More on Contraceptive Coverage Laws and the Catholic Church

Posted: February 4th, 2012 | Author: | Filed under: Faith, Personal | Tags: , , , , | Comments Off on More on Contraceptive Coverage Laws and the Catholic Church

So, I posted my initial thoughts on this topic in a post here as my thoughts on the topic began to gell. I also participated in a discussion on this topic in posts on Fr. Christian’s blog here and here. I also went back and read the actual rule from last August. (The January announcement was simply that they weren’t going to change the religious exemption portion of the regulation, but would give religious employers an extra year to comply.) As I read the rule, I noticed it referenced existing state laws requiring contraceptive coverage. And that piqued my interest, so I broadened my research. The things I found were … interesting.

First, I found a site that collected information on the states that require contraceptive coverage. In short, over half of US states already require some form of contraceptive coverage, many of them for a decade or more. Many of them have some form of religious exemption. Some of them have no exemption. It’s when I began reading the state laws that I noticed they tended to use very similar language when they did provide a religious exemption. Some of them even cited a specific definition from the U.S.C. So I looked up that definition. It’s in 26 U.S.C. section 3121(w)(3)(A) and (B).

(3) Definitions

(A) For purposes of this subsection, the term “church” means a church, a convention or association of churches, or an elementary or secondary school which is controlled, operated, or principally supported by a church or by a convention or association of churches.

(B) For purposes of this subsection, the term “qualified church-controlled organization” means any church-controlled tax-exempt organization described in section 501 (c)(3), other than an organization which—

(i) offers goods, services, or facilities for sale, other than on an incidental basis, to the general public, other than goods, services, or facilities which are sold at a nominal charge which is substantially less than the cost of providing such goods, services, or facilities; and
(ii) normally receives more than 25 percent of its support from either

(I) governmental sources, or
(II) receipts from admissions, sales of merchandise, performance of services, or furnishing of facilities, in activities which are not unrelated trades or businesses, or both.

That’s actually very similar, if not identical, to the definition for religious exemption used in the HHS regulation. Notably, there’s no way a hospital or a university could meet the criteria for section B.

What does this mean? Well, basically it means that HHS was stating a fact when they said in the rule that the definition used was the one already in use in many of the states that required contraceptive coverage and allowed a religious exemption. Apparently Catholic hospitals and universities have continued to function in these different states just as they do in countries that provide contraceptive coverage to their citizens. I don’t recall hearing any outrage over these various state laws expressed. That doesn’t mean there wasn’t any, but I don’t recall it and haven’t found any evidence of it. I also haven’t yet discovered if there were any legal challenges. However, if there were, given that these laws are still standing, they must have been unsuccessful. The HHS rule is neither unprecedented nor new. It would seem to have a pretty solid legal foundation.

Speaking the truth is important. And speaking the truth means more than just avoiding outright lies. It often means speaking the whole truth and not just the parts that serve your goals. It means expressing those truths in a way that avoids manipulation, distortion, and propaganda. That’s one of the reasons that, when I discuss things, I try really hard to provide the sources that are forming my opinions so that others can read them, check what I’m saying, and form their own opinions.

The deeper I’ve explored this issue the more evidence I’ve found that the Obama administration has simply spoken and written truth. The US Catholic Bishops? I’m not so sure. Why are they outraged at this rule and not the many other long-standing state laws that are either substantially the same or even more restrictive than the HHS rule? Why are they speaking as though this sort of requirement was something  new and radical when it isn’t? Those are some of the questions that begin to work their way through my mind.

The Bishops may be completely innocent of any intent toward propaganda and utterly sincere in their protestations. But when I keep finding things that aren’t mentioned by them in the discussion, it makes me wonder. I tend to be suspicious of institutions, power structures, and people who wield power anyway. And I’m sensitive, perhaps overly sensitive, to manipulation. My childhood was not innocent and I learned a lot of lessons that perhaps a child shouldn’t have to learn. I want to think the best of people, but there’s a part of me that has a very difficult time actually doing so.

Perhaps someone reading this will see through a different lens and offer a more positive perspective.

Update: And this is an EEOC decision from all the way back in 2000 regarding contraceptive coverage. It also references a Pregnancy Discrimination Act which apparently at that time had a Supreme Court decision supporting it. (I haven’t found or read the decision yet.) It does help explain how those states that passed laws allowing no religious exemption at all were able to do so.


Health Care Reform and the Catholic Church

Posted: February 3rd, 2012 | Author: | Filed under: Faith, Personal | Tags: , , | 10 Comments »

I am not Catholic, though I have friends and family who are, many quite devout. I attended a Catholic school as a non-Catholic for three years growing up in Houston. And my older son was born in a Catholic hospital founded by the Daughters of Charity. I’ve also had friends in health care in one capacity or another who worked for the local Catholic hospital system (which also runs our public hospital in a public/private affiliation) as non-Catholics.

