a great amount of ignorance, that is ignoring all the overwhelming evidence to to contrary–the lies of Fox, Limbaugh, the strategy of Mcconnel and Boener, the Koch brothers mud campaigns. It really is “too bad for the Greens.” Living in this country has given them extraordinary opportunity and so they should adhere to its laws.

        • Thales permalink
          June 28, 2013 6:15 pm

          t and David,
          Check out Thursday’s Hobby Lobby opinion, with the majority of the judges finding that the HHS mandate substantially burdens religious freedom.
          http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf

          David,
          To your question about private businesses being exempt, check out the opinion for a great discussion about the fact that private businesses can have religious freedom. Also, I think your example about racism doesn’t apply. Let’s suppose that a business has a religious belief that races are unequal. Under the current law that everyone is arguing about (RFRA), the government can impose a mandate on the business in violation of the business’s religious belief if that is the least restrictive means of advancing a compelling government interest. Obviously ending racism is a compelling government interest and stopping a business from unjustly discriminating on the basis of race is the least restrictive way to stop racism. But that’s different from the current case. Giving people free contraception in their health insurance is arguably not a compelling government interest, and there are plenty of other ways to further that interest without imposing the mandate (like the government giving out free contraception itself).

  2. kurt permalink
    June 28, 2013 1:41 pm

    At the beginning of this matter the bishops made a plea to Catholics who were in the Administration or who worked with Administration officials as high as the vice president and as low as me to help work out a compromise. Just as many of us got deep into it, they went silent and worked only with republicans. Various compromises were out there including this. Given those of us who were asked to help were shafted by the bishops, I have no idea if this is acceptable to them.

    • David Cruz-Uribe, SFO permalink*
      June 28, 2013 1:47 pm

      Kurt,

      could you outline what other possible compromises were afoot? That might be helpful in assessing the final result.

    • Thales permalink
      June 28, 2013 5:41 pm

      Kurt,
      I find it hard to believe that the bishops weren’t trying to reach out to the Administration, considering Cardinal Dolan’s numerous comments about reaching out to the Administration and considering that this is kind of big issue for the bishops… I mean, why wouldn’t the bishops reach out and make their views known to the Administration?

      • kurt permalink
        June 29, 2013 9:46 am

        Catholic Democrats who wanted to help the bishops and were directly asked by them or thier staff to help were then cut out of the conversation. This proposal, the diocese of honolulu compromise, having title x pay for it have long been floated. The bishops never put a counter offer on the table. All while they did have private meetings with the gop.

        • Thales permalink
          June 29, 2013 10:46 am

          kurt,
          You’re the only I’ve heard ever say this. Can you point me anywhere to where this is discussed?

        • Thales permalink
          June 29, 2013 10:46 am

          Sorry, typo: “You’re the only *one* I’ve ever heard say this.”

        • kurt permalink
          June 30, 2013 3:22 am

          I believe the hoholulu accomadtion was discussed on this blog

        • Thales permalink
          July 1, 2013 4:35 pm

          I’m not talking about discussed on this blog. I’m talking about a discussion, link, article, etc. that supports your contention that the bishops didn’t reach out the administration.

  3. June 28, 2013 5:44 pm

    If private businesses were exempt, that opens the window to chaos. Jehovah’s Witness employers might opt out of insurance covering blood transfusions. Christian Scientists might opt out of health insurance altogether. More problematically, anyone could argue rejecting anything on the grounds of conscience, just as a way of getting out of having to pay for coverage. In a pluralistic society, if you’re going to have a secular business, you’ve got to play by secular rules. It’s as simple as that.

    • Thales permalink
      June 28, 2013 10:18 pm

      turmarion,
      I’m really astonished by your comment. So if you want to have a business in secular society, you have to leave your religious convictions at the door? If a business is required to cover surgical abortions, in their insurance plan or is required to provide pornography to their employees, or any other morally offensive requirement is imposed on them by the government, then the business should just comply or shut down? The current law doesn’t work that way and I encourage you to read the Hobby Lobby case I link to above to see how the current law does work to protect religious beliefs, within reason.

      • Doc Fox permalink
        June 29, 2013 4:51 pm

        When the business is asked to provide ‘insurance’ under which the employee, if he or she chooses to do so, can go do something the business does not approve of, so be it. It’s no different from the salary or hourly pay. If the insurance says it will pay $50 for me to have a chance to get some visual stimulation, I don’t have a single bit of that until I go get it. And if I’m in that habit, I am already doing so before the insurance was hired.

        • Thales permalink
          June 30, 2013 9:40 am

          Doc Fox,
          Would it be different if the government said that employers have to pay for employees’ late-term abortions as an extra benefit of employment?

      • kurt permalink
        June 30, 2013 3:26 am

        The business is not required to comply. It is free to pay a tax of less than a third of the cost of an average insurance plan and not offer objectionable insurance. Or it could let it’s workers control the insurance collectively.

        • Thales permalink
          June 30, 2013 9:31 am

          Kurt, You realize in the case of Hobby Lobby, that means (1) a fine of $475 million/year or (2) drop the employees insurance and be fined $26 million/year?

    • Thales permalink
      June 29, 2013 3:37 am

      turmarion,

      I thought I should specifically address your Jehovah’s Witness and Christian Scientist objection directly, since I see it mentioned all the time and it is a huge red herring. First, it’s my understanding that a Jehovah’s Witness or a Christian Scientist employer *would not* have a religious objection to providing insurance coverage. In other words, though the Jehovah’s Witness or Christian Scientist employer might personally forego a certain medical treatment based on their religious beliefs, they don’t believe that other people using that treatment are acting immorally and they don’t believe that it is immoral for them as employers to provide or facilitate access to that treatment by other people.

      Second, suppose that there really existed an employer of religion X who had a religious objection to providing insurance that covered blood transfusions. What then? Well, then we would do the analysis from the Hobby Lobby case: we would ask whether the government regulation substantially burdened the employer’s religious beliefs, we would consider the government’s interest behind the regulation and whether it was really important, and we would ask what ways the government’s interest could be furthered and whether there were more restrictive and less restrictive ways to accomplish that interest. (At first glance to me, I see a big difference in the importance of the government’s interest in making sure that people have access to blood transfusions vs. contraception, and I see a big difference in the necessity of having blood transfusions or contraception in employer-provided coverage in order to best further the government’s goal of facilitating access to these services.)

      That’s why your statement “More problematically, anyone could argue rejecting anything on the grounds of conscience, just as a way of getting out of having to pay for coverage.” is incorrect. As a society, we don’t have to reject every person’s assertion that a regulation infringes on his conscience or religion. It’s not an all-or-nothing situation. Honoring one claim of religious conscience doesn’t meant that we have to honor all claims of religious conscience. And so we don’t have to reject all claims of religious conscience. Instead, we can look at each assertion on a case-by-case basis, and make judgments about whether the assertion is legitimate, whether the government regulation is reasonable, whether the government interest goes too far, how important or necessary the government interest is, whether the government objective can better be accomplished in another way that doesn’t violate an individual’s conscience, etc. In other words, we can be thoughtful in analyzing whether a particular religious belief should be accommodated or not in our pluralistic society.

      • June 29, 2013 1:10 pm

        I do notice in the ruling that it says, “The Greens present no objection to providing coverage for the sixteen remaining contraceptive methods. In other words, the Greens are willing to
        cover, without cost-sharing, the majority of FDA-approved contraceptive methods, from the original birth control pill to surgical sterilization.” Thus, the issue there is not about contraception per se, but forms that are thought to be abortifacient.

        The idea of corporate personhood is enshrined in Constitutional jurisprudence, and the decision is right to point that out. I happen to think this is a bug, and a major problem in such decisions as the odious Citizens United case. Thus, while the decision is right by the books, I think the books are wrong, and I support amending the Constitution to end corporate personhood. Not because of the HHS ruling, but for other reasons.

        More to the point: I can’t see any way one can have a pluralistic society without anyone, anywhere, ever, under any conditions having at least some remote material cooperation with evil, even if only in the things their taxes support. There was a thread a few months ago about the Muslim barber that would serve only men. My take was that if that’s your attitude, and you’re living in a non-Muslim society, you either need to locate in a Muslim neighborhood, or post a sign explaining whom you’ll serve and why. To insist on hewing to a standard alien to the culture you’re in while at the same time insisting on living in that culture seems to me ridiculous beyond a certain point. It’s as if a Hasidic Jew moved to Podunk, Alabama and then complained that he couldn’t find kosher food in the stores and that all the jobs required him to work on the Shabbat, or as if an Amish griped that he had to use technology while living in Manhattan!

        First, it’s my understanding that a Jehovah’s Witness or a Christian Scientist employer *would not* have a religious objection to providing insurance coverage. In other words, though the Jehovah’s Witness or Christian Scientist employer might personally forego a certain medical treatment based on their religious beliefs, they don’t believe that other people using that treatment are acting immorally and they don’t believe that it is immoral for them as employers to provide or facilitate access to that treatment by other people. (my emphasis)

        Maybe this is where we differ. I think the Jehovah’s Witness and Christian Science model, if you’re correct on this (and I’ll accept what you say) is the right one. If I’m just providing the insurance without necessarily approving it, and if the worker isn’t a member of my faith, then what’s the problem? It seems that the Hobby Lobby owners want to impose their perspective on employees, regardless of their faith. It is, in my view, remote material cooperation.

        Honoring one claim of religious conscience doesn’t meant that we have to honor all claims of religious conscience.

        Well, I’m a little less sanguine about the possibility of abuse on this score than you are. Somebody, somewhere is going to try to justify something fishy, and end up winning, if we allow that. Look, there’s a recent reverse case of an atheist applying for citizenship who was told that she could drop the clause of the Oath of Citizenship saying she vowed to “bear arms” in defense of the US (she’s a pacifist) only if she joined a church that was pacifist–because, you know, you can’t be a sincere pacifist if you’re an eevul atheist. She eventually won; but this leads me to believe that if someone joins–or founds–a church for the purposes of avoiding such-and-such in benefits, that by the same logic they might be upheld in the current climate. I don’t view that as an abstract threat.

