Notre Dame is suing the government on the HHS mandate... and that's fine by me

The Catholic Church's displeasure with the HHS contraceptive mandate is common knowledge, so it is no surprise that the University of Notre Dame--"where the Catholic Church does its thinking"--is filing a lawsuit opposing it.  Regular readers of this blog might be expecting me to get huffy at this point and start arguing about how wrong the whole thing is, but, readers, prepare to be surprised.  I am totally okay with the lawsuit, and the reason is simple: the lawsuit is against the finalized January rule, which includes none of the compromises I think make the HHS mandate acceptable.  The compromise rules are still in the "open to public comment" phase through June, and, as Jenkins stated in his email to ND:

Although I do not question the good intentions and sincerity of all involved in these discussions, progress has not been encouraging and an announcement seeking comments on how to structure any accommodation (HHS Advanced Notification of Proposed Rule Making on preventative services policy, March 16, 2012) provides little in the way of a specific, substantive proposal or a definite timeline for resolution.   Moreover, the process laid out in this announcement will last months, making it impossible for us to plan for and implement any changes to our health plans by the government-mandated deadlines

Okay, so I do take issue with the notion that there's little in the way of a specific substantive proposal in the March 16th public comment document.  I've read it, and it is tediously specific.  It isn't the full exemption I suspect the University is gunning for, but I think it represents a morally valid compromise because it incorporates all the stuff I've talked about in my billion other posts on the subject.  Since the University only has a year to comply, and there's no sure reason to believe that the accommodations will be finalized by that time, it is in the best interests of the University and of religious freedom writ large to sue and at least obtain a stay until accommodations can be implemented.

Also, I think that the lawsuit could clear up some interesting muddles in the area of religious freedom.  I rather suspect that in this case the right of people to privacy regarding their sex lives will trump the rights of religious organizations to force their agenda on non-conforming individuals if this makes it to a high court.

HHS contraceptive mandate debate: summarized

I just got asked for a summary of the HHS contraceptive mandate debate.  I've written quite a bit on the topic previously, but since the situation (and my understanding of it) evolved over time, I thought it would be worthwhile to pull together my previous posts and some final commentary.  It's worth noting that while the Obama Administration and USCCB seem committed to their final stances, the rules are open for public comment through June, and will only be finalized in August.

The mandate

As part of the Affordable Care Act, all health insurance plans are required to cover preventative care without co-pay, but the definition of such care was left to the executive branch.  On the recommendation of the National Academy of Sciences, the Obama Administration included birth control--in particular female birth control, like the pill--in preventative care.  This means that all insurers must cover contraceptives without co-pay. The full text of the most up-to-date proposal for the mandate can be found here: https://www.federalregister.gov/articles/2012/03/21/2012-6689/certain-preventive-services-under-the-affordable-care-act

The objection

Catholic institutions objected on the grounds that contraception is against the teachings of the Catholic Church.  They felt it a breach of religious freedom that they were required to pay for products the primary use of which they considered to be immoral.  As the Obama Administration has responded to this objection the complaints have changed.  The most recent statements by the USCCB can be found here: http://www.usccb.org/issues-and-action/religious-liberty/conscience-protection/

The response

The administration, gradually, made the following adjustments/clarifications to address the conscientious objections:

1. The mandate only applies to non-Church organizations, such as Hospitals, Charities, and Schools.  Parishes and other institutions who primarily hire and serve Catholics (or people of other objecting faiths) are exempt.
2. Insurance organizations must not charge the insuring institution for additional contraceptive coverage.
3. For self-insured institutions (most large catholic organizations), the cost of the contraceptive coverage would be born in full by an external entity, rather than by the institution itself.
4. (A clarification) The cost of insurance plans with full contraceptive coverage is actually lower than the cost of insurance plans without full contraceptive coverage.

Some links to articles on the subject

The status of similar mandates already imposed by individual states.

A pretty up-to-date summary of the issues by a news source.