I’ve listened to the recent uproar over the new regulations associated with the implementation of the Affordable Care Act (ACA) — specifically requiring coverage for contraception and sterilization procedures — and I’ve read many of the posts and statements about it. I responded to Fr. Christian’s post on the subject last night and overnight I believe a way to put my thoughts and reactions in perspective gelled in my mind. I’m going to attempt to outline those thoughts in this post.

I want to start by looking at health care in the rest of the world, or at least the industrialized world and many nations we would consider somewhere between third world and first world. Basically, every such nation other than the United States already provides a form of universal access to health care for their citizens. Because we do not, we have one of the worst health care systems in the industrialized world by almost every measure — including cost, access, and results. I know many people suffer the delusion that that’s not the case, but the facts speak for themselves. We spend double per capita than the next country on the list. But we get no benefit from that extra expenditure. Indeed, we sit somewhere toward the bottom in virtually every measure of health care results. Moreover, the expenditures per capita are actually skewed since almost a sixth of our population lacks meaningful access to our health care system. And many of the rest of us are one serious accident or illness away from crushing debt and perhaps losing the job and its insurance that allows us access to the health care system. Most of us are in a more precarious and vulnerable position than we are usually willing to admit. We have access to our health care system currently, but we could lose that access in a heartbeat.

So how does the rest of the world do it? By and large, they employ variations of three basic approaches. In some nations, the government runs the health care system directly. Britain’s National Health Service (NHS) is an example of that approach. The government runs the clinics and hospitals and employes the doctors, nurses, and other health care professionals directly. It’s funded through individual and employer taxes. Other nations employ a single payer model. Canada’s system is an example of that approach. Employers and employees again fund the system through taxes, but the government does not directly operate the facilities or employ the health care professionals. Instead, they operate like a single, large insurer and pay the providers for covered care. Finally, some countries, notably the Swiss, combine a tightly regulated national exchange of non-profit private insurers with a mandate for all citizens to purchase insurance and subsidies for those at the lower end of the economic spectrum. And again, both individuals and employers help fund the system, both directly through premiums and indirectly through taxes.

There are many variations of the above systems, but pretty much every other industrialized nation’s health care system employs one of them. Compare that to the United States. We have a segment of our population, veterans, served by a government operated health care system. The VA operates hospitals, employs health care professionals, and provides health care directly to eligible veterans. Then we have another segment of our population, senior citizens, served by a government-provided insurance program similar to that employed by single payer nations. We call that program Medicare. It’s funded by a payroll tax shared by employees and employers and is the mandatory single payer (though other insurance can be used as a secondary payer to supplement it) for its target population. (Medicaid is a safety net government insurer program as well, though it is administered at the state rather than the national level with predictable confusion and mixed results.)

Then we have had two categories that other industrialized nations do not have. The first, and the linchpin of the health care system for most of us, is employer-provided insurance. That’s essentially a hidden tax on employers in the global economy and it’s highly variable and inconsistent. It’s also unreliable when people can lose their job or otherwise have to change jobs. Moreover, as we deregulated insurance companies in the eighties and nineties, the vast majority of insurance companies converted from non-profit to for-profit status. Medical loss (the ratio of premiums collected actually spent on health care) plummeted from 95% to something on the order of 70% and costs to employees and employers skyrocketed. Fortunately, our regulations do still prohibit insurance policies for large companies from excluding pre-existing conditions. And they have to cover all eligible employees in the pool. So those of us fortunate enough to work for large employers, most of whom have continued to pay the hidden tax to provide insurance to their employees as a necessary cost of doing business in the US, have been somewhat shielded from the most predatory aspects of the for-profit health insurance industry we created in the nineties. Still, no other industrialized nation dumps this burden on its largest employers instead of treating it as one that should be shared by the nation as a whole.

The other huge category that does not exist in other industrialized nations is, of course, the uninsured and the under-insured. Those are all the people who do not qualify for Medicare or Medicaid, who are not eligible for care from the VA, and who do not work for a large employer offering subsidized and affordable health insurance. That’s something on the order of 40 million people uninsured and tens of millions more who are under-insured. And frankly, it’s a deplorable and utterly amoral situation.

The Affordable Care Act (ACA) does not actually reform or rationalize our overall hodge-podge of a system. Personally, I wish it had. I think we would be much better off if we simply picked one of the approaches and applied it across the board. But politically that’s clearly not possible. We’re an irrational nation with irrational politics. Even the process of passing the legislation was a national lampoon. Basically, the Democrats threw in the towel and agreed to adopt the long-standing (as in decades) Republican proposal for health care reform. The long-standing Democratic proposal had been some variation of Medicare for everyone. They basically gave up and decided any reform, even the Republican proposal, was better than no reform. Instead of claiming victory, though, the GOP went ballistic. (And that was one of the more bizarre turns in this whole process.)