        Really, though, this is an argument for a single-payer healthcare program unconnected to employers, In such a scenario, the problem doesn’t occur.

        • trellis smith permalink
          June 29, 2013 4:18 pm

          I agree Tumarion the nature of corporate personhood is confused especially with Citizen United and should be overturned. The meaning of juridical personhood was really warped. It is one thing if the Court makes it case in a vacuum obliviously uncaring of societal consequences as in CU that equates voice with money( the more money, the more voice) and another in voiding the Voting Rights Act. Both decisions are hallmarks of a very activist court but the latter was clearly ruled as a matter of policy rather than constitutionality. In that the extension of the voting rights act was almost unanimous marks quite an over reach of the court here but CU is just bad law that causes more problems than it solves.

        • Thales permalink
          June 29, 2013 4:27 pm

          turmarion,

          -I can’t see any way one can have a pluralistic society without anyone, anywhere, ever, under any conditions having at least some remote material cooperation with evil, even if only in the things their taxes support.
          I agree. But at the same time, people should have freedom of religion, which means that sometimes, their religious beliefs should be accommodated even if a majority doesn’t share that particular belief.

          -re: the Jeh.Wit scenario. I could be wrong, but it is my understanding that their objection is akin to kosher or meat-on-Friday objections: Jews and Catholics don’t do it themselves, but they don’t think it is immoral if non-Jews or non-Catholics do it, and thus wouldn’t have a problem with serving meat to non-Catholics on a Friday. That is different from abortion/contraception is immoral in and of itself, and thus, cooperating with someone engaged in abortion. Again, I could be wrong. (And even if I’m wrong, it wouldn’t change my point that there is a procedure in our society and in our laws for determining whether there is a religious belief that should or should not be accommodated in some way.)

          Your point about remote material cooperation reminds me another nuance I want to share, but I’ll due that in a new comment below.

      • Jordan permalink
        June 29, 2013 5:51 pm

        turmarion [June 29, 2013 1:10 pm]: More to the point: I can’t see any way one can have a pluralistic society without anyone, anywhere, ever, under any conditions having at least some remote material cooperation with evil, even if only in the things their taxes support.

        Very true. This is why rabbit-hole arguments about the HHS mandate such as this one are truly not relevant.

        The Church has an interest in maintaining a moral society according to “natural law” (i.e. the moral philosophical-theological system first proposed in scholasticism). Consequently the closest “just society” per the Church in modern times was Francoist Spain (Opus Dei exists as an atavistic and anachronistic image of Francoism still nevertheless cherished by some). Franco maintained a society highly integrated with the natural law in concept. However, Francoist Spain required a subaltern brutality to create and perpetuate itself, thereby perpetuating evil for the promotion of a veneer of righteousness.

        The “religious freedom” ideology-movement of the American Church contains a definition of democracy which has performed more twists and jumps than an Olympic floor exercise competitor. It is difficult to understand why any person could believe that postmodern democracy can remain plural, selectively secular, rule-of-law, and still fulfill every facet of a reified natural law society. Circle, greet square.

        • Thales permalink
          June 30, 2013 9:20 am

          Jordan,
          What are you saying? That a secular tyranny with no correspondence to the natural law is the only possibility?

        • Thales permalink
          June 30, 2013 9:25 am

          Jordan,
          Sorry, I should be more direct in my point. It is difficult to understand why any person could believe that postmodern democracy can remain plural, selectively secular, rule-of-law, and still fulfill every facet of a reified natural law society.….. is just a straw man argument. No one is expecting this. The argument against the HHS mandate is not coming from this point of view. Instead, the point is that in our pluralistic society, *some* religious accommodations can and should be made if they are reasonable, not too burdensome on the rest of society, etc., because that is what a free and just society should recognized (even if it is post-modern and secular). Those arguing against the HHS mandate think that this is one of those reasonable accommodations.

  4. Thales permalink
    June 28, 2013 5:49 pm

    I haven’t looked at the final rule yet, but is the final rule any different from the February 2013 “compromise” rule? If not, then there are still going to be religious freedom problems with it.

  5. Doc Fox permalink
    June 28, 2013 6:04 pm

    “Other employers” might opt out not by reason of any moral objection, but merely claim one in order to save a buck or two. That risk is one which makes definition of an exemption for individual owners a nightmare.

  6. Anne permalink
    June 28, 2013 8:21 pm

    The President’s were the only compromise proposals ever made public. That’s the thing, while the bishops complained loudly about Obama’s attempt at accomodation, they never offered one of their own, at least publicly. It was always “our way or the highway.” This one gives them everything they originally asked for; unfortunately, as time went on, they upped the anty demanding every employer in America who might ask for an exemption (claiming conscientious objection, of course) be given one. Surely they knew that could never fly.

    • Thales permalink
      June 28, 2013 10:22 pm

      his one gives them everything they originally asked for;

      First, I don’t understand this statement, since to my knowledge, the bishops were never okay with or asking for the “compromise” that the White House came up with. Second, you’re misunderstanding how the current religious freedom law works. Currently the law seeks to protect against burdens on religion, and requires the government to show that if it wants to burden religion, that it is is for a compelling interest and is done in the least restrictive means. See the Hobby Lobby case I link to above.

  7. Floridian permalink
    June 28, 2013 11:12 pm

    If the government wants all women to have contraception, the government should just give all women contraception.

    The problem still seems to be that it becomes available to women only THROUGH the fact of having an employer-granted insurance program ALREADY. So it is still like the employer “enables” it.

    If there is really some “right” to contraception, it shouldn’t only be for women who are employed. If the government wants all women to have it, the government should make it available to all women. NOT tie it to their employment or employer-based insurance in any way!

    • David Cruz-Uribe, SFO permalink*
      June 29, 2013 8:23 am

      Not exactly: the government wants to insure that all people have a minimum level of health insurance. It has decided that to do this it will work with the existing system of employer sponsored health care. Other people will be covered by private insurance they are required to buy and/or medicare. In all cases the government has determined that the insurance plans must offer certain kinds of contraception.

      What you are suggesting is that the government go to the single-payer model just for contraceptive services.

      • Floridian permalink
        June 29, 2013 12:58 pm

        Well, not even necessarily. If people not covered by employer-sponsored health-care are required to by private insurance or be covered by medicare, then contraception should work this same way for employers with a religious objection: cover just the contraception portion through medicare, or else have the employees themselves buy totally separate riders for contraception from either the same or a different insurance company. The point is: don’t bootstrap it in any way to the employer’s healthcare plan.

        Of course, such an arrangement is what the administration refuses to do. Because a lot of people, then, might not choose to buy such an independent contraception rider (if it isn’t “imposed” on them “for free”) and there is little argument for FORCING individuals to buy such coverage specifically if they already have basic medical insurance otherwise.

        • kurt permalink
          June 30, 2013 3:30 am

          Floridan , what you propose come close to one of the accomodations we could never get the bishops to respond to.

        • Floridian permalink
          June 30, 2013 9:52 am

          How, kurt?

          Paying for it with Medicare?

          Because otherwise I can’t imagine what you mean.

          People buying totally separate policies for contraception alone is already possible today, and yet surely the administration shouldn’t force people to buy them specifically.

          On the other hand, if insurance companies are supposed to be offering “free” contraception, then that offer should just be to ALL women, not just those who ALREADY have an employer-sponsored plan, independent of that, because otherwise that plan is still the “gateway” to receiving it.

          The religious freedom question here is huge. Yes compromises must be made in a free society, but in this case the only compelling interest of the State is a question of financial inconvenience. Even if the State does believe it has a compelling interest in contraception being freely available to all women, there are ways to do this totally independent of employer plans. The fact that they’re insisting on a “delivery method” which is dependent on employer plans (even though other ways are imaginable) just because it is convenient…shows a disturbing dismissiveness about how religious liberty is prioritized.

          And it’s not just contraception. Turmarion uses blood transfusions as an example, but for a self-insured group that opposes those, that coverage should likewise come some other way, independent of the plan, like free supplemental riders offered by the government or by other insurance companies, paid for by the pool of all the people who don’t object to having it in a policy.

          There are ways to do it to provide the employees of those who object with coverage, should they not share the objection, totally independent of the employers plan.

          Insisting on still making the employers plan the gateway merely out of financial convenience, when there are other ways…is mind boggling.

      • kurt permalink
        June 30, 2013 4:17 pm

        Flotidian ,

        Medicare or title x, what’s the difference?

  8. David Cruz-Uribe, SFO permalink*
    June 29, 2013 8:20 am

    Thank you Thales for the link to the Hobby Lobby decision. I just finished reading it and I recommend that others do as well. However, do not limit yourself to the majority opinion: though somewhat caustic, I think that the Chief Judge Briscoe raises a number of very important points in her dissent, and these are issues which will have to be resolved at trial (and on appeal, no doubt).

    A central question is whether a corporation is a “person” under the Religious Freedom Restoration Act, and whether a corporation can be said to hold or exercise religious beliefs. In this case it is clear that the owners of the corporation as individuals do these things, but a corporation is a distinct legal entity and what can be imputed to one does not necessarily apply to the other. (See references to “piercing the corporate veil” in the decision.) The majority relies in part on the Citizens United decision which I find problematic on other grounds, and so I am concerned with having this logic extended other situations.

    Also, I think it is worth reading in both the majority and dissenting opinions the discussion of whether or not the plaintiffs face a “substantial burden”. Though not cast in the language of Catholic theology, the question is whether being required to pay for certain kinds of contraception is formal or material cooperation.

    One interesting argument that the majority made is that the law already grants numerous exemptions (for other reasons) to a large number of employers through grandfathered plans and the like. Therefore, the question arises as why an exemption in this case would be so terrible. The issue of the nature of the precedent that it would be set needs to be more fully explored for ramifications.

