Tag: Michael Sean Winters

Conscience Regs Are Totally Inadequate

National Catholic Reporter
Distinctly Catholic
2 August 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

. . .to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

The Department of Health and Human Services released it new rule regarding mandated coverage, with no co-pays, for women’s health insurance policies. As a part of that rule, HHS included conscience protections for religious institutions, or at least HHS claimed to be doing so. In fact, the new rule is totally inadequate and the best that can be said about it is that it is provisional. HHS explicitly invited comment for sixty days before the rule is finalized.

Here is the key language governing the exemption for religious organizations:

“a religious employer is one that:

(1) has the inculcation of religious values as its purpose;

(2) primarily employs persons who share its religious tenets;

(3) primarily serves persons who share its religious tenets; and

(4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code.”

The rule notes that this language tracks with the language in 28 states that allow such exemptions on religious grounds. It states:

The definition set forth here is intended to reasonably balance the extension of any coverage of contraceptive services under the HRSA Guidelines to as many women as possible, while respecting the unique relationship between certain religious employers and their employees in certain religious positions.

This is presented as an effort to “reasonably balance” interests. But, there is no balance. There is a First Amendment guarantee that Congress make no law restricting the free exercise of religion. Last time I checked, there is no First Amendment right to an insurance policy that covers contraception.

Of course, the First Amendment also prevents religious establishment, and some women’s advocates see the new rule as an unacceptable interference by religion. Judy Waxman, vice president for health and reproductive rights at the National Women’s Law Center, denied the very idea that the Affordable Care Act gave the administration the authority to include a religious exemption. “We don’t think there’s any authority in the law to have a conscience clause,” Waxman said. “It’s unfortunate that the administration is considering this proposal to allow some employers to deny this coverage to women.” Again, the authority to provide a religious exemption may, or may not, be in the ACA but it is certainly in the First Amendment. President Obama, who once taught Constitutional Law, surely knows this.

“Although this new rule gives the agency the discretion to authorize a ‘religious’ exemption, it is so narrow as to exclude most Catholic social service agencies and healthcare providers,” said Cardinal Daniel N. DiNardo, Archbishop of Galveston-Houston and chairman of the USCCB Committee on Pro-Life Activities in a press release from the USCCB.

The problem is with the conjunction “and.” If that conjunction were switched to “or” the new rule would be fine. The four items listed as defining a “religious employer” include “primarily employs person who share its religious tenets.” But, Catholic schools and hospitals employ lots of non-Catholics. The language also requires a religious employer be one that “primarily serves persons who share its religious tenets” but, again, Catholic hospitals and schools take care of all people. Under this rule, we would have to kick out poor Protestant kids from our schools, and refuse to treat Jews in our hospitals. Is that what the administration intends? As Sister Mary Ann Walsh said in a blog post at the USCCB media blog, “HHS’s reg conveniently ignores the underlying principle of Catholic charitable actions: we help people because we are Catholic, not because our clients are. There’s no need to show your baptismal certificate in the hospital emergency room, the parish food pantry, or the diocesan drug rehab program. Or any place else the church offers help, either.”

Sister Carol Keehan, head of the Catholic Health Association, acknowledged that parts of the new rule are laudable. “There are many aspects of this new rule that are vital in protecting life,” Keehan told me yesterday. “Eliminating deductibles and co-pays for screening services is wonderful for protecting the health of all women but especially those who are poor.” But, Keehan also noted that the conscience exemptions need to be air-tight. “We have a comment period in which to study and recommend any changes necessary to assure the conscience protection language is adequate,” Keehan said. “Adequate conscience protection will be essential and we will study what has been released, dialogue and submit comments to assure we have adequate conscience protection.” She also praised the administration for removing abortifacients from the list of mandated coverage, although there is some debate about the effects of one of the FDA-approved drugs. The administration may not listen to me. They may not listen to the USCCB. But, they surely should listen to Sr. Carol without whom there would be no Affordable Care Act in the first place.

The White House should be aware that this is a really, really big issue for us Catholics. And, to be clear, the issue is not contraception. There is no effort to force our views on contraception on the whole society, only an insistence that society’s views not be foisted on us. Many Catholics disagree with the Church’s teaching on contraception to be sure, but if the government can dictate to us on this point, it can dictate to us on any point. And, then, the First Amendment becomes meaningless.

This is also a test case for the White House Faith-Based Office which serves as a liaison to the religious community. They have much improved their outreach to Catholics this year, as I noted in an article last month. But, there remains an outstanding question: How much juice do they have within the administration? The Faith-Based Office knows how important this is to Catholics. Can they persuade others within the White House and HHS to act on that knowledge? To be clear. Keeping the rule as is would give me great pause in casting my ballot for Barack Obama next year, not because he failed to do right by my Church, but because anyone who fails to grasp the constitutional issue here probably should not be entrusted with the post of Chief Magistrate under that same Constitution.

Sixty days is not a long time. But, it is long enough for those who consider ourselves liberals to call on the administration to be true to the best in the liberal tradition, the idea that consciences should not be violated by the government. And, it is long enough for those of us who are Catholics to voice our concern that we do not want to restrict our hospitals and our schools to ourselves, but wish to continue to offer them as a service to the nation and all its citizens. Let’s hope the administration will listen.

Conscience and Mandates

National Catholic Reporter
Distinctly Catholic
21 July, 2011

Reprinted by permission of National Catholic Reporter,
115 E Armour Blvd, Kansas City, MO 64111

Michael Sean Winters*

The rights of conscience are at the very heart of American history. . . In the jurisprudence of the Supreme Court, the rights of conscience have been vindicated by a long line of First Amendment cases that have raised the bar very, very high against those who would seek to impose their will against the conscience of a citizen.

