The Evolving HHS Mandate: A Play in Three Acts (So Far)

 
 

A play in three acts, each consisting of a meeting between the CEO of a religious charity and the agent representing her health insurance company.

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Act One: 

Charity: So, now that HHS has had time to implement the Affordable Care Act, what’s in this new “preventive care” mandate they’re laying on us?

Agent: Well, the Department says the insurance you’re required to provide must include prescription contraceptives (some labeled by the FDA as abortifacients) and sterilization services, at no cost to your employees and their dependents. It will be right there in the package you’re paying for.

Charity: What? We’ll be underwriting evil acts that our religion prohibits, by our own acts the government requires us to perform. We can’t do that.

Agent: How come? You won’t be committing the sins in question, and some of the folks you hire don’t share your views about what’s sinful. They could be paying for such services themselves right now and you wouldn’t fire them, would you?

Charity: Of course not. But if we’re paying for these services, or even just arranging for them to be provided, such that our actions are united with the specific transactions in question, as causes of their occurrence, then we’re cooperating with evil, at least materially (supplying some of the “matter” of the deed, as it were). And if we’re compelled to do something tantamount to saying “here is an abortifacient we give you free, use it if you want,” then arguably we’re formally cooperating, uniting our intentions with the very evil we want nothing to do with. If we just pay people a salary and they spend their money on these things, then that’s too remote a contribution of “matter” in the business, and no blame attaches to us for what they do.

Agent: You’d better talk to HHS about whether they can give you the same exemption from this mandate that they’re giving churches, whose employees don’t have to get this coverage at all.

Act Two:

Agent: Good news! The government now says the coverage to which you object won’t appear at all in your contract with us. We still have to provide the coverage and put it in your employees’ policies, so long as we’re in this contract with you, but we can’t charge your employees or itemize this as part of the premium you pay us. Not to worry, though. We’ll make up the difference between what this costs us and what childbirth costs us because (we think, or so the government says) fewer kids will be born as a result of what we “give away” in contraceptives. We won’t be lowering your premium. We’ll just move the dollars around in our accounting. Everyone makes out, and you’re off the hook. Just sign here on this EBSA 700 form, or if that bothers you, write HHS a letter stating your religious objection, and the government will know, and our responsibility for taking care of the rest will be triggered.

Charity: Oh no! This changes nothing! Our charity will still be responsible for cooperating with evil.

Agent: Hang on, why is that? This is an “accommodation” of your objections to cooperating!

Charity: You just got through telling me that nothing really changes in your provision of the objectionable coverage to our employees—our premium doesn’t even go down, so we’re still really paying for it. But even if we didn’t bear the costs in a de facto way, when I sign that form or that letter, I “trigger” (your word!) that responsibility. We don’t “opt out,” we opt in! The government is still hijacking our insurance plan. I’d better call our lawyers about challenging this mandate on grounds of religious freedom.

Intermission:

The first act of our drama corresponds to the initial imposition of the HHS mandate, which treated all employers except narrowly defined houses of worship and insular religious societies alike. All were required to provide prescription contraceptives (including some the FDA labels as abortifacients) and sterilization services to employees and dependents in their health plans. The second act reflects the “accommodation” later offered to religious nonprofits by HHS, which was unacceptable to those employers and brought us to the litigation in Zubik v. Burwell, the case regarding the HHS mandate’s legality under the Religious Freedom Restoration Act. The case consolidated seven lower court cases for review, including that of the most famous challengers, the Little Sisters of the Poor, who run nursing homes for the elderly.

After hearing oral argument on March 23, the Court published a very unusual order on March 29. The order instructed the parties (both the objecting religious nonprofit employers and the Justice Department) to consider a hypothetical situation in which the employers, saying nothing to notify the government, buy a health plan for their workers that does not include contraceptive coverage, from an insurance provider that nonetheless takes steps to provide the coverage in a way that was free to the employees and neither paid for nor provided through the employers’ plans. How, the Court wanted to know, would the parties reason through the conflicting demands of the mandate on the one hand and the principles of religious freedom on the other? On April 12, the parties submitted their answers in legal briefs, and on April 20 they replied to one another’s briefs.

On May 16, a unanimous Supreme Court vacated and remanded the seven cases consolidated in Zubik to the five federal circuit courts from which they had come, to reconsider in light of these latest briefs whether the parties could come to an accommodation of full religious freedom while still providing access to the coverage the government demands. And so we come to . . .

Act Three:

Agent: Hey, more good news. The Supreme Court has told the lower courts to hear us out on some kind of workaround where you’re not on the hook for the contraception but we still have to cover it. HHS and DOJ don’t think any workaround is necessary, but they say they could give it a try. What the government wants to do might work—

Charity: Not so fast! They seem to agree that I can say to you, “for religious reasons we want to buy insurance for our organization’s employees that doesn’t include the contraceptives, abortifacients, and sterilization services otherwise mandated by HHS.”