    Since this is a decision on a preliminary injunction I think the question of whether businesses have rights in this matter remains unsettled. It will be interesting to see how this plays out, and it is not clear to me what the right answer is.

    Finally, I would note a comment from a footnote, quoting an Amicus Curiae brief by Americans United for Separation of Church and State, which so badly mis-states Catholic teaching as to be funny (were the stakes not so important):

    “Catholic-owned corporations could deprive their employees of coverage for end-of-
    life hospice care and for medically necessary hysterectomies. “

    • Thales permalink
      June 29, 2013 9:03 am

      David,

      Yes, I think it’s good to read the opinion, because I’m struck by how many people in the blogosphere think that a person asserting religious or conscience exemptions is entirely incompatible with our society. (see turmarion above) Nothing could be further from the truth. Our society is founded on a respect for the person’s free speech, and free exercise of religion, and free conscience. A just society is one that recognizes these freedoms of a person and balances them with the freedoms of others. Thus, our law has in place procedures for considering whether a particular religious accommodation is reasonable or whether it is unreasonable. Our law and society doesn’t require that no religious accommodations whatsoever be ever recognized.

      Some thoughts re: corporations exercising religious beliefs.
      What about non-corporation institutions, such as non-profits or schools (such as Notre Dame who is currently suing for relief from the HHS mandate)? They are not individual persons, but can they exercise religious beliefs? If a school or a non-profit can, what makes these different from a group of individuals who want to run a for-profit business according to religious beliefs? (I don’t know the answers to these questions and haven’t thought them through yet. They’re just things that came to mind when I read your thoughtful comment.)

      • T J Hostek permalink
        June 29, 2013 11:08 am

        There is recognized a great difference between non-profit institutions and for profit. That is the reason non-profits are not taxed. They gain their status by proving that their reason d’etre is for the benefit of society at large and not their own pecuniary gain, eg education, hospital care. By making a concession to these institutions, the government is recognizing that their SERVICE is motivated by clear positive religious imperatives. Hobby House exists for the sole benefit of its proprietor. He is mandated to pay taxes. He is also mandated to provide health insurance to his employees. The INSURANCE COMPANIES are mandated to provide as part of that coverage contraception to those women who choose to use it. Nobody is being forced to violate their religious beliefs. It should also be considered that actions or inactions based upon religious beliefs have been held not to be absolute, eg parents have an obligation to seek medical care for their children, animals may not be tortured, girls may not be circumsized.

        • Thales permalink
          June 29, 2013 2:08 pm

          TJ,

          A few comments in response:

          -Sure, there is a difference between non-profit and for-profit institutions, but that doesn’t explain why the latter shouldn’t have religious freedom. The Hobby Lobby case has a nice hypothetical of a rabbi baking kosher matzo for sale: presumably he has religious protection from being forced to make non-kosher items even though he is in the business for profit as an individual, and why would this protection fall away as soon as he incorporated his business?

          -The INSURANCE COMPANIES are mandated to provide…
          You’re ingnoring self-insured entities. In those cases, there is no “insurance company” providing contraception coverage. Instead, it is the employer itself that provides its own insurance. (Hobby Lobby is an example of this.)

          -But let’s assume we’re talking about an employer that contracts with an insurance company to provide coverage. Sure, it is the insurance company providing coverage, but they’re providing coverage through an agreement from the employer, paid by the premiums made by the employer’s employees and by funding from the employer, etc. There is still some connection between the employer and the benefit of contraceptive insurance. And that is the crux of the debate: whether the connection is sufficiently attenuated and the objected-to-evil is sufficiently “not that bad”, such that the infringement on religious freedom is not unjust. Some people (including myself) think that the connection violates religious freedom. Consider if insurance coverage was extended to include partial-birth abortions, IVF, and euthanasia. Under the logic of your comment, there still wouldn’t be any violation of religious freedom because it would be the insurance company providing the coverage. I tend to think that most would disagree with you and would see some violation of religious freedom (after all, most people believe that it’s improper to have taxpayer-funded abortions even though there is an attenuated connection between taxpayers and abortions).

          -It should also be considered that actions or inactions based upon religious beliefs have been held not to be absolute
          That’s true. But it should also be considered that some government actions are obviously an unjust infringement on religious liberty, such as if the government required churches to celebrate same-sex marriages or be penalized, or required Catholic hospitals to do partial-birth abortions or be shut down, or required every blog viewed by the public to have a post saying “We support the war” or be fined. The key is to have a rational discussion about the middle ground: about what religious accommodations are reasonable and what are not.

        • David Cruz-Uribe, SFO permalink*
          June 29, 2013 2:42 pm

          Thale,

          one point about self-insured employers. As I understand it, the new HHS mandate deals with this question by saying that the adiministrator of the self-insured plan is to approach a third party insurance company to offer riders to the employees. These are funded by government rebates of some kind. So at least for religious institutions, your objection has been dealt with.

          Of course, this raises the question of why this cannot be done for everyone, including people in currently grandfathered plans. I suspect that the ultimate answer is that this would be viewed as the nose of the camel of single-payer insurance, and therefore a non-starter in DC, as many rational compromises are.

        • T J Hostek permalink
          June 29, 2013 2:50 pm

          I don not see anyone’s religious freedom being infringed upon. I suppose what is needed for those who think there is is a better understanding of how insurance works. I have to buy personal injury insurance for owning a car. That covers people injured by a drunk driver who has no insurance. I am not thereby endorsing drunk driving. Ok, now put insurance aside. I own a store and pay the woman who runs the cash register. She chooses to buy birth control. I am not buying the birth control. By providing health insurance that covers birthcontrol, Mr Hobbyhouse is not buying birthcontrol. It is an artificial issue.

        • David Cruz-Uribe, SFO permalink*
          June 29, 2013 3:48 pm

          One piece of case law which I was not familiar with but was brought up in the Hobby Lobby brief was the case of a Jehovahs’ witness who worked for a company that had a factory that shaped metal parts (some of which later were used in military applications) and a foundry that poured castings for tanks. When the worker was transferred from the factory to the foundry he protested that as a pacifist he should not be required to work on weapons. When he could not get transferred back, he quit and filed for unemployment, alleging that he was de facto fired because of his religious beliefs.

          The court pointed out that to outside observers his position may not be understandable, but (and this was the Court’s key point) this does not matter. What matters is if the individual believes his religious rights are being impinged. So the point in this case (as the majority held in the Hobby Lobby case) is not what the court thinks, but what the individuals involved think. (Of course, this circles back to the question of whether a corporation can have religious views, but that is a different problem.)

          I was very surprised to read this, as I thought the court would apply a so-called “reasonable person” test. But I guess the standards are different.

        • Thales permalink
          June 29, 2013 4:10 pm

          David,

          Interesting about the third-part insurance company and rider set-up. You’re right that it looks like it would put the self-insured into a similar situation as non-self-insureds. But I think the bishops and others would still object to the set-up, though it’s admittedly not as egregious a violation as it was before.

          Also, interesting about the Jehovah Witness story. I think it goes to the point that courts are reluctant to make theological determinations of what a religion says or doesn’t say, and thus are reluctant to get into a theological debate with a person about his beliefs. Instead, courts are going to act from the presumption that the person believes the particular religious belief he is claiming.

        • Thales permalink
          June 29, 2013 4:17 pm

          TJ,
          Honest question: would your opinion change if the insurance covered late-term abortions?

      • trellis smith permalink
        June 29, 2013 12:58 pm

        @Thales Excellent comment in raising the possibility of defining the free exercise clause too narrowly and the implications of not defining it as such. I wonder about this possibility as well. Moral agency comes into play as well.

        A distinguishing factor of the US democracy has not been solely the religious liberty of individuals but the institutional liberty of the churches. The mission of the church is not confined to the altar but extends into the educational and health services it provides to the public at large.
        . While they operate at a more secular level as non profits independant from their associated churches, they are not secular institutions divorced from the church. I really do wonder if they operate at a more exceptional level from government interference due to the free exercise clause. That is not to say they have limitless exemption from law but that the scrutiny level is greatly elevated. So whereas I as an individual can object without much effect to paying taxes for uses I deem immoral the churches have greater standing to more materially and constitutionally object because of a broader interpretation of the free exercise clause.
        So though the Catholic Church is imposing its moral theology on non believers in apparent contravention of public accommodation law it may be doing so constitutionally because its institutional outreach extends to its hospitals and universities as well as its churches and monasteries.
        Thus Notre Dame has greater standing then Exxon or Planned Parenthood to object from an issue regarding free exercise. The true conflict comes from the establishment clause. While it is true that RC ecclesiology admits RC hospitals and universities are as much the Catholic church as the parish church but to do so legally would then make government contracts a glaring violation of the establishment clause. In fact they are separate legal entities fashioned in such a way that permits these non profits to operate in the secular realm and as such they cannot manage their operations in a discriminatory manner against any taxpayer.
        RC ecclesiology further brings up the question as to who speaks for the Church because of the obvious disconnect if not outright schism between the moral positions of the Catholic laity and the bishops and the Pope. The teaching on birth control has not been accepted so it seems a bit tenuous for the bishops to base a constitutional argument upon a position with which its adherents do not concur. In fact in all aspects of the “cultural war” the bishops need to go outside the Church and ally themselves with the most conservative religious forces because the vast majority of its laity do not support them.

        In regard to corporate entities as David points out, corporate law limits liability and shields individuals from responsibility for better or worse. To what extent can one even attribute a conscience to such entities or attribute moral agency?

        Even if moral agency is true. in regard to health insurance benefits I hear what I believe a repeated error that it is the institutional employer that is providing contraception. Health care benefits are a form of remuneration, therefore the money that pays for insurance belongs as earned to the employee, not the institution.
        Furthermore the employer is the fiduciary. A fiduciary must act for the exclusive benefit of plan members. If a conflict of interest arises a fiduciary must legally step aside in favor of a third party free of conflict. This appears to be the basis of the compromise

        An individual has such moral agency and under the Constitution free exercise of religion but even then as you recognize freedom of religion cannot be absolute in a civil society; the issue is, where do you draw the lines? Religious anarchy is no better than secular ideological anarchy. Where every person or corporation or religion is a law unto itself.

