“Religious employers must cover pill, Feds say”

by Walter Olson on January 23, 2012

HHS secretary Kathleen Sebelius said giving church-related sponsors of health plans an additional year to comply with the contraceptive mandate “strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services.” Really? If religious freedom is in fact at stake, what kind of “balance” is attained if it gets a one-year reprieve but then expires? A balance between current freedom of institutional conscience and future lack of same? [AP] On the Obama administration’s remarkably unfriendly stance toward self-governance by church institutions, see my coverage of this term’s Hosanna-Tabor Supreme Court case. More: Michael Greve has a must-read analysis predicting the directive’s downfall in court, and pointing out the procedural dodginess of this and much other regulation implementing the ACA. And Thom Lambert asks: “What if the Government Ordered the Human Rights Campaign to Cover Conversion Therapy for Gays?”

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“Their government’s communitarianism leaves no room for their church’s communitarianism”
02.04.12 at 9:16 am
Scope of existing state employer-contraceptive mandates
02.09.12 at 7:30 am

{ 25 comments }

1 John Fembup 01.23.12 at 7:24 am

“what kind of “balance” is attained if it gets a one-year reprieve but then expires?”

Answer: It balances the requirements of the law with this year’s re-election needs of the current president.

2 Rliyen 01.23.12 at 10:31 am

I find this appalling. Yes, I am a lapsed Catholic, but I can not but help seeing the double standard here. People scream about separation of church and state, but only if it benefits the state and not the church. Then, when the tenet on birth control comes up, it’s perfectly all right for the state to come in and tell the religion to get in line. Pathetic.

3 Flemur13013 01.23.12 at 10:51 am

I find this appalling and I’m an atheist. Sebelius and her ilk seem to look forward to the day when “everything that’s not prohibited is required”.

4 Hugo S. Cunningham 01.23.12 at 11:42 am

In a properly designed health insurance reform, the choice of policy (including benefits and costs) should be made by individual families, not by employers who might not share their values.

Incidentally, any money policies “save” by denying coverage for contraception or abortion is more than made up for by costs of un-planned pregnancies and their consequences. Individual subscribers can be offered a choice, whether their payments for the separated costs of birth control and abortion should be used for that purpose, or redirected to benefits for unwed mothers.

5 Renee Aste 01.23.12 at 12:20 pm

I’m Catholic. I once use contraception, but stopped. I practice NFP. I even participated in studies with my husband on the efffectiveness of it. Yes, it does takes discipline and a stable communicative relationship.
Ironicaly, my nonreligious mother thinks it is healthier. A woman’s natural fertility plays a key role in cues in mating according to researchers who study human sexuality. I understand how The Pill has become so common, but chemically it shuts down your sexuality.

6 gitarcarver 01.23.12 at 1:27 pm

In a properly designed health insurance reform, the choice of policy (including benefits and costs) should be made by individual families, not by employers who might not share their values.

I disagree. If the employer is going to be paying the bill – either most or a part of it – they have an absolute right to choose what they are paying for.

If anything, maybe we should say the company has the right to choose the policy and add-ons to that policy should be available to the employee.

I have a difficult time with the idea the government or anyone can demand a person violate their religious or moral convictions.

Incidentally, any money policies “save” by denying coverage for contraception or abortion is more than made up for by costs of un-planned pregnancies and their consequences.

I am not sure, but it seems that you are saying that unless a company provides a service, people will be irresponsible. So much for personnel responsibility. Let’s blame corporations!

7 kimsch 01.23.12 at 2:48 pm

We need to untie health insurance from employment. Then we need to ensure that it is, indeed, insurance – not the “pre-paid” medical that it is now.

Allow me to have a health savings account that rolls over year to year and I can pay for my doctor visits from that. I can pay premiums for health insurance that will cover catastrophic events.

Both costs and prices will go down when people make decisions based on what it will cost them out of pocket.

8 Bored Lawyer 01.23.12 at 5:13 pm

I disagree. If the employer is going to be paying the bill – either most or a part of it – they have an absolute right to choose what they are paying for.