And another article

And some more coverage

Statement by the USCCB (Catholic Bishops)

The most up to date formal proposal (a difficult read)

My thoughts

Since no Catholic institution will have to pay for contraceptive coverage (free from insurers, and free from insurance managers for self-insured institutions), there is no violation of conscience.  Since US law recognizes rights of reproductive freedom and privacy, allowing institutions to inspect employees' sexual practices in the provisioning of healthcare (for instance to cover the pill for ovarian cyst treatment but not contraception) is arguably a violation of employee rights.  And since I conceive religious freedom as essentially individual rather than institutional and no individual is coerced by this law, I can find no valid religious-freedom argument against it.  The case is further undermined by the governments subsidy of health insurance: taking the government's subsidy means taking the strings attached too.  I do think that it might be reasonable to fine non-compliant institutions the exact amount of government subsidy as another means of exemption, but even that butts up against employee rights in an uncomfortable way.

My previous thoughts (in chronological order)

These kind of shift around as the situation and my view of it shifts, but the in series they follow all the important points of argument, and the comments often include useful insights or counter-arguments.

1. My initial take

2. Clarifications and a look at some more nuanced objections

3. Some commentary from a philosophy of government/legal perspective

4. A little summary of how things looked after the Obama administration made response 3 

And just one more thing (still contraceptives)

The key question about whether Catholics are harmed by the contraceptive mandate is whether they are being asked to do something immoral.  I don't think they are.  The key questions about whether religious freedom is harmed by the contraceptive mandate are:
1. Is the mandate objectionable to some on the grounds of faith?
2. Is there a legitimate federal interest in overriding these objections (as in prohibitions on human sacrifice or (perhaps less legitimately) polygamy)?

It's clear that the answer to 1 is yes, but it's not clear that the answer to 2 is no.  The federal government heavily subsidizes employer provided healthcare, so one might reasonably think that if you take the subsidies you have to take the strings that come with them.  Furthermore, it seems possible that there's a legitimate federal interest in reducing healthcare costs, and perhaps even a right to reproductive freedom to be protected.  More below the fold.

American Plutocracy

Basically, our laws and political structure give hilariously large amounts of power and protection to the wealthy.  This seems like a problem, because the vast majority of people aren't, you know, wealthy, and also because the wealthy already have a lot going for them without getting any help or special treatment.  I talked about this with respect to our tax code last post, but it applies in all sorts of venues.  Let's talk about them now:

1. Taxes - been here before but it's worth saying again.  The rich have an enormous advantage when it comes to taking advantage of tax exemptions.  Corporations (which are getting more and more like extremely wealthy people every court decision) are the most egregious example of this, with many "American" companies paying virtually no taxes as a result of complex accounting structures and multinational presences. All this made possible by complex tax codes and armies of lawyers and accountants.

2. Civil and Criminal cases - Legal fees make basically everything about the courtroom experience farcically favorable to the wealthy.  This is most awful in civil suits, where discrepancies in wealth lead to major corporations being able to bully people into settling cases that, given equal means, would assuredly go to court.  Recent examples: the GeoHotz fiasco, or any RIAA suit.  It's also pretty bad in criminal courts, where rich people have a great deal more access to effective legal council (there are public defenders, even really good ones, but that's a mixed bag), and can much more easily avoid the painful side effects of criminal suits because they can afford bail.  It's awful just how much time innocent poor people spend in prison waiting for their trial merely because they can't afford bail.  Likewise, rich people suffer significantly less from tickets and other fines and penalties, so they have much less incentive to obey laws whose violation results in such penalties.  All of this is before we even consider things like cronyism or bribery which are at least theoretically illegal.

3. Political Influence - I just recently was reading about a dinner party fundraiser hosted by the Obama campaign.  Tickets were going for 35,800 dollars.  For that price you got to eat and hobnob with the President of the United States, with only 60 other people around.  While I'm sure Obama has a fairly well established set of political views, it certainly can't hurt the agendas of the dinner guests to have a chance to chat with him.  If you consider the fact that all of the fund raising dinners, charity drives, and donation things that occur in the upper echelon of politics are attended more or less exclusively by people able to drop 35K on a dinner party then you can probably pretty quickly recognize why politicians might favor the agendas of the very wealthy.  It's almost an accident at this point, the very wealthy are the only people they're really hanging out and chatting with; how could they be expected to favor anyone else?  It get's a lot less accidental when you look at things like corporate giving and campaign donations and the like.  Money buys you media time, which gives you a disproportionately large voice in the public arena.  All of this rather handily explains items 1 and 2 in this list.  Turns out of wealth gives you a bigger voice in the making of laws, the laws will grow in favor of you.  I bet we are all surprised by this.