HHS Revisited: The New “Compromise”

While anxiously awaiting a response from the USCCB to the new “modification” announced by the Obama Administration on Take-Out-The-Trash Friday, I found myself looking back at the initial set of thoughts that I put together almost a year ago to date.  I thought it worthwhile to revisit the concerns I had about the initial HHS Rule and the USCCB response to see if they still apply.

However, let me start with the term “accommodation.”  My fear that our country has been employing a “Leap Forward, Hop Back” strategy with most contemporary issues is illustrated perfectly in this health care debate.  The strategy is to make an absurd leap forward that is very difficult for a large portion of the population to swallow, and then to take a small hop back to “make up for it.”  The long term impact of this is the rapid accumulation of the forward motion and the acceptance of it by the American people under the guise that those in power have “compromised” by taking the small hop backwards.  What they forget is the the initial large step was no compromise in the first place.  It is worse than the old frog-in-boiling-water lesson.  You know the old wisdom: if you place a frog in boiling water it will jump out immediately, but if you place it in cool water and gradually increase the temperature, it will happily boil to death.  While others have applied this old adage to the current debate, I think it is actually worse than what it seems.  The “leap forward, hop back” is even more devious than the gradual-temperature-increase.  Instead of slowly boiling the frog so that he doesn’t realize it, this strategy is like raising the heat on the frog rapidly and just before it gets to the point of jumping out, drawing the heat back a little.  In this way, the frog not only boils to death without complaint, but it actually periodically thanks you for those brief moments of cool relief that you so generously offered.

The mere notion that the White House has “expanded the number of accommodations” to the HHS mandate is absurd in and of itself.  Since when is an “accommodation” for religious purposes even necessary?  The very language of “accommodation” makes the Administration seem so benevolent – it is the periodic cooling down of the frog.  What is continually lost on the President and his supporter is that the fundamental right to religious freedom guaranteed in our Constitution is prior to the faux right to free “health care.”  If the two were to be in conflict, it would be the latter that need accommodated, not the former.  (Now would be a good time to cynically remind ourselves that the President is a Constitutional Lawyer.)  The so-called “right to health care” is mentioned nowhere in the Constitution and should thus, under the Tenth Amendment be left to the States and be subject to those rights that are federally guaranteed, including those in the First Amendment.  Notice that I am not saying that people should not have access to affordable health care, only that this is not the role of the Federal Government.  This act of “generosity” by the Administration is nothing of the sort.  It is essentially a concession that, “We promise to violate the rights of a smaller number of people than we intended before.”  An accommodation should not be necessary as religious freedom is guaranteed to all citizens.

With that, let’s turn to my comments from a year ago.  I made three points – the original text is in bold

1.  Religious Liberty is an Individual Freedom.

It seems to me that the focus of the national Catholic conversation has been on the Obama administration’s violation of the freedom of religion by forcing Catholic institutions such as hospitals and universities to provide employees with contraceptives and sterilizations, a practice that is in clear contradiction to the teachings of our faith.  While this is certainly deplorable and the most overt violation of the First Amendment, what has been relatively missing from the dialog is that religious liberty is not merely a liberty granted to religious organizations.  First and foremost, religious liberty is an individual liberty.  Each and every citizen of our nation is guaranteed under the Constitution the freedom to practice one’s religion both publicly and privately and to not be coerced into violating our consciences by acting in a way contradictory to the tenants of one’s faith.

Thus, the HHS rule is not simply a violation against specifically religious organizations.  It is also a violation of the religious liberty of the individual business owner, Catholic or otherwise.  As a Catholic, the owner of a private business cannot, under the Constitution, be compelled by the government to pay for “medical” services that violate his or her faith, including contraceptives and sterilizations.  This applies not only to those companies that have a religious mission, such as EWTN or the Knights of Columbus, but also to the owner of a chain of restaurants, a manufacturing form, or an publishing company.  Further, it also applies to the faithful Catholic owner of a medical insurance company.  Forcing the insurance company to provide coverage for these services despite religious beliefs, is a clear violation of the protection guaranteed under the First Amendment.

My fear is simple.  If the conversation focusses exclusively on those organizations for which Bishops have direct involvement, we may very well see further “compromise” between the Obama administration and the USCCB, but tens of thousands of other Catholic business owners will be lost in the shuffle.  In fact, I will go so far as to say that even if the HHS does a complete 180 on the current issue, i.e. incorporating Catholic hospitals and universities in the exemption clause without the bogus compromise that forces the insurance companies to cover the costs and services … even then, the fight is not over.  Because even then there will be thousands of businesses who are not included in the exemption clause because business activities have no specifically religious purpose.  Yet these owners too have the right to practice their religion, and hence should not and cannot be compelled to act in a way contrary to their faith.

Looking back, my fear seems well-founded.  The cynic in me believes that the Obama Administration is not offering a “compromise” but rather clearing the legal playing field of all competition.  While I am not a lawyer, it seems likely that Notre Dame, EWTN, schools and hospitals may now be exempt under the revised accommodation and therefore not have standing in court.  A more sophisticated legal analysis will flush this out, but it seems abundantly clear that the private for-profit business owner will still not be exempt and will be forced to violate their moral consciences.  And the problem of the Catholic owner of a medical insurance company still remains a very large problem, hitherto unaddressed in the national conversation, for under the law they are forced to comply with this mandate in a manner altogether different, and more directly than the employer.  (Here is where I would love to see the Knights of Columbus, who have a history in the life insurance industry, begin to offer medical insurance and refuse to sell plans that cover contraceptives and abortion services, if only to give them standing in court.)

