New ACA Guidelines Address Religious Hissy Fits Over Contraception

Yesterday, the Obama administration released new and improved guidelines concerning how free contraception under the Affordable Care Act is handled for religious organizations or organizations which serve a broader community but are

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Yesterday, the Obama administration released new and improved guidelines concerning how free contraception under the Affordable Care Act is handled for religious organizations or organizations which serve a broader community but are church-sponsored.

On first blush, they appeared to be a cave to the Catholic bishops and screaming tea party gangs, but in practice, they're not that much different than the other ones were, as Ezra Klein explained on The Last Word Friday night.

For women, nothing changes. If they're employed by a religious institution or non-profit organization with religious purposes, their employer-provided coverage will not cover birth control, but they will receive a separate card which will cover it to the minimum standards required under the Affordable Care Act and regulations.

But if you fundamentally have a problem with the hissy fit they threw which takes us to this place, then yes, it's a compromise. Charles Pierce at Esquire:

Whatever you may thing of the compromises that were necessary to get the Affordable Care Act passed, the very nature of them, and the sheer number of them, has produced a mechanism uniquely vulnerable to political sabotage. This extended hissy fit is a very good example. The president made one compromise before he was re-elected, even though he didn't have to, and then he got re-elected with a whopping gender gap because he stood up for the right of ladies to manage their own ladyparts free from Bible-banging interference. Now, with absolutely nothing to lose, we have another compromise, this one open to all sorts of new mischief no matter how often we are told that the new deal merely "simplifies" the problem and brings the act into more complete compliance with IRS guidelines. This, of course, presumes there was a "problem" to begin with, and not just an ensemble hissy fit among meddling clerics and theocratic pests.

The big change would be that "a house of worship would not be excluded from the exemption because, for example, it provides charitable social services to persons of different religious faiths or employs persons of different religious faiths," according to the fact sheet. According to HHS, the change is meant to codify the intent of last year's rules, and is not expected to "expand the universe of employer plans that would qualify for the exemption."

Except, of course, that it will expand that universe in practice rather dramatically. It certainly seems to expand the universe of "religiously affiliated organizations," at least for the purposes of denying contraceptive coverage. More to the point, the individual consciences of the employees -- our Presbyterian charpersons -- are not accounted for at all. What we have here are regulations that codify the primacy of the employer's conscience over the consciences of the people who work for him, especially when we consider the institutions under discussion here.

The proposed rule would eliminate the need for such an entity to (via the HHS fact sheet): 1) have the inculcation of religious values as its purpose; 2) primarily employ persons who share its religious tenets; and 3) primarily serve persons who share its religious tenets.

These are loopholes you could slip St. Peter's through. In other words, to qualify for the religious exemption from the contraception mandate, an institution doesn't have to teach religion, hire the religious, or even serve much of a religious purpose, as far as that goes. And, in return, of course, the administration will be the beneficiary of the good will of those organizations with which it has tried to compromise.

It is the highlight in the second paragraph which concerns me most. Here's the problem. Pierce is absolutely 100 percent correct. I have absolutely no argument with what he says.

Our nation's theocrats, however, differ. And they've got billionaires with reasons that have very little to do with God and everything to do with profit funding their constitutional challenges to the Affordable Care Act. When the Supreme Court agreed to consider Liberty University's claim that the contraception provisions violate their religious freedom, that was a signal that the final rules had better cover all bases whether or not we're comfortable with how they're doing it, or we could see yet another situation where the entire ACA is challenged simply on this one provision.

That left the administration trying to thread the needle of maintaining access to contraception for all women, or risking it on principle in front of this Supreme Court. Which way would you have gone? While I'm less than thrilled that it validates some notion that our employers should have any control over our bodies, I'm actually relieved that they found a way to weave through that tiny needle eye to a place that will likely survive a Supreme Court challenge.

It is possible, by the way, that when this case is argued, the question of whether an employer has any right to dictate employees' health decisions will become part of it, but under the modified rules, it would seem that the argument is stronger for why any employer, religious or otherwise, shouldn't have a say because it actually removes employer discretion from the equation altogether, whether via an insured or self-insured plan.

On one level, I hate the hissy fit as much as anyone else. But on another, I would rather fight the battle on a different battleground than the Supreme Court.

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