Agent: Right, that’s all you do, then I pick it up from here and take care of the rest. Just as we discussed before, I do provide the contraceptives to your employees and their dependents, charge them nothing, leave it out of all my paperwork with you, and recoup my costs in savings on decreased childbearing. But all of that is on me, and you needn’t sign any kind of notification to the government yourself. That’s the new part. So I guess you really are off the hook with HHS. You don’t even have to object to objecting! Sound good?

Charity: Actually, no. This government “workaround” really makes no difference in its moral implications. My organization and I are still complicit in this evil that our religion condemns. Our not talking to the government directly doesn’t change anything.

Agent: Huh? How come?

Charity: Let me ask you something. Why are these women, the ones who work for us and the ones in our employees’ families, getting the contraceptives, abortifacients, and sterilization services from your company?

Agent: Um, because you bought group insurance from us, and the government requires it?

Charity: Exactly. And if we changed to a different company for our group health plan, would you still be “giving away free” contraceptives to our employees and their dependents?

Agent: No, that responsibility would fall on your new insurer.

Charity: Right. So, in the new script suggested by the Supreme Court’s order for supplemental briefing, what did you actually hear when I said that “for religious reasons we want to buy insurance for our organization’s employees that doesn’t include the contraceptives” and so forth?

Agent: I guess I heard you tell me that we’re legally responsible for providing those services to the women covered by your group plan, because you came to me to purchase that plan.

Charity: So we’re not really telling the truth when we say that our organization has nothing to do, formally or materially, with these women receiving these services from you, are we?

Agent: No, I guess we’re not.

Charity: Check. And in our organization we believe faith as well as reason tells us that it is sinful to cooperate with evil. It’s also sinful to tell a lie. I can say “for religious reasons we want to buy coverage that doesn’t include contraceptives,” but we’re not exempt like a church. Precisely because I say that, you have to provide them the coverage. Looks like we’d still triggering the coverage, only we’re just acting like we’re not. There is a better way, and it’s what our side proposed as an accommodation.

Agent: What’s that?

Charity: Well, we start the same way, but what happens next is different. We come to you and buy insurance that doesn’t cover any of the contraceptives, abortifacients, or sterilization services that the government is making other employers provide. Then you contact our employees (you know who they are!) and offer them the extra coverage, but—and this is the key point—without any automatic enrollment in that coverage by virtue of your contract with us. They have to be given the option of taking the extra coverage or declining it, like a dental or vision plan—so it would actually make sense if they had a second insurance card to indicate whether they had this, because some of them will take it and some won’t.

Agent: Works for me, but can you explain how this is okay but what the government wants to do is not?

Charity: Well, all along what we have objected to is not that some people use contraceptives—even people who work for us. It’s wrong, but that’s their business and all we can do is communicate our view of it. What we’ve objected to is our own culpable involvement in a transaction resulting in wrongful behavior—that is in some sense happening because of us and our actions. Even the so-called “accommodation” put us right in the middle of it, as I explained to you before. So does the government’s new “workaround.” To cut off our involvement and let us avoid the sin of cooperating with evil, the transaction has to be entirely on the part of other people who are making their own choices to take the coverage from you or do without it. Then we could say truthfully that we are exempt from the HHS mandate, not just concealing our cooperation with it under a fake “accommodation.”

Agent: The government doesn’t like this option, you know. They say it frustrates their goal of universal coverage. And Justices Sotomayor and Ginsburg say in a concurrence they want the coverage to be “seamless,” and you know what that means.

Charity: Well, that’s just two justices speaking for themselves, not the whole Court. The other six didn’t say it. And leaving aside the millions of people who are exempt already, thanks to grandfathered plans and other exceptions, what does the government have against choice? Our way, every female employee who wants the coverage will be able to get it and use it. Isn’t that “universal” and “seamless” enough? I know it’s not for this administration, which has been determined to force people to accept contraception and abortion, regardless of their religiously informed consciences. We’ve told them for over four years that our faith forbids accepting such evils and involving ourselves in them, and for four years they’ve told us we’re “not religious enough” or “not really burdened” or that we don’t understand our own theology! When the Court sent these cases back down to the lower courts, it showed that there’s at least one institution in our government that is interested in solving the problem the administration has been determined to impose on us. And when the government’s lawyers said it could be done our way, they conceded that it’s “less restrictive” on our religious freedom than the way they want it done.

Agent: Do you think the courts will see their way through to a fair outcome?

Charity: They have an opportunity to see the way forward that we’ve shown them. The government might want to double down on oppression—it wouldn’t surprise me! But at least they can’t fine us while we argue to the judges that this can be worked out in a way that respects our religious freedom. Time to pray for wisdom and fairness, I guess.

Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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