        I

    • June 29, 2013 2:56 pm

      I tend to agree with David and Trellis here. The only things I’d add is that the difference between a non-profit or school such as Notre Dame, which is a religiously founded organization, and a secular, profit-making corporation, seems obvious. The other thing is that since the money goes to the insurance company, which uses it for contraception for the individual, without reference to the employer, the cooperation seems obviously material, not formal, and reasonably remote. For those who’d argue otherwise, how is it any more formal or proximate than the cooperation of a pacifist in the wars funded by his/her mandatory taxes? An argument against the HHS ruling is an argument against paying taxes; and I don’t see any reasoned argument differentiating them.

      • David Cruz-Uribe, SFO permalink*
        June 29, 2013 3:43 pm

        For what it is worth, radical pacifists in the Catholic Worker tradition regard paying taxes to the federal government as formal cooperation in evil. Many are tax resisters, or earn so little income as to pay no income tax. I have one friend whom circumstances required to take a job and has to pay income taxes; he told me that he confesses this sin on a regular basis.

      • Thales permalink
        June 29, 2013 4:40 pm

        turmarion,
        To add to what David said about pacifists, there is also a general notion believed by most that taxes shouldn’t be used to pay for abortion (presumably because that would be too close a connection to the taxpayer to abortion)
        Also, I get your point about the similarity about paying taxes which are used for immoral purposes, and paying the insurance company which are used for immoral purposes. I think, however, there are some distinctions (though it is certainly debatable about whether the distinctions make a moral difference or not): the chains of causation are longer and more removed in taxes that in the mandate; taxes are something that everyone must pay to the government as a duty of being a citizen, while the other isn’t but is more like one of several employment benefits offered by an employer to his employees.

  9. Thales permalink
    June 29, 2013 5:21 pm

    turmarion and David,

    Great discussions so far. This issue about what religious beliefs can or should be accommodated, and what beliefs cannot or should not, in a just and free society is a very complicated and nuanced topic on which reasonable people can disagree.

    To add another nuance to consider: the question whether religious freedom is being unjustly abridged is not completely coextensive with the question of whether there is morally permissible remote material cooperation with evil. Consider an extreme example: a nurse is forced to work an abortion suite of a hospital because there is a government regulation requiring all nurses to do so, and she has no other way to support her family for food. This is probably morally permissible material cooperation with evil so she can act in that way, but her conscience and religious rights are still being violated by the government in an unjust manner.

    My point is that when a Catholic school is faced with the choice to provide contraceptive coverage or pay the huge fines, it’s probably morally permissible remote material cooperation with evil to go along with the mandate. But that doesn’t mean that it isn’t a violation of the school’s freedom to *not* materially cooperate with evil if it shouldn’t have to, or a violation of the school’s ability to have a community environment that supports Catholic teaching or that makes a Catholic witness to to the broader culture. (I think this point is more clear if it was supposed that the mandate covered late-term partial-birth abortions: I could see that it probably would be morally permissible remote material cooperation with evil for the school to go along with abortion coverage instead of closing or paying huge fines, but I think it would be an unjust violation of the school’s religious freedom.)

  10. kurt permalink
    June 30, 2013 11:15 am

    I do think Hobby Lobby owes us an answer to the obvious question. Why instead of suing hhs over rhe contraception benefit are they not suing fda over the misclassification of the drugs which is the cause of their problems?

    • David Cruz-Uribe, SFO permalink*
      June 30, 2013 12:01 pm

      Kurt,

      this is discussed in the majority decision in the brief. It is acknowledged that there is disagreement about whether certain drugs are abortifacient, but the court noted universal agreement that IUDs act in this fashion. On the other hand, the dissenting opinions actually faulted Hobby Lobby for making a factual argument along these lines without providing the necessary supporting evidence.

    • Thales permalink
      June 30, 2013 12:28 pm

      kurt,
      Because the FDA is not the one imposing the mandate. It’s irrelevant if the HHS is getting their classification of the drugs from the FDA and if Hobby Lobby is ultimately disagreeing with the FDA’s drug classification. You’re required to sue the person/business/entity that you claim is hurting you.

      • kurt permalink
        June 30, 2013 4:12 pm

        Isn’t fda hurting them by falsely classifying these drugs as contraceptives? Even given an argument they could go either way would they not be doing a greater good by a broader lawsuit?

        • Thales permalink
          June 30, 2013 5:01 pm

          “Isn’t fda hurting them by falsely classifying these drugs as contraceptives?”
          No. It’s the HHS’s mandate that hurts them.
          “Even given an argument they could go either way would they not be doing a greater good by a broader lawsuit?”
          [shrug] I dunno. Seems to me the first thing the judge would do is dismiss the FDA from the case because they’re not the entity hurting Hobby Lobby, and so you would’ve just wasted every one’s time and money.

        • kurt permalink
          July 1, 2013 7:38 am

          If fda reversed its false classification hobby lobby would have the relief it wants AND society would be protected from this false labeling of a drug. Or is there no interest in the second?

        • Thales permalink
          July 1, 2013 4:37 pm

          Sure, I think there’s interest in the second. Personally, I don’t like the FDA’s definition of contraceptive to include abortifacient. But you can’t do that in this HHS mandate lawsuit.

        • kurt permalink
          July 6, 2013 4:00 pm

          Thales,
          No, you do it in a lawsuit against the fda, which if successful would solve thr the hhs issue and much more. But of course that would not fit with the partisan agenda some have. So the unborn take a backseat.

        • Thales permalink
          July 7, 2013 7:10 am

          kurt,
          You clearly have no idea about how lawsuits operate — you can’t sue the FDA because you don’t have any injury against them. Disagreeing with their interpretation is not an injury. It’s not something you can sue over.
          In addition to all that, you think the Catholic Church, Hobby Lobby, and those who who are making a big stink about Plan B and ella as abortifacients in actuality don’t really believe it because they are not going against the FDA, or because they’re driven by partisan motives? That’s nonsensical.

        • kurt permalink
          July 7, 2013 8:35 am

          Being a consumer would give a person standing to sue which means it wouls be damn easy to get standing. It is clear the agenda is to attack the current administration rather than to remove a baby killing drug from the market falsely sold as a contraceptive.

        • Thales permalink
          July 8, 2013 10:21 pm

          Being a consumer would give a person standing to sue which means it wouls be damn easy to get standing.
          No, it wouldn’t.

        • kurt permalink
          July 9, 2013 9:27 am

          Really? Steven Drucker was given standing in an fda lawsuit against genetic engineering of food based on the fact he eats. Public Citizen and other consumer groups have sued based on the claim they represent consumers of the product in question.

          Explaination?

        • Thales permalink
          July 12, 2013 8:54 pm

          kurt,
          Because “standing” means that you, as the plaintiff, are being injured in some way. I don’t know about Drucker’s lawsuit, but I presume he can claim that he’s being injured because he is inadvertently eating gen.-engineered foods and being hurt by that. HL is not being hurt by an FDA definition of ella as contraceptive.

  11. June 30, 2013 1:16 pm

    thales: My point is that when a Catholic school is faced with the choice to provide contraceptive coverage or pay the huge fines, it’s probably morally permissible remote material cooperation with evil to go along with the mandate. But that doesn’t mean that it isn’t a violation of the school’s freedom to *not* materially cooperate with evil if it shouldn’t have to…. (my emphasis)

    Well, the boldface part is exactly what I’ve been saying, so it appears we agree on it, at least in principle. The matter, then, is whether the mandate is a violation of religious freedom, if so, whether it’s an unjust violation thereof, and if that, then the extent of the injustice. You speak of the Church’s witness; but in my mind the chain of connection in the third-party insurance coverage of contraception is no more proximate than the chain connecting our taxes to immoral things. I think the pacifist tax resistors David spoke of are at least consistent. If use of taxes don’t infringe conscience and religious freedom, I don’t see how the third-party exemption does; but the Church isn’t suggesting that people be tax resistors.

    I certainly don’t see how this applies to owners of secular businesses. I certainly don’t see them resisting taxes even at the price of legal action!

    It’s worth pointing out that many of the Church’s financial dealings have a much more proximate connection to shady dealings and morally questionable things; so until the Church becomes more financially transparent and gets its own house in order, I’m not sure its spokesmen need to be bloviating about religious freedom in this case.

    • Thales permalink
      June 30, 2013 4:56 pm

      turmarion,

      First, I know you’re more thoughtful than the unfair jab you took in your last paragraph. I’m sure you know that the argument “People in the Church acted immorally and unjustly, therefore the Church has no standing to talk about morality and justice and we can ignore it!” is a baseless “squirrel!” argument. So let’s set that aside and get back to a thoughtful conversation.

      My point about bringing up the “morally permissible cooperation with evil” notion is that, assuming the HHS fine and penalty is big enough (and it’s pretty big already), then there is going to be quite bit of evil that a Catholic school could morally permissibly cooperate with (because the alternative is to simply shut down now or pay fines until it has to shut down due to finances) — but that analysis about moral cooperation with evil is irrelevant to the fact that the Catholic school would be suffering from egregious violations of its religious freedom. So when you say If use of taxes don’t infringe conscience and religious freedom, I don’t see how the third-party exemption does; but the Church isn’t suggesting that people be tax resistors., I’m not sure that I’m understanding you. Suppose taxes were being used for immoral means — it’s morally permissible for me to pay them and cooperate with the evil, but there still remains a (small) infringement on my religious freedom. These are distinct (but related) concepts.

      So let me end by asking you a question: Suppose late-term abortions were added to a Catholic school’s insurance coverage; in your mind, would that be problematic violation of a Catholic school’s religious freedom?