Yesterday, the Institute of Medicine released its suggestions for what procedures should be mandated for inclusion in private insurance plans under the health care reform law. Some of the proposals seem non-controversial enough: They recommend, for example, that a more sophisticated, and expensive, test for the virus HPV, which is linked to cervical cancer, be part of the mandated services. That is all to the good. But, the recommendations also tread on some highly contentious areas regarding contraception and, worse, abortifacients. Those suggestions go to the Department of Health and Human Services which will formulate the final rules governing mandated coverage. To be clear, the recommendations released yesterday are just that, recommendations.

I am no scientist nor a moral theologian, so I will focus on what is, to me, one of the most pressing aspects of these regulations, the need to protect conscience.

The rights of conscience are at the very heart of American history. Many of the early colonists came to these shores seeking refuge from religious persecution, although the Puritans did not extend those rights to others once they arrived and set up shot. Roger Williams, however, did establish a religious justification for the rights of conscience in his colony of Rhode Island. This impulse to deny the community to right to coerce the conscience of an individual was leavened in the eighteenth century by Enlightenment influences and the First Amendment stands as a central tribute to, and protection for, those rights. In the jurisprudence of the Supreme Court, the rights of conscience have been vindicated by a long line of First Amendment cases that have raised the bar very, very high against those who would seek to impose their will against the conscience of a citizen.

As Catholics, we locate our concern for conscience differently from the way Locke or the Puritans or the Supreme Court did, but not that differently. For us, the rights of conscience are rooted in our beliefs about human dignity. In Vatican II’s Decree on Religious Liberty, a document that failed to resolve some of the deeper anthropological and theological issues surrounding conscience rights, the Church nonetheless affirmed its commitment to freedom of conscience, a milestone in the Church’s history.

Earlier this year, when the administration released its new conscience regulations, I made the point then, and it remains relevant to this discussion: Liberals should be ashamed of themselves when they cease to defend the rights of conscience. Simply from a PR perspective, it makes sense for the USCCB to solicit the aid of non-Catholic groups that defend First Amendment rights. Not only will this show that our case is more than one of special pleading, it will show that our stand is principled in every regard. The right of a woman to procure an abortifacient does not trump the right of a female doctor to refuse to provide one. Liberals need to do their homework before they dismiss the Church’s concerns.

A couple of other points come to mind. In a statement, HHS Secretary Kathleen Sebelius said the recommendations were “based on science and existing literature.” Well, I suppose John Locke still counts as “existing literature.” But, more to the point, science can only tell us so much and I am philosophically allergic to the kind of creeping scientism that believes that branch of human inquiry can solve all issues. It can’t. The insidious, racist book “The Bell Curve” claimed to be scientifically based, but the conclusions of that book stand condemned as inhumane nonetheless on philosophic grounds. As my mentor Leon Wieseltier said at the time, and which I have quoted before, “There is not a chart in the world than can explain the role of charts in the world.”

Second, there are some conservative Catholics – George Weigel comes to mind – who have argued that the bishops’ conference diminishes the “voice” of individual bishops. But, within hours of the release of the new recommendations from the Institute of Medicine, the USCCB had a statement critiquing them. The USCCB was able to respond quickly, forcefully and intelligently because it has staff that monitors these issues, just as local Catholic Conferences monitor such issues at the state level. Individual bishops could scarcely afford to keep full-time staff in Washington to monitor these matters. Richard Doerflinger does great and important work at the USCCB defending life, calling our attention to challenges facing the Church. I do not always agree with his conclusions but I am very glad to have him at the USCCB doing what he does.

Third, one of the political challenges for the Church in fighting these recommendations is that the number of pro-life Democrats serving in Congress shrunk drastically after last year’s midterm elections in part because groups like the Susan B. Anthony List attacked them and helped fund their opponents. Yes, they had differences over the health care reform law. And, the SBA List has every right to make their position known and support whom they like. But, why did they not try to replace pro-choice Democrats with pro-life Republicans? By going after pro-life Democrats with whom they had relatively minor differences, they have greatly weakened the bargaining power of the pro-life movement within the counsels of the Democratic Party.

Finally, and following up on a theme I have been addressing of late, I wish the USCCB statement had acknowledged some of the good in the new recommendations. After all, there has long been a deficit in coverage for procedures that are unique to women, and redressing that imbalance is a good thing. I understand that we must all set priorities. I understand that there is something morally shocking about the fact that our political leaders spend so little time addressing the lack of health care for the poor and the immigrants. But, I worry that the Church too often appears as a scold in public debates, always defensive, always rejecting. It costs us nothing to praise what is good.

This will be a big issue in the weeks and months ahead. Already professor Stephen Schneck, director of the Institute for Policy Research & Catholic Studies at CUA, and a man who took a lot of heat for his support of Sebelius’ nomination, put up a post last night on the public theology list-serve that read: “Plan B and similar should not be covered. The rationale for including such items in category intended for critical basic medical care is unpersuasive. Planned Parenthood and similar organization already provide contraception free to poor women. Moreover, on the face of it, the mandate seems to be at odds with the executive order that got some pro-life support for the health care bill. It’s time for the administration to be clear about its respect for religious concerns about life issues. At the very least, religious and conscience exemptions need reaffirmation now.” HHS would be well advised to listen to Schneck.

All of us have an obligation to inform ourselves about conscience rights. To that end, here are some of the more recent posts, including one by Schneck and another by Professor Robert Vischer of University of St. Thomas Law School in Minneapolis, that I ran here earlier this year.