The only reason the employers pay the bill is that we have a screwed up tax system, whereby if my employer pays me a dollar and then I buy health insurance with it, that dollar is taxed first, but if instead he pays the dollar directly to the insurance company and calls it an employment “benefit,” it is not. The economic reality, however, is that the employee is working for his wages and benefits, and what he gets in total is his total market value as an employee. From the employers’ point of view, it makes no difference if they paid me a higher salary and then told me to go out on my own to buy insurance — in fact it would save him the headache of administering the health insurance plan.

I agree that we need to untie health insurance from employment. Best way to do it is either tax benefits or make insurance payments deductible. Then each person would be free to buy the health insurance they want, as today they are free to buy other forms of insurance (car, home, life, etc.)

9 gitarcarver 01.23.12 at 8:25 pm

…….but if instead he pays the dollar directly to the insurance company and calls it an employment “benefit,” it is not.

Yet different companies advertise and promote different benefit packages for employees. It is part of the free market for the employer and the employee.

Also your individual dollar buying insurance does not have the same value as that same dollar buying insurance in a group. There is a reason why large pools of insurers cost less per person than individuals.

10 smart dude 01.24.12 at 12:08 am

John Fembup: bingo!

11 Doug Indeap 01.24.12 at 2:08 am

Questions about the government requiring or prohibiting something that conflicts with someone’s faith are entirely real, but not new. The courts have occasionally confronted such issues and have generally ruled that the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning traffic, pollution, taxes, contracts, fraud, negligence, crimes, discrimination, employment, and on and on) and can require everyone, including those who may object on religious grounds, to abide by them. Were it otherwise and people could opt out of this or that law with the excuse that their religion requires or allows it, the government and the rule of law could hardly operate. Thus, the government can forbid discrimination against specified people and apply that law even to those who say their religion allows or requires them to discriminate. In rare (one hopes) circumstances, such a generally-applicable law could put an individual in an ethical Catch-22 if it requires one to take actions one considers immoral. For just this reason, when such binds can be anticipated, provisions may be added to laws affording some relief to conscientious objectors.

Here, it may be questioned whether there is real need for such an exemption, since no one is being “forced,” as some commentators rage, to act contrary to his or her belief. Employers generally are not required by law to offer health-related benefits to their employees, although the practice of providing such benefits is common. IF an employer chooses to offer health benefits, though, federal anti-discrimination laws and health plan enforcement regulations act to protect an employee’s rights under those health plans. So, depending on whether an exemption to the law is allowed, either employers or employees are put to a choice. If religious employers are exempted from current discrimination and health benefit laws so they can offer health benefits omitting some medications and services, employees can choose whether to accept such benefits or seek employment elsewhere. If current discrimination and health benefit laws are enforced, religious employers can choose to offer health plans complying with those laws or not offer any health plans at all. To the extent that employers already have an option under the current laws consistent with their religious views, they have less need for an exemption from those laws.

12 Ron Miller 01.24.12 at 10:28 am

“I understand how The Pill has become so common, but chemically it shuts down your sexuality.”

I need to pretend I never read that post. But I agree with the premise that religious organizations should have the right to any health benefit policies that it wants. And you are right, another year does not balance out anything. It is silly politician talk (from a woman who is very smart).

13 gitarcarver 01.24.12 at 11:45 am

Here, it may be questioned whether there is real need for such an exemption, since no one is being “forced,” as some commentators rage, to act contrary to his or her belief.

The institutions are faced with a choice on two levels. On the government level, they can offer the services or face a fine by not providing health care as required by the new law. It is not simply a matter of “not providing health care” as health care is mandated as well.

On the moral / religious level, they can either offer the services that are against their religious principles or not offer any health care which would be a violation of their moral and religious beliefs as well.

No matter how you try to depict it, the institutions are being “forced” to do something against their moral and religious beliefs.

14 Bored Lawyer 01.24.12 at 12:22 pm

Yet different companies advertise and promote different benefit packages for employees. It is part of the free market for the employer and the employee.

I have never seen this advertised. Usually, the benefits are only a small part of one’s compensation, so they make little difference. If the position and salary are good, there are few who would turn down a job because of the benefits package.