I understand why the USCCB rhetoric focusses on specific arms of the Catholic Church (schools, universities, parishes, dioceses, hospitals, etc.), which presumedly was because these are the easiest legal battles to win.  However from the perspective of moral philosophy, the emphasis seems misplaced.  A moral conscience is something possessed by an individual.  The reason why the mandate for a Catholic University is unjust has less to do with the fact that the institution is formally associated with the Catholic Church and more to do with the fact that the individuals who run it and make decisions of what health insurance to purchase are Catholics who feel that they cannot comply without violating the moral code.  While an institution, religious or otherwise, can be said to have some sort of “collective conscience,” this is only by analogy to an actual conscience possessed by an individual.  Further, it is the individual that is protected by the Bill of Rights.

Granted, the interference of the government in an official religious institution brings with it a whole different set of problems and violations of the Constitution, so I am not necessarily faulting the bishops on their focus on this aspect of the mandate.  However, they will certainly need to revise their rhetoric, and they now risk looking like the “side that refuses to compromise with a very measured and reasonable President.”

2.  There is a Silver Lining.

The felix culpa effect never ceases to amaze me.  God can bring good out of the most heinous evils, the case and point being the crucifixion.  The silver lining to the current HHS tragedy is the unified effort of the Catholic Episcopacy.  While the thought that the Obama administration feels that it can abuse its power in this manner terrifies me, the response by the Bishops has given me great cause for joy.  When the Bishop’s letter was read from the pulpit two weeks ago, the congregation applauded.  It is a powerful moment for the Church.

In hindsight, while I still applaud the bishops for their effort, we now have the results of the national election to help frame their response.  It is clear that the American political scene as well as the 50% of Catholics who still voted for President Obama that the bishops are not being taken seriously.  I think that they have underestimated the effects of a decades-long silence, something that cannot be broken in a single election cycle.  While they are to be commended for stepping up to the plate, they are not miraculously immune from the cement that has been allowed to dry and and cure for nearly half a century.  They will eventually be able to break it apart, but it cannot be done in one summer.  They will need to continue chipping away at this in order to regain credibility among the Catholic faithful.  Until that happens – until an election can actually be influenced by the episcopacy – the Democratic party has no reason to change course, and the “leap forward, hop back” strategy will continue to be highly effective.

3.  “Health Care” is being Redefined.

My final point has been mentioned by several others, but it warrants reiteration.  There is a not-so-subtle redefinition of “health care” in this whole debate.  There is a certain amount of irony that under the president’s health care bill and the accompanying HHS ruling, I will not be able to receive Tylenol or toothpaste for free, but women will be able to receive birth control and abortifacients for free.  Tylenol is a drug that actually tries to cure something that is “wrong” with the body, and toothpaste is authentically “preventative” in terms of dental health problems.  Yet birth control and abortifacients have little to do with the health of the body.  In fact, they are often used for reproductive systems that are otherwise heathy.  They are designed to take a perfectly healthy and well-functioning bodily system and stop it from functioning how it should.  Since when did fertility and pregnancy become a disease?  Since when is birth control more “preventative” than toothpaste and abortifacients more of a “cure” than Tylenol.

Looking back, the Democratic party has been marvelous in recasting this issue.  The Sandra Flukes of the world have become the mouthpieces for this rebranding.  People genuinely believe that contraceptive services are a part health care.  What is perhaps most amazing, however, is how the Obama Administration has not only managed to classify contraception as health services, but they have actually managed to give it a priority even over actual health care.

From what I understand, under the revised accommodation, if an employer is “generously” exempted from the mandate, the organization will be permitted to purchase a health care plan that does not include contraceptive services.  In this case, however, the insurer will be required to offer a separate plan to the employees that does provide such services (and here’s the kicker) at no cost and with no copay.  It continues to amaze me how the Administration has been able to convince the American people that something can actually be free.  So long as a product involves resources, material or human, it literally cannot be free.  So the question is: who is actually paying for the service?  It won’t be the insurance company, for their bottom line will simply incorporate the cost into the original plan, or spread it out over everyone’s plans.  We have then come full circle on the original problem: an exemption is an exemption in name only – the employer is still paying the cost of the contraceptives.  It reminds me of the clothing company which advertises “buy one suit get one free,” when all they have done is to double the price of suits.  So the consumer is still paying the same amount, but they have been coerced into purchasing two suits rather than one.  (This, by the way, is illegal and considered false advertising, yet when applied to the HHS mandate it is seem as a “compromise.”  Leap forward, hop back.

The real absurdity, however, is in the “no copay” clause.  When I go to the doctor for pneumonia and get an antibiotic, we have a copay.  When my kid gets a breathing treatment for his asthma, we have a copay.  When my wife gives birth to a child, we have a copay.  Yet under the Obama plan, contraceptives must be offered with no copay.  Thus, not only have contraceptives been successfully cast as health care, but they have actually been cast as health care that is so essential that it should not even have a copay.  It has been prioritized over those things that actually are clear examples of health care.  So it seems that being able to have sex without consequences is more important than whether my three-year-old can breath properly.

The genius of this Administration lies in its rhetoric and manipulation.  They have begun the conversation with such an absurd proposal, that most of the American people will now not only accept the compromise, but also applaud the President for his ability to “meet in the middle,” and all the while the main issues are being eclipsed by meaningless details.  Undoubtedly, those of us, which may very well include the USCCB, who still find fault with the HHS proposal will be cast as ideologues unwilling to compromise.  Indeed, I think the President very much had us in mind during his inauguration address when he said, “We cannot mistake absolutism for principle.”

The Democratic genius: leap forward, hop back.