The Obama administration’s latest proposals to revise the federal contraception mandate have been significantly misunderstood and misrepresented, said a legal scholar.
Carrie Severino, chief counsel at the Judicial Crisis Network and a former law clerk for Supreme Court Justice Clarence Thomas, said the media confusion is “not surprising,” given that the administration released the 80-page document on a Friday afternoon, leaving just a few hours for journalists to scour it and write a report.
“The explanation was far from clear,” she told CNA, and its complexity has left many people unsure of the proposal's exact details.
However, Severino also believes that “some of the confusion is purposely being perpetrated” by groups such as Catholics United, an organization that has criticized the U.S. bishops for their work to defend religious liberty.
On Feb. 1, the Obama administration announced its intent to modify a federal mandate that requires employers to offer health insurance covering contraception, sterilization and early abortion-inducing drugs. The mandate has been heavily controversial since it was first announced and is currently the subject of numerous lawsuits.
James Salt, executive director of Catholics United, hailed the Feb. 1 announcement as a “victory” for the Catholic Church and said that the Obama administration should be praised for “alleviating the Church’s concerns.”
Salt argued that “sensible Americans already know” that “religious identity is protected and cherished in this country,” while it is simply a “divisive right-wing myth that religious liberty is somehow attacked” through the mandate.
Catholics United, which describes itself as a “non-partisan organization dedicated to promoting the message of justice and the common good found at the heart of the Catholic Social Tradition,” has been surrounded in controversy numerous times in recent years over accusations of left-leaning political activism rather than a true representation of Catholic teachings.
The organization has been repeatedly criticized for failing to speak out against the Obama administration’s heavy support for taxpayer-funded abortion.
In 2008, Bill Donahue, president of the Catholic League, charged that Catholics United was tied to left-wing billionaire George Soros. Catholics United has denied the connection.
The group also created a “Catholics for Sebelius” website to promote the Obama administration’s nomination of Kathleen Sebelius, whom Salt had previously worked for.
In addition to her adamant promotion of abortion while governor of Kansas, Sebelius has come under fire as Secretary of Health and Human Services for her key role in issuing the contraception mandate.
Catholics United refused to speak out against the mandate, even after its initial release, when Catholics across the political spectrum united in opposition to the regulation, calling it extreme and untenable.
“They’re not, obviously, speaking on behalf of the Catholic Church,” said Severino; however, their statement may mislead media outlets that are not familiar with the Church’s structure.
KMID, an ABC-affiliate in Midland, Texas, cited Catholics United in a news story claiming that “(t)he Catholic church is rejoicing” over the mandate revision.
In reality, no official Church body has given a formal response to the proposal. The U.S. Conference of Catholic Bishops has said that it is analyzing the details of the new announcement before issuing a response.
Initial actions from leaders including Archbishop Charles J. Chaput of Philadelphia and Bishop Kevin J. Farrell of Dallas indicated that the proposed revisions would not do enough to protect religious liberty.
Washington Post columnist E.J. Dionne Jr., also applauded the announcement as a “victory” that the bishops should accept as “an elegant fix.”
“The church made a mistake in arguing its case on the grounds of ‘religious liberty,’” Dionne argued in a Feb. 1 opinion article. He contended that by doing so, “the bishops implied that the freedom not to pay for birth control rose to the same level as, say, the freedom to worship or to preach the faith.”
However, Severino responded, Dionne’s examples and the bishop’s complaints are simply “two aspects of religious freedom.”
Infringements on the ability to worship or preach may be more severe than the current restrictions, she said, but “either way, it’s still a violation of religious freedom.”
She explained that in the debates over the mandate, the government has attempted to “redefine the free exercise clause” to apply only in limited situations and not in business decisions.
But many religions – including Catholicism – teach that you cannot leave your faith at the door, she said. Instead, “you have to take it out into the world.”
Rather than an overhaul of the initial policy, Severino said, the document released by the Obama administration offers “basically nothing new.”
She observed that D.C. appeals court ruled on Dec. 18 that the Obama administration must give an update on the mandate revision process every 60 days. This new announcement is simply the next step in that process, offering more details on the administration’s last announcement from March 2012.
In keeping with the previous notice last year, the mandate still splits religious employers into two categories – those that are completely exempt from the requirements and those that are not exempt but are instead granted an “accommodation.”
The full exemption still applies only to a small number of employers, Severino said. While the new announcement simplifies the requirements for this category, it does little to expand it.
The government has said that it will drop previous provisions requiring exempt entities to exist for the purpose of inculcating religious values and to serve and employee primarily members of their own faith.
It will instead rely upon a section of the Internal Revenue Code referring to “churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order.”
This “would primarily include churches, other houses of worship, and their affiliated organizations,” the administration said.
Severino explained that this would cover soup kitchens and charities associated with a specific parish congregation or house of worship, but it would not extend to religious schools, hospitals or charities that are independently run.
The government even says in its document that it does not anticipate that the changes will “actually expand the number of people that are covered” in any significant way, she noted.
As for the “accommodation” offered to non-exempt religious groups, Severino said, it is “the same accounting gimmick” that drew criticism when it was put forward in the advance notice of proposed rulemaking last March.
Under the government’s proposal, employees of such religious groups would receive “no-cost contraceptive coverage through separate individual health insurance policies” from their insurance issuer.
This coverage would be free, the government said, because contraception leads to fewer childbirth costs and offers women “tremendous health benefits” that decrease their overall health care costs.
The idea that contraceptives can be offered free of cost was rejected by pharmacy directors in a national survey shortly after the accommodation was initially announced last year.
Furthermore, Severino observed, if contraception could really be offered for free and truly reduced other health costs due to the benefits it provided, insurance companies would already be offering such coverage without cost.
Because many religious groups believe they will still ultimately be paying for the contraceptive coverage through their premium payments, they find the accommodation unacceptable, she said, adding that “the president doesn’t get to be the theologian in chief” and decide what constitutes an acceptable level of material cooperation for religious groups.
In addition, she explained, the administration offers no relief at all to non-religious groups that object to the mandate, such as for-profit companies and non-profit pro-life groups that do not associate with a specific religion.
“It only addresses a very narrow group,” she said.