Also your individual dollar buying insurance does not have the same value as that same dollar buying insurance in a group. There is a reason why large pools of insurers cost less per person than individuals.

No reason individuals couldn’t pool their purchasing of health insurance together, such through professional or civic associations, unions, religious organizations, etc.

For what it is worth, I agree that forcing employers to provide a certain type of health insurance against their religious principles is an affront to religious liberty. But I still maintain that it would be better for the system overall if health insurance in this country was taken away from employers and was instead purchased by individuals, as indeed all other forms of insurance are.

15 Ron Miller 01.24.12 at 4:03 pm

Bored Lawyer, I think a lot of people agree with you in that we would be better off employers were left out of the health insurance business. But I think the real question is whether that makes sense given that we are where we are now.

I completely disagree that the benefits plan is rarely the difference in the hiring process. It is a huge cost for employers and a huge benefit to employees.

16 Doug Indeap 01.25.12 at 12:19 am

gitarcarver,
On the “government” level, conscientious objectors have the choice of providing qualifying health plans (which they find objectionable) or not providing any health plans and paying the government an assessment (not a “fine”) in lieu of providing health plans.
On the “moral” level, what religion mandates that employers provide health care to employees? That’s a new one on me. Government accommodation of conscientious objectors can only go so far, and attempting to “game” the issue will not do.

17 gitarcarver 01.25.12 at 10:30 am

Doug,

Of course it is a fine. It is penalty for not doing what the government wants. We can argue about the technical term for it, but the fact of the matter is the government is saying the institution has to pay if they do not follow the government mandate the institution finds to be objectionable.

You were the one that said that no one was being forced to comply with the regulations. If that is the case, then what is the purpose of the fine? It is designed to bring the institution into compliance.

I am sorry that you are unaware that many religions call for helping the sick and the needy. Many institutions founded by religions offered health care to their employees long before any government mandate or “benefits package” simply because the leaders of the institution felt it was the right thing to do within their belief system.

As for “government accommodation only going so far,” institutions and believers have held the same beliefs for thousands of years. The government has not intruded on those beliefs until now. The government demanding a group act against their widely held and principled beliefs is not part of a “reasonable accommodation.” It is an government intrusion into religious freedom of the institutions and believers.

Your accusation of “gaming” the issue is misplaced at best.

The government has no business telling a religion what it may and may not believe and that they must violate their beliefs. Period.

18 Doug Indeap 01.25.12 at 11:38 am

gitarcarver,

It appears to me that you are reading burdens into this law that just aren’t there in order to justify the outrage you seem committed to feeling. The law, at the end of the day, affords a conscientious objector the choice not to provide employees with health plans (parts of which the employer finds offensive) and, instead, simply pay money to the government. Whew! Objectors’ moral quandary avoided–that is, unless you’re going to tell me the employer has a religion that opposes paying money to the government.

19 Benjamin 01.25.12 at 1:54 pm

And thanks to this ruling, the religious employer may stop offering health insurance at all.

20 gitarcarver 01.25.12 at 3:15 pm

Doug,

It appears to me that you are not willing to see that when a institution has to pay the government for something they choose not to do based on religious objections, you don’t consider that a fine.

Such an assertion is flatly ridiculous on its face.

“Go against your beliefs or pay us a fine” is not a choice at all.

The true answer is to let those who object to being forced to do something or pay a fine to swim in the freedom of market choice and freedom of association. We should allow them to practice their religion and beliefs as they see fit in accordance with the First Amendment.

You aren’t against that, are you?

21 gitarcarver 01.25.12 at 3:22 pm

And just so we are clear Doug, your so called “choice” the government is trying to foist on these institutions is “go against your religious and moral convictions or pay so others can against your moral and religious convictions.”

The institutions should not have to provide or fund that which is against their religious and moral beliefs.