      • July 1, 2013 3:07 pm

        Perhaps my phraseology above was unfair, but I don’t think the point is completely unfair> If a parent tells a child “Don’t do X,” despite the fact that the parent regularly does X himself, and the child knows it–that is, if the parent says, “Do as I say, not as I do,” then while that does not logically invalidate the parent’s admonition, the child, as children will do, will tend to start disrespecting the parent’s authority. Likewise, no number of shady financial shenanigans, raiding priests’ retirement funds, investing in questionable assets, etc., on the part of the Church makes its argument about HHS ipso facto wrong. However, moral authority is not about logical syllogisms. If the Church is perceived as being hypocritical in finances that fairly directly cooperate with evil, how can the laity be expected to buy its arguments on health insurance and funding that cooperates indirectly with evil?

        It’s probably not possible to live in society without one’s religious commitments–one’s religious freedom, if you will–never being compromised at all, ever. It comes down to several factors–directness is one, coercion is another, and severity is a third.

        So consider late-term abortion, as you ask me to do. After Roe, the Church has spent the last forty years fighting mightily against abortion. It has supported pro-life political candidates, has thundered against abortion at all levels of the hierarchy, has taught about the culture of death, has fought tooth and nail in state and national legislatures, has mobilized laity and clerics to picket abortion clinics, and has done its best to witness to the world about the wrongness of abortion–and rightly so.

        After Griswold, which, less than a decade before Roe, prohibited the banning of contraception, the Church–well, it’s crickets. I certainly haven’t noticed pharmacies that sell the pill being picketed by priests and laity saying the Rosary lately….

        I think one can make a very strong argument based on its actual actions that the Church considers abortion in general–let alone late-term abortion–to be a far more serious and pressing issue than contraception. The infringement on an issue of conscience is greater the greater the importance of the issue is–for example kids pressuring a peer to tell a white lie is different from suborning perjury. Thus, the infringement by the state on religious freedom in regard to your hypothetical of late-term abortion is at a different level of severity and moral importance, as can be seen from the Church’s own actions, than contraception. Thus, I don’t think it contradictory to say that the infringement on religious freedom in the first case would be great and that it should be opposed, while in the latter case it’s relatively minor and should be tolerated.

        Does that make sense?

        • Thales permalink
          July 1, 2013 4:50 pm

          turmarion,
          If your only point is that the Church is more persuasive on moral issues if it acts morally itself, than I agree — that’s the whole lesson of the child abuse scandal. But your initial comment wasn’t an observation about the Church persuasiveness; it was a true ad hominem.

          Thus, I don’t think it contradictory to say that the infringement on religious freedom in the first case would be great and that it should be opposed, while in the latter case it’s relatively minor and should be tolerated.

          Yes, it makes sense, turmarion. That’s a thoughtful position to take (see, I knew you were thoughtful :) ), and I wish the people in support of the HHS mandate would take that position. However, it’s not the position of most people supporting the HHS mandate and it’s not the position of most people on this comment thread. It’s one thing to say “yes, there is a violation of religious freedom and, yes, there is an infringement on religious conscience, but it’s minor and can be tolerated in this specific case because of prudential considerations” (which is your position) and another thing entirely to say “there is no violation of religious freedom here and no infringement on a religious conscience whatsoever and the notion of having an exemption from the law on the basis of religious conscience should be done away with.” I’ll say more on this in a new post below.

    • trellis smith permalink
      June 30, 2013 6:36 pm

      I would agree with Tumarion here that the accommodation given here seems sufficient in addressing the free exercise clause as well as RFRA. to demand further would risk litigation of the establishment clause. And I believe the bishops’ reading of the establishment clause seems far too narrow as the scope they accord the free exercise clause seems too broad at least to my understandings. This could reignite old antagonisms against the Church where already it is being perceived as wanting to enshrine catholic dogma,(Cardinal Mahoney actually said as much) into constitutional law. I don’t see if this accommodation is expanded to objecting employers of conscience that it would be too problematic as a third party would have to be engaged. which is already an aspect of fiduciary law.

      As I have already stated that I have difficulty as Tumarion in seeing the moral agency of the Church, even before the accommodation. Employees may well legally use their wages to purchase contraceptives. By such reasoning a promise not to use contraceptives should be binding on them as condition of employment.

      • July 1, 2013 8:48 am

        I am in full agreement wth Trellis. I suppose it is what I have been trying to say up to now. I would only add that we are not discussing “Catholic schools” as is generally understood. We are talking about advanced higher educational institutions, colleges & universities which accept federal funding because they identify their purpose as not to promote religion but learning. If they find the accommodation onerous, they can avoid all penalties by refusing to accept federal subsidies and re-identify themselves as promoting religion. Seminaries, by this definition, are not required to accept the mandate.
        I would also revisit the Jehovah Witness example from the 1940’s. We live in a much more pluralistic society than at that time, especially where the diversity of religions is concerned, and individual conscience exceptions opens up a veritable Pandora’s box of unintended consequences. I doubt that decision would be upheld today.

        • Thales permalink
          July 1, 2013 4:53 pm

          TJ,

          If they find the accommodation onerous, they can avoid all penalties by refusing to accept federal subsidies and re-identify themselves as promoting religion.

          No, they couldn’t. First, the mandate is not dependent on whether an institution gets or does not get federal funding — that issue is irrelevant. Second, the purpose of a Catholic school is to promote learning, in light of Catholic teaching, just as the purpose of a Catholic hospital is to promote health, in light of Catholic teaching. For schools, theology is only one subject out of many (like math, history, geography, etc.) so a Catholic school couldn’t get away with saying that the school’s primary purpose is “the inculcation of religious values,” because it isn’t. That would never survive a legal challenge. Third, even if Catholic schools and hospitals lied about their primary purpose being “the inculcation of religious values”, it would not satisfy the other elements of primarily employing and primarily serving persons who share its religious tenets. In short, there is no way that a Catholic school or Catholic hospital could change itself in order to satisfy the current HHS exemption.

          (As an aside, your comment is inconsistent with your position. Why are you even in favor of seminaries and “organizations that promote religion” as having an exemption from the law? Shouldn’t they be required to cover contraception and abortions if that’s what the law requires, considering the “Pandora Box” you claim might happen?)

  12. kurt permalink
    June 30, 2013 4:08 pm

    Thales,

    How is that so? The tax is $2k a year per employee. Someone needs to explain the number you cite. It is clearly a savings to pay the tax.

    • Thales permalink
      June 30, 2013 5:04 pm

      kurt,
      Hobby Lobby has 13,000+ employees. Times $2k is $26 million. It’s in the opinion I linked to above.

      • Thales permalink
        June 30, 2013 5:07 pm

        The $26 million tax comes with Hobby Lobby dropping all health coverage (which I think would be frowned upon here on Vox Nova :) ). Without dropping coverage, the fine $100/day/employee which is $475 million fine/year.

        • kurt permalink
          July 1, 2013 7:32 am

          If hobby lobby has 13, 000 employees then yes, they pay a tax of $26 million and save maybe $130 million in health care costs.

          The $100/day claim is just a right wing lie. That is the highest possible fine if a company falsely claims on their taxes the have a compliant plan. Last I checked christianity doesn’t say you can lie on your taxes in order to deny people contraception.

        • David Cruz-Uribe, SFO permalink*
          July 1, 2013 1:34 pm

          The majority opinion took this figure of $100 per day person at face value, as did the dissenting opinion:

          “The most immediate consequence for Hobby Lobby and Mardel would come in the form of regulatory taxes: $100 per day for each “individual to whom such failure relates.” 26 U.S.C. § 4980D(b)(1).

          This appears to be the substance of the relevant statute: see http://www.law.cornell.edu/uscode/text/26/4980D

        • T J Hostek permalink
          July 1, 2013 2:57 pm

          Bravo, Kurt.

        • kurt permalink
          July 1, 2013 4:53 pm

          David yes they took it at face value that the corporation would make a false claim and therefore be subject to sanction.

        • Thales permalink
          July 1, 2013 4:56 pm

          kurt,
          You can’t seriously be advising Hobby Lobby to drop 13,000 people from health insurance in order to save a few dollars, are you? Isn’t that what evil corporations do? And I’d be careful before I started calling U.S. judges right-wing liars.

        • kurt permalink
          July 2, 2013 12:34 am

          Thales,

          Gee, we just heard from all the conservatives objecting to the individual mandate that going without insurance is s matter of freedom and simply an option some people would choose.

          Yet for me, hobby lobby workers will be able to get perfectly fine insurance on the exchange if their boss does not offer it.

          I didn’t call the judge a liar. Hobby lobby suggested they would lie and therefore pay a fine. The judge took them at their word.

        • Thales permalink
          July 2, 2013 7:34 pm

          kurt,

          Though they use the same word (“mandate”), the HHS mandate and the individual mandate are totally different things. The individual mandate refers to an individual not wanting to get health insurance, but being forced to purchase it. The HHS mandate refers to the employer being forced to offer insurance that covers contraception, etc. There is an obvious difference between 13,000 employees losing the insurance that they and their families are relying upon, and an individual deciding not get health insurance.

          And the $100 penalty happens if you aren’t in compliance with the regulations. There is no added necessity that you lie to the IRS.

        • kurt permalink
          July 3, 2013 9:49 am

          Thales,
          You are incorrect. So long as a business does not claim the special tax advantages of a compliant benefit, there is no fine.

        • David Cruz-Uribe, SFO permalink*
          July 3, 2013 11:04 am

          Kurt,

          this does not appear to agree with the USCode that I linked to above. How am I misreading it?

        • kurt permalink
          July 3, 2013 3:33 pm

          David,

          A group health plan means a qualified group health plan eligible for the tax advantages given to such plans. You want to offer a plan to a group without the tax advantages? No one does it but go ahead. It is not illegal.

        • David Cruz-Uribe, SFO permalink*
          July 3, 2013 4:15 pm

          I understand now. I think the presumption among most parties is that we are always discussing qualified group plans.