But that’s beside the point now. The ACA is what we have and we appear fortunate to have even it, flaws and all. Our only option at this point is to figure out how to make our hodge-podge of a system work more effectively. The core of the ACA uses something similar to the Swiss approach to establish health insurance exchanges for the large group of Americans in the last category — the self-employed, or those employed by a small business. Unlike Switzerland, these exchanges will be state based instead of national. And the insurers will be for-profit rather than non-profit. Both of those are pretty severe negatives. Since Medicare recipients, veterans eligible for VA care, Medicaid recipients, and those employed by large organizations are excluded from the pools of those insured by the exchanges, the overall pool is already smaller. When you further divide it on a state by state basis, the pool of insured, and thus the shared risk, becomes even smaller. Non-profit insurance companies typically operate at a 95% or greater medical loss ratio. So by adding profit margins to the exchanges, we are simply increasing the costs for no added benefit. However, the ACA does at least begin to reform and regulate that private, for-profit insurance industry. Personally, I think prohibiting denial of insurance for pre-existing conditions, rescission, and mandating 80% medical loss levels are woefully inadequate and minimal measures. But they certainly improve what we currently have in this segment of our population.

That’s the background, and it’s only in that context that we can discuss the regulations implementing the ACA and the reaction to those regulations by the Catholic Church. The first thing I want to note is the structure of the ACA itself. As a political necessity, it leaves the large employer provided health care portion of our framework largely untouched. The only thing it does is try to make sure that all citizens, whichever part of our system covers them, have access to the same basic level of health care. That’s essentially all that this regulation does. If the Catholic Church employed no-one but Catholics, perhaps that would be a reason for an exception. (In fact, I believe the regulation provides for such an exception in those institutions that do meet that criteria.) But that’s not the case and, in fact, some of the Catholic institutions, at least, couldn’t continue to function if they had to operate under such a restriction. The hospitals, in particular, have to be able to hire non-Catholics to function.

The next thing I note is that the Catholic Church is a huge global organization with established institutions, including hospitals and schools, around the world. That’s only one facet of the Church, of course, but it is an important one for this discussion. Many of the nations in which they operate those institutions have some form of universal access health system that includes access to contraception and sterilization procedures. As an employer in those nations, the Catholic Church participates in those systems. (At least, I’ve never heard anything to the contrary.) Basically, that places them one step removed. In those countries they don’t directly provide coverage which insures and provides access to such services, but they pay whatever is required of employers into the system which then does provide such access. Since we chose to leave the large employer-based framework in place, in our system we end up with this regulation.

Frankly, I think the Church is making a rather fine distinction. It’s OK to participate as an employer in a national health care system that provides access to those procedures, but it’s not OK to provide the health insurance policy directly as a large employer in our system under the ACA. That’s basically the way I perceive the position of the Church on this issue. The regulation doesn’t require that the Church provide contraception or conduct sterilization procedures. It simply requires that, as a large employer, it provide its employees access to health insurance that does cover them, leaving use of that part of their coverage to the individual conscience of the employee.

But set that aside. If it’s truly such a matter of conscience for the Church, then it has the option under the ACA to stop providing health insurance to its employees in 2014. They will then purchase health insurance from the state exchanges established by the ACA. And the Church will pay a penalty/tax for those employees who require subsidies. (There are various ways of calculating it.) That will place the Church at the same remove from the coverage as they are in some of the other industrialized nations. As far as I can tell, that would resolve its current moral crisis on the matter. Of course, if the Church chooses to take that step, it could make them less attractive as an employer, which could have a negative impact on its ability to perform the central mission of its various institutions. But if it’s such an important moral stand, I suppose that’s a price they have to be willing to pay. I agree it would be more equitable if we had one uniform system in which all employers and citizens participated, but we aren’t going to get such a system. The ACA is what we have and we were lucky to even get it.

Personally, I don’t share the Church’s beliefs on contraception or sterilization, but I do try to respect them, especially in the few Catholics I know who actively practice them. (And honestly I know more Catholics who don’t than do.) However, in this case, I think they are making a mountain out of a molehill. And it’s probably because of my two decades of association with American evangelicals, but I tend to get uncomfortable when Christian groups start clamoring about their “rights.” The heart of Christianity seems to me to include sacrifice, love, self-denial, and service in pursuit of union with Christ more than it does individual or organizational rights. I favor individual freedom, of course. We tend to end up in bondage to sin and death, but God offers us true freedom in Christ. Individual civil liberties treat us with something of the same dignity that God does. But Christianity isn’t much about “rights.” Certainly Christ did not assert his rights.

As I wrote on Fr. Christian’s blog, it will ultimately be up to the courts to decide the fate of the regulation. That’s their role. But the way the regulation is shaped, it may well stand up to the strict scrutiny standard required in such situations. It’s hardly a given that it won’t. Besides, if the government didn’t believe they had a good case for the regulation, they wouldn’t have proposed it. It’s not a black and white case and I can’t predict where the courts will land. I don’t think anyone can.

Does anyone have any other thoughts or think I missed anything? I tried to be pretty comprehensive in this post since it’s a complex issue, but it’s so complex that it’s hard to catch every nuance.