22 Doug Indeap 01.26.12 at 2:33 am

gitarcarver,

You seem to suppose that we’re talking about the employers’ constitutionally protected “rights” or “freedom of religion.” We’re not. As explained in my initial comment, the law establishes that the government cannot enact laws specifically aimed at a particular religion (which would be regarded a constraint on religious liberty contrary to the First Amendment), but can enact laws generally applicable to everyone or at least broad classes of people (e.g., laws concerning traffic, pollution, taxes, contracts, fraud, negligence, crimes, discrimination, employment, and on and on) and can require everyone, including those who may object on religious grounds, to abide by them. Were it otherwise and people could opt out of this or that law with the excuse that their religion requires or allows it, the government and the rule of law could hardly operate. Thus, the government lawfully can forbid discrimination against specified people and apply that law even to those who say their religion allows or requires them to discriminate.

What we’re talking about now is whether and to what extent the government should, as a matter of policy, choose to accommodate conscientious objectors by fashioning the law so as to avoid or minimize the prospect that they may be forced to act contrary to their beliefs. The government is under no legal obligation to do so.

Here, the law does not force anyone to undergo or accept any medical services, such as abortion or contraception. Nor does it force anyone to provide such services to others. Nor does it force anyone even to provide health plans that afford such services to those who want them. The law allows those with conscientious objections to such services simply to pay money (assessments) to the government. Period. Whew! Success! Conscientious objection avoided. No one is forced to act contrary to their beliefs–unless someone argues, I suppose, that their religion opposes paying money to the government (in which case, I think they are out of luck, as no government is going to let people excuse themselves from paying assessments, taxes, and such with the excuse their religion allows or requires it). All of us pay the government money (that is how it works) and, I dare say, nearly all of us could point to one or more things that the government does that we find objectionable, even immoral; if that alone sufficed to justify each of us to refuse to pay money to the government, well . . . you see that would pretty much be the end of it. So, no, the government cannot and should not go that far to accommodate the ethical qualms of those who don’t like this or that law or government action.

23 Ron Miller 01.26.12 at 10:07 am

Yes, the “government lawfully can forbid discrimination against specified people and apply that law even to those who say their religion allows or requires them to discriminate.” No doubt. Do I think it would be a better play – on this one – to let the church do what it thinks is best without interference? Yes.

24 gitarcarver 01.26.12 at 10:34 am

Doug,

Contrary to your assertion, the law has worked just fine for the last 230+ years while recognizing the government cannot infringe on the rights of people to practice a held and established religious belief.

As an employer cannot compel a person to do something against their religious beliefs, are you saying the government should not be held to the same standard as the other institutions?

You keep trying to say there is no problem with the institution failing to cover certain parts of the mandated care simply because they can not provide the care and then pay a fine.

What you fail to realize is that is not a solution. It puts the institutions in the unconscionable and unConstitutional position of being forced to do something against their religious beliefs or paying for someone else to do something against their religious beliefs. Either way the institution is forced to act in a manner that is contrary to their deeply held, well established and widely recognized religious beliefs.

If the government can do that, then there is no limit to what the government can do in forcing people of faith to go against their religious beliefs.

25 Doug Indeap 01.28.12 at 2:20 am

gitarcarver,

You ask: “As an employer cannot compel a person to do something against their religious beliefs, are you saying the government should not be held to the same standard as the other institutions?”

I answer: Apples and oranges. As noted above, here is the law under the First Amendment as explained by the courts: The First Amendment precludes the government from enacting and implementing a law aiming at a particular religion, but DOES NOT preclude the government from enacting a law generally applicable to everyone and enforcing that law on everyone, INCLUDING THOSE WHO MAY OBJECT ON RELIGIOUS GROUNDS. So the answer its “yes,” the government can enforce the law’s anti-discrimination provisions against even those with religious objections.

The only question we are now discussing is whether the government ought, as a favor, provide an exemption or otherwise adjust the law so conscientious objectors are not obligated to act contrary to their beliefs. The government sometimes does this if it can do so without compromising the primary purposes of the law. Here, my point is that there is no need for a special exemption because the law already provides conscientious objectors with a way to both follow the law (i.e., refrain from offering health plans and pay assessment instead) and not act contrary to their beliefs.

Some, though, are working themselves into a lather in the mistaken belief that the law forces employers to do something contrary to their religious beliefs.

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