        • Thales permalink
          July 3, 2013 3:37 pm

          Kurt,

          So you’re saying that Hobby Lobby can continue with its status quo of no abortifacient insurance and there is no fine? That’s absurd. Every news article on the topic, every press release, every complaint made by the dozens of entities in lawsuits against the HHS mandate — all say that if the entities don’t comply with the mandate, they are subject to a fine. In fact, the only reason why everyone is able to sue in the first place is because they are going to be subject to a fine (because if there is no fine, then there is no injury, so why sue?). In addition, in those same lawsuits, as far as I’m aware, the government hasn’t made the argument you’re making in opposing the lawsuit.

          I’m certain that you’re off base on this.

        • kurt permalink
          July 3, 2013 3:48 pm

          Let me correct the above
          I said no one does that. While this may change with the recent court ruling, some companies have offered family benefits to gay couples. These are nonqualified and have all sorts of tax complications for the couple.

        • kurt permalink
          July 4, 2013 1:39 am

          Thales,
          When I googled $100 fine all I found were right wing sites. You are a sincere person but need to come out of the right wing echo chamber.

          Hobby lobby is not forced to offer a compliant health care plan. It can drop the plan and pay a fee far less than its current costs or offer selected health benefits without the tax advantages.

          You have seemed to move beyond a way for hl to not provide birth control to an obsessive need to ensure they are able to control their employees health care.

        • Thales permalink
          July 6, 2013 7:16 am

          Kurt,

          Maybe the right-wing sites say this because it’s true? If it’s not true, point to something that says it’s not true! Just don’t say so! I’ve seen nothing that says there wouldn’t be a fine, if they continued with their employee health plan but didn’t comply with the mandate (including the left wing sites!) And it’s more than the right-wing sites: Look at every complaint filed in the dozens of lawsuits across the country, and every one says that there will be a fine if they continue with their health plan but don’t comply with the mandate. And as far as it looks to me, the government agrees because they are not contesting this issue! Isn’t that so?

          I have no idea why you’re trying to fight this battle, Kurt. This isn’t a legitimate criticism!

  13. trellis smith permalink
    June 30, 2013 6:43 pm

    Another thought this may be an opportunity to overturn the RFRA.

  14. Jordan permalink
    June 30, 2013 7:55 pm

    re: Thales [June 30, 2013 9:25 am] [moved]: My fundamental premise is this: plural and secular postmodern democracies are not inherently constructed to consider dogmatism when crafting, ratifying, and implementing law. As you have written earlier,

    Instead, the point is that in our pluralistic society, *some* religious accommodations can and should be made if they are reasonable, not too burdensome on the rest of society, etc., because that is what a free and just society should recognized (even if it is post-modern and secular).

    I’m sure you’ve heard the cliched phrase “Marxism works well in communities of up to one hundred.” This statement is true not because of Marx, but rather because ideological purity can only be maintained in small settlements. A rapidly expanding polity will result in disagreements over ideological interpretation and implementation. This growth potentiates civil strife or desertion.

    I mentioned Francoist Spain as the best and perhaps closest approximation of a modern natural law and Catholic state. This state is also a textbook example of religious fascism. Superficially, Francisco Franco maintained a “seamless garment” of orthodox Catholic bioethics and sexual morality. But, as I have mentioned, brutality and inhumanity accompanied this ostensible dogmatic and doctrinal fidelity.

    For these reasons a nearly pure ideological society, whether based on natural law or another ideology, cannot form a viable, humane, and just state. [Post]modern representative democracy avoids extremes through a degree of legal elasticity. You are quite right, Thales, that a just society respects individual conscience and the free assembly of religion. Some societies, such as the French Fifth Republic, attempt to buffer the collision of religious conscience and the polity through laicite. Since the United States is pre-laic (but contains aspects of laicity), Americans have no fast legal prescriptions for the interface between religion, conscience, and the will of the polity through its representatives.

    The HHS quagmire is a result of legal elasticity reaching its point of greatest elastic tolerance. In the latest HHS revision, federal and state governments will reimburse insurance companies at least partially for the expense of paying for contraception directly. I need not rehash why this is troublesome for the Church. The alternative, however, is politically troublesome. If the federal and state governments were to directly issue contraception to women regardless of any contingency, perhaps the Church would be satisfied with the proximate level of cooperation. Even so, the Church then would be obliged to politically ally itself against interests who support federal funding of contraception. The theatre of war, but not the battle, has changed.

    Case by case evaluation of the freedom of conscience issues also contain a possible push-pull effect. The accumulation of individually-considered conscience lawsuits against HHS might well result in a tangled web of contradictions which might disable many conscience exemptions. Again, a solution is to mitigate cooperation through the relegation of sinful or offensive legislation to the taxpayer level. The result is the same: now aggrieved organizations must politically, and not legally, militate against immoral laws.

    The Church’s continued participation within the American republic will require a legal, if not political, compromise at some point. Legalized abortion has already created permanent trench warfare between the Church and the polity. The HHS mandate will not and cannot be solved at the legal level, as legal elasticity is exhausted. The only result is to dig another trench.

    The HHS mandate isn’t about “freedom”. A eternal ideological-political Somme, rather.

    • Thales permalink
      July 1, 2013 4:58 pm

      Jordan,

      Re: your fundamental premise that “plural and secular postmodern democracies are not inherently constructed to consider dogmatism when crafting, ratifying, and implementing law.” This premise is incoherent to me (maybe because I don’t understand the way you’re defining terms). When you craft, ratify, and implement law, you are by necessity engaging in “dogmatism” — because when you impose a law, you are imposing the dogma of the law itself. In the HHS mandate scenario, there is not just one party engaging in dogmatism (i.e., the Church with a dogma that contraception is immoral). The government is also engaging in dogmatism (with the dogma that contraception is such a necessary part of “women’s health” that employers should be mandated to include it in their employee health insurance plans).

      You then talk about Francoist Spain and say “For these reasons a nearly pure ideological society, whether based on natural law or another ideology, cannot form a viable, humane, and just state.” Okay, fair enough. But the question that comes to my mind is this: do you acknowledge that secularism can also form the basis for an ideological society that demands “dogmatic and doctrinal fidelity,” with accompanying “brutality and inhumanity”? Neither Francoist Spain nor a secular tyranny are desirable, and it seems to me that both can be guarded against if a government recognizes the freedoms of individuals to act in ways that the government doesn’t necessarily agree with, and if the government gives reasonable accommodations for these individuals acting in ways that the government doesn’t necessarily agree with.

      I don’t entirely follow your theory of “legal elasticity,” but it appears to me, that based on the logic of your position, that you would have no problem with: (1) Catholic schools being mandated to offer late-term abortion insurance coverage; (2) Catholic hospitals being mandated to permit the use of their facilities for late-term abortions; (3) Christian churches being required to celebrate same-sex weddings if they want to retain their tax-exempt status. It seems to me in all three cases, you would say that the institution doesn’t have a valid claim that its religious freedom was being violated. Am I correct in so thinking?

    • Jordan permalink
      July 2, 2013 9:54 am

      re: Thales [July 1, 2013 5:06 pm]: Thales, my VN posts aren’t intended to be a mandatum application. I assent to the Church’s teachings on sexual morality and abortion. I refuse, however, to countenance a “good guys versus bad guys” depiction of the HHS question. The Church has always been an active participant in American government.

      Thales [July 1, 2013 4:58 pm]: In the HHS mandate scenario, there is not just one party engaging in dogmatism (i.e., the Church with a dogma that contraception is immoral). The government is also engaging in dogmatism [...] [my ellipsis]

      Dogma is immutable. SCOTUS decisions are mutable towards justice: Plessy v. Ferguson was overturned by Brown v. Board of Education, for example. Would an overturn of Roe v. Wade, an act of justice, necessarily render the judiciary just? No — its decisions are always contingent and relative. No law is exempt from just or unjust interpretation.

      HHS might act unjustly or immorally according to the Church by imposing a contraception mandate, but nevertheless acts lawfully because the interpreters of the law consider the law and its application licit. HHS, or any government agency, always works within a relativistic system dissimilar to and divorced from the de fide beliefs of a religious body.

      Neither Francoist Spain nor a secular tyranny are desirable, and it seems to me that both can be guarded against if a government recognizes the freedoms of individuals to act in ways that the government doesn’t necessarily agree with, and if the government gives reasonable accommodations [...] [my ellipsis]

      I agree that a just state fundamentally respects religious assembly, conscience, and expression. The HHS mandate arguably violates all three. Even so, you and I are still American citizens. Even in tyranny, a citizen is a member of the polity. A condemnation of the “state” or “government” (as if each can be easily condensed and reified) may take two paths: civil disobedience or cooperation within the apparati of republic provided. The Church has taken the second route. Then, unjust aspects of secular tyranny must be endured until the Church, as an institution which contains citizens, is able to effect the justification of laws through legislation and judicial ruling.

      It seems to me in all three cases, you would say that the institution doesn’t have a valid claim that its religious freedom was being violated.

      All three claims are valid. Indeed, for Catholics all three are the basis of a just human society even before the establishment of governments. The decision for the ekklesia to work for change from within the republic requires both the courage to redress injustice, but also respect that the polity in which we live offers just rights as well. This, I think, is the significance of Jesus’ teaching on the penny and Caesar’s tribute.

      • Thales permalink
        July 2, 2013 7:38 pm

        Jordan,

        I think I was misunderstanding your use of the word “dogma.” I was using the term to simply mean “belief,” irrespective of whether the belief is mutable or immutable — I wasn’t commenting on mutability. Anyone advocating for or imposing law has a certain belief about how society should be ordered, and a particular law is concrete application of a particular belief about how society should be ordered in particular circumstances. The Church has a particular view about how a particular law should order society, and politician X has a particular view about how a particular law should order society, and government agency Y has a particular view about how a particular law should order society… and there’s nothing odd about each advocating for their own views on what particular law should be enacted. That’s all I was saying.

        HHS might act unjustly or immorally according to the Church by imposing a contraception mandate, but nevertheless acts lawfully because the interpreters of the law consider the law and its application licit. …. Then, unjust aspects of secular tyranny must be endured until the Church, as an institution which contains citizens, is able to effect the justification of laws through legislation and judicial ruling…. The decision for the ekklesia to work for change from within the republic requires both the courage to redress injustice, but also respect that the polity in which we live offers just rights as well.

        I basically agree with everything you’ve said (with one important exception I describe below). But I get the feeling that we disagree on the implications of what you’re saying (though maybe we don’t). Am I correct in thinking that your position is that “because the Church must endure unjust aspects of secular tyranny because they are lawful acts, then the Church should just submit to the mandate and not object to it”? I get the impression that you think the Church’s current actions in opposing the mandate are in conflict with the notion that the Church should just endure lawful acts that might be unjust. It that’s your position, then I disagree.

        First, (and here’s the important exception I mentioned earlier), the HHS mandate is arguably *not lawful*. Arguably, the mandate is unconstitutional (in violation of the First Amendment) and illegal (in violation of the current federal law, RFRA). In the face of an unlawful act, it’s certainly permissible to argue against it and to file a lawsuit to overturn it.

        Second, even assuming that the HHS mandate is lawful, from the Church’s perspective, it is unjust, as you’ve said. Now in the face of an unjust, yet lawful, law, I agree that there are two paths: civil disobedience or cooperation within the apparati of republic provided. But the second path doesn’t mean submitting to the law in silence. The second can mean submitting to the law or legal rule while doing any number of other acts permitted by our political system including (1) complaining loudly about the rule’s injustice, (2) petitioning the agency to change the rule, (3) advocating for the election of a different executive branch, such that the leadership at the agency is changed and the rule is rescinded, and (4) petitioning the legislative branch to pass a law repealing the agency’s legal rule, etc.

        So, if the Church thinks that the HHS mandate is unjust and hurts the common good, why shouldn’t it argue against it like it is currently doing?

      • Jordan permalink
        July 3, 2013 8:05 am

        Thales [July 2, 2013 7:38 pm]: Thales, I will attempt to concatenate your questions.

        Jesus Christ’s summary of the Law and Abraham Lincoln’s summary of the United States Constitution propose radically different prescriptions for human relationships. While Jesus proclaims that the Shema Yisroel is the basis of Christian conduct, he also proclaims “you shall love your neighbor as yourself” (c.f. Mt. 22:34-40 NRSV). The close of the Gettysburg Address proclaims, [...] “this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.” [my ellipsis].

        The phrase “love your neighbor as yourself” (Mt. 22:39) reads in Greek ἀγαπήσεις τὸν πλησίον σου ὡς σεαυτόν. The subjunctive command ἀγαπήσεις, agapēseis, derives from the same root as the noun ἀγάπη, agapē, the mystery of Christ’s love eternally poured out for all persons through his atonement. Christ’s compact is “you shall love” in the manner I will reveal to you in and through the paschal mystery. Lincoln’s compact is radically different. One might well argue that Lincoln’s God of the Constitution is a deist clockmaker who sets in motion an relative ethical state formed by the consensus of, by, and for the people. The God of the enlightement state owes no eternal atonement to his people. Rather, Lincoln’s God is merely oratorical metonymy for the legal and political arrangements which best shape an ethical order for the polis. Lincoln’s God can never give himself eternally in agapē. Indeed, the clockmaker only exists so long as polity exists and requires legislative and juridicial order. Jesus Christ’s superior compact extends both through the created and a-temporal orders.

        Thales, I greatly admire your tenacity for not just temporal justice but also an earnest desire to live the divine prescription “you shall love your neighbor as yourself”. The Church has every right to fight for morality because its Christlike mandate exceeds the mere ethical boundaries of state. However, the Church, both corporate and individual, has assented to cooperate within the lesser and flawed ethical compact of the Constitution. Therein lies the struggle of moulding a moral state from a mere ethical state: legal and political setbacks reveal the frustration of grafting the superior vine of divine love onto the inferior vine of a contingent ethical state.

        • Thales permalink
          July 3, 2013 3:39 pm

          Jordan,
          It’s a very interesting comment, but I find it non-responsive to my point that the Church *is* “cooperat[ing] within the lesser and flawed ethical compact of the Constitution” (your words), by its actions of filing lawsuits against the HHS mandate, speaking out against it, etc.

        • Jordan permalink
          July 3, 2013 4:56 pm

          Thales [July 3, 2013 3:39 pm]: Through my posts, I have attempted to illustrate that American Catholics and the American Church are members of the polity and therefore inherently political. Dissent through judicial and political actions is necessarily cooperation with the state and its organs. No citizen, clergy or lay, is at any time extrinsic to the republic.

          A final point remains. The political action of American Catholics and their Church against unjust legislation and judicial rulings cannot be parsed into discrete battles. The current battle between HHS and the Church, alongside the Church’s continuous opposition to Roe, cannot be easily disambiguated from the greater sweep of history. The HHS controversy is merely a point on the integral curve which is the historical interface of the American Church and the American republic. A suggestion that the justification of several unjust rulings advances the American republic towards Christian justice ignores what I have attempted to describe previously. God the Son and the American civic “God” are entirely different deities with entirely different and irreconcilable teloi.

  15. Thales permalink
    July 1, 2013 5:06 pm

    Okay, TJ, Jordan, trellis smith, and kurt (not you, turmarion — you pass, see our conversation above)…. This is it. The showdown! I’m calling you all out!

    It may be unfair to lump you all together (and my apologies if that is the case), but it seems to me that all of your posts are coming from the perspective that the government can impose any regulation that it sees fit on any aspect of society that is not an explicitly religious practice strictly defined (e.g., conducting religious ceremonies), and that an institution involved in this non-explicitly-religious practice that objects to the regulation has no basis for making a religious liberty argument or for claiming that its conscience is being violated… because the institution is acting in the secular sphere and the government can regulate the secular sphere all it wants. Instead, if the institution can’t handle the regulation (or can’t handle the penalty/fine that comes from not following the regulation) then it should just shut down.

    So, that means the government can require all hospitals to provide abortion services; or the government can require all schools to refrain from teaching that pre-marital and same-sex sexual acts are immoral, or even to refrain from teaching that God exists; or the government can require all soup kitchens to hand out condoms and morning-after pills to clients, and certainly, the government can require all of their employee-health-insurance-plans to cover surgical abortions…. and if the Catholic hospital, or Catholic school, or Catholic soup kitchen doesn’t like it, then they can just shut down and not be involved in non-religious activities that the government has the right to regulate as it sees fit.

    That’s really your position, isn’t it? If not, why not? What is the limiting principle in your positions that would protect against the scenarios I’ve just described?

    • T J Hostek permalink
      July 1, 2013 6:54 pm

      Your extrapolation is so utterly ridiculous as to be insulting. It would appear that you are not interested in reasonable distinctions, proportionality, or the good functioning of civil society. You have set your mind that the situation is as you say it is and you will not be moved by fact or reason or argument. You leap to the extreme, the all or nothing position that simply ends discussion.

      • Thales permalink
        July 1, 2013 9:56 pm

        TJ,
        Sadly, my scenarios are not ridiculous. For example, there are plenty of people who think that abortion should be covered by health insurance, or that Catholic hospitals should be required to provide abortion services.
        http://rhrealitycheck.org/article/2013/03/05/poll-african-americans-support-insurance-coverage-for-abortion-care/
        http://rhrealitycheck.org/article/2013/03/25/dont-take-her-to-catholic-hospital/

        With the HHS mandate, the natural next step for pro-choice advocates would be to include abortion coverage. I would be interested in hearing if you think that this would create a religious freedom issue for Catholic entities that are mandated to provide this insurance coverage.

      • Kimberley permalink
        July 1, 2013 10:14 pm

        TJ,

        Way to argue the facts. In other words you are telling us to trust the government because they have our best interests in providing contraception for free.

        • kurt permalink
          July 2, 2013 11:49 am

          Kimberley,

          Both the government and hobby lobby want to provide contraception for free. The disagreement is over about three pills that hobby lobby says cause an abortion and the government (predating Obama) say are contraceptives. Hobby lobby and its defenders raised no issue with their Catholic employees being denied religous freedom by being forced to pay for contraception.

        • Thales permalink
          July 2, 2013 7:25 pm

          Kurt,
          Though Hobby Lobby’s case specifically doesn’t take issue with the contraception part of the mandate, many of the cases percolating across the United States do.

        • kurt permalink
          July 3, 2013 9:43 am

          Thales,

          Yes but all we hear about is litigation over the religious freedom of bosses. Not a word or a lawsuit against bosses forcing workers to pay for contraception. Why the silence?

        • Thales permalink
          July 3, 2013 3:40 pm

          Kurt,
          I don’t understand your comment. Maybe because there are no such lawsuits, and maybe because that’s an entirely different scenario that doesn’t raise the same moral considerations.

        • kurt permalink
          July 4, 2013 1:46 am

          There are 200 litigants sueing on behalf of bosses who do not want to pay for birth control. There are no lawsuits on behalf of tens of millions of employees who must pay premiums for insurance their bosses decided will include birth control and abortion.

          It seems to one side, the unborn stop being important if it tilts any power away from bosses to workers.

    • kurt permalink
      July 2, 2013 12:45 am

      The government should not require abortion services because abortion is gravely wrong. Obamacare, while including contraception in the basic benefits package, excludes funding of abortion. Those who are prochoice will say this is a denial of their religious liberty. I don’t think their religious liberty claim trumps the social interest in protecting the unborn.

      • Thales permalink
        July 2, 2013 8:25 pm

        Interesting answer, kurt, (“The government should not require abortion services because abortion is gravely wrong.”), but it doesn’t answer the question. Supposing the government goes ahead anyway and imposes an abortion mandate (despite abortion being gravely wrong), what then? Do Catholic schools/hospitals who object to the mandate have a legitimate argument that their conscience is being violated or their religious freedom is being infringed upon?

        The right perspective to take on this whole topic (which I’m still surprised is so difficult for commentors here to grasp) is this:

        In a pluralistic society, there are going to be people with different views about what laws are appropriate for the common good. A just pluralistic society would (1) recognize that sometimes an individual or an entity is going to disagree with a policy or law or rule that is imposed on that individual or entity as a matter of conscience or religious belief, and (2) seek to accommodate that individual or entity’s conscience or religious beliefs within reason. “Within reason” means that the society would consider how important the particular religious belief or item of conscience is, how important is the government interest that is happens to be burdening the particular religious belief or item of conscience, how burdensome is the law on the individual, whether the government interest behind the law can be achieved by some other less burdensome manner, etc. — in general, whether an accommodation is reasonable under the circumstances. That’s how a just, fair, pluralistic society would function. It doesn’t promise a perfect world or perfect agreements between all involved, but it is at least the best way to attempt to respect the interests of all involved in some sort of compromise.

        As it so happens, here in the U.S., we have a system which approximates this. Believe it or not, embedded in the Constitution is the notion that government should not infringe on freedom of religion. In addition, we also have a current law enacted by Congress that gives additional acknowledgement and protection to religious beliefs (RFRA). The Constitution and RFRA doesn’t allow every individual to have a veto or an exemption on any law that might affect them—but they also aren’t nullities such that the government can go around imposing whatever law it wants because religious freedom is non-existent.

        So, what about the HHS mandate? If you think that that HHS mandate is fine and that the Catholic individual/entity shouldn’t be exempt from it, that’s okay, you can make that argument. But your argument in favor of the mandate can’t be on the grounds that it’s because there is no violation of religious freedom, or because the Catholic Church has no basis for claiming religious freedom, or because people shouldn’t be able to object to a law on the basis of religion, or because no one should be able to get an exemption from a law based on religion or conscience, or because all laws enacted by the government are lawful and shouldn’t be objected to. Those are bad arguments that ignore the current state of our legal system (considering the protections of the Constitution and RFRA) and they are bad arguments because they are consistent with a tyranny and not a just and fair pluralistic society. Instead, if you want to argue in favor of the HHS mandate, you have to do the weighing of factors (the strength of the government’s interest, the burden on religion, the possibility of less restrictive means, etc.), and argue that an accommodation for those who object would not be reasonable under the circumstances.

        • kurt permalink
          July 3, 2013 10:01 am

          I believe the new proposed basic benefits package is just with the allowances it makes for those who believe it is imposible for anyone to morally use contraception. The administration has gone farther than many state laws the church already compliea with.

  16. Floridian permalink
    July 2, 2013 11:39 pm

    I get the sense that some people’s position here is that the Church should just lie down and submit to the situation. There is no reason for this. If this is a democracy, then the Church can and should challenge the laws in court, and probably will win. There is no compelling interesting in forcing anyone to provide contraception. That implies a “right” to free contraception, but that hasn’t existed so far, so why should it suddenly exist? There is no good reason NOT to accommodate religious groups on their own terms except to assert a limit, to draw a line in the sand, regarding religious freedom.

    While I understand the plutocratic government authorities wanting to do this, I don’t understand why Catholics themselves would seem to secretly desire the triumph of the HHS mandate just to teach more conservative Catholics some alleged lesson about the compromises required in pluralism. This “compromise” ISN’T required. Pluralism could remain perfectly in place without putting this burden on religious institutions or business owners. Tax us all a bit more and have the government provide it, fine. I admit THAT compromise regarding taxes is required for pluralism (in a sense, because who knows “which dollar goes where?”) But requiring this form of it is just unnecessary. The Amish don’t even have to pay social security! Why should Catholic hospitals have to do this? Let employees who want contraception buy a separate rider.

    The point of the individual mandate is that we all use healthcare eventually, and that we can require emergency services without ever knowing it, without choosing it, just due to an accident, and thus we disrupt the market if we aren’t insured, are effectively moochers (since no one is denied emergency care even if they aren’t insured). But contraception is different. No one NEEDS contraception. No one enters the contraception market “by accident,” it’s not like people who don’t have free contraception will somehow mess up the balance of risks in the market if they aren’t insured.

  17. kurt permalink
    July 6, 2013 4:14 pm

    Thales,

    They can drop their health insurance and get out of the business of forcing some contraceptives on some people while denying other contraceptives to their employees.

    Or they can give up their generous tax advantages and continue with their current benefit package. Why does that violate their religious freedom?

    • Thales permalink
      July 7, 2013 7:13 am

      Because it’s onerous penalty that no one else has, only them, because they don’t want to do something that violates their religious freedom.

      kurt, your comment is in essence saying “but Hobby Lobby can just shut down if it doesn’t want to comply with the mandate. Why does that violate their religious freedom?”

      If you don’t see the flaw in this comment, then I can’t help you.

      • kurt permalink
        July 7, 2013 8:40 am

        They don’t need to shut down. They can do what tens of thousands of other successful businesses do and not offer insurance. It not only solves their moral dilemma but saves them money.

        • Thales permalink
          July 8, 2013 10:28 pm

          I’ll say again: you can’t seriously be advising Hobby Lobby to drop 13,000 people from health insurance, when these employees and all members of their families need and rely upon this insurance and dropping them would be grossly unjust. And have you conceded that there is no right-wing lie and Hobby Lobby would be subject to a fine if it tried to keep the insurance but not comply with the mandate?

        • kurt permalink
          July 9, 2013 9:09 am

          Thales,
          I am serious. Our conservative friends have constantly told us there is no moral obligation for bosses to provide insurance. Now that employees can get quality insurance on the exchange, I can endorse that. It will be insurance they control not their boss.

          And the fine issue is right wing balderdash. Let them go outside the heavily tax favored compliant employer sponsored group health plan program and just accept the tax consequences. However that could be more costly than the maximum fine.

          However, Christians should not lie as they have indicated.

        • Thales permalink
          July 9, 2013 7:55 pm

          I have no idea who you’re talking about when you say “conservative friends.” And the Hobby Lobby situation is not simply “not providing insurance” — it’s dropping people who have relied on the insurance, and I’ve heard no conservatives claim that that is just. And you’re disregarding the multi-million dollar fine HL has to pay per year if it decides to drop insurance. And you haven’t pointed to any actual lie, while the “lie” you first pointed to, turned out not to be a lie. So I’m done arguing with you, as it appears that you’re not arguing in good faith.

        • Kurt permalink
          July 12, 2013 12:37 am

          I have no idea who you’re talking about when you say “conservative friends.”

          I m talking about the tens of millions of my fellow Americans that don’t believe there is an employer obligation to provide health insurance. This is the position of the Republican Party and the Chamber of commerce and enough more that it is too broad of a viewpoint to dismiss. I may not agree with them but they are my friends. Even among my fellow liberals, the position we have taken is that there is no obligation to provide health insurance among the majority of employers who are small and only a modest fine/tax for larger employers.

          And the Hobby Lobby situation is not simply “not providing insurance” — it’s dropping people who have relied on the insurance, and I’ve heard no conservatives claim that that is just.

          Bosses drop insurance every day without a peep from conservatives, dropping it when there is no other option for the workers. And even more often they force workers to change plans. I can find no public record of a single conservative objecting to this. It is the later that HL workers would have to do. Switch from a plan controlled by their boss to one they control from the Exchange.

          And you’re disregarding the multi-million dollar fine HL has to pay per year if it decides to drop insurance.

          A fine that is maybe a quarter of what they save in insurance costs. I hope they would give some of the savings to their employees.

          And you haven’t pointed to any actual lie

          The non compliance fines are to companies that have submitted signed documents to the government stating they intend to comply. Given compliance can be complicated, the government has the option of applying fines for those slow to bring themselves into compliance. The highest fines rarely occur, only after years of foot dragging for companies intending to comply.

          For those who simply provide non compliant insurance, that is not illegal nor fined. It however does not qualify for the very generous tax advantages the government gives for compliant plans. Therefore this is rarely done? Mostly for gay partners as they could not be covered under compliant plans and for some plans for highly compensated executives.

          HL has a right to act on its moral objections. But just like a military service objector is not unfairly denied the benefits of the GI bill, HL objections do not make it unfair they lose tax advantages.

        • Thales permalink
          July 12, 2013 8:59 pm

          kurt,
          For those who simply provide non compliant insurance, that is not illegal nor fined
          [shrug] The point of HL’s suit is that they want to continue providing the insurance that they are now providing, but they can’t because they will be subject to huge fines.

        • Kurt permalink
          July 15, 2013 11:18 am

          Thales,

          Correct. There is a case for society offering an accomodation to HL. But so long as AN accomodation is offered that relieves them of their religious problem, that duty is met. HL does not get to choose what form the accomodation takes. Like I said, a war objector does not get the benefits of the GI bill.

          Getting out of the business of controlling their employees health care puts HL in a position where it is not providing any drug or service it objects to. Religious objection satisfied.

          It also puts no additional burden on it, in fact saves them hundreds of millions of dollars. It also does not deny their employees acess to health care which they can now get through the Exchanges.

          So no harm to Hl and no harm to the workers.

          Between the social contribution by tax advantages and the employee premiums, Hobby Lobby is putting up less than half of the money for their employee’s insurance. Yet they want all of the say, including by forcing their orthodox Catholic workers to pay for contraception against THEIR religious conscience.

          This whole issue has been that a bosses conscience trumps everyone else’s even when the boss is putting up less than half the money.

          Employees deserve better. Let’s accept that HL is correct on the nature of the three pills it wants to ban. But correct as they may be, it comes in the catagory of a stopped clock being right twice a day or, as my mother says, even a blind sow finds an acorn every now and then.

          But HL would demand the right to exclude any drug, surgery or medical treatement it discovered a moral objection to. Maybe they happen to be right this time, but should workers realy be denied FDA approved drugs because a man whose expertize is in marketing kits to turn popscile sticks into amazing objects d’art? What if next time they have a moral objection it is to the treatment of a prostate cancer patient in the midst of treatment?

          No, they have their accomodation. The lose their control over their worker’s health care. It is fair to all parties. They may WANT to continue to control their employee’s health care, but for that, they do not have that right.

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