Tuesday, February 14, 2012

HHS Mandates Rhetoric: Wading Through the Nonsense

The recent (and continuing) HHS mandate controversy has generated a great deal of nonsense, some to which I've felt compelled to respond, either due to its inaccuracy or lack of respect for the Catholic Church:

NY Times Gets It Wrong

Following Obama's offer for an accommodation for religious objections to the new HHS mandates on February 10th, the NY Times editor wrote that the whole uproar over the HHS mandates was "a phony crisis over 'religious liberty' engendered by the right".

No doubt, many Republican lawmakers who otherwise couldn't care less about the religious liberty of Catholics have, in just the last few weeks, picked up the cause only as a weapon to attack Obama. (And frankly, I've been very disappointed to see that something as fundamental as protecting religious liberty has fallen along partisan lines among politicians.)

But to say that the US bishops, along with many leaders of other religions, many of whom have come from across the political spectrum, who have been fighting the HHS mandates for the last six months (yes, the rules were first issued in August of last year, and were opposed immediately) are really just a part of some Republican conspiracy is so absurd that it would be comical if it wasn't so insulting. Because these claims are obviously false, the NY Times has shown itself to be either embarrassingly ignorant of the most basic details of one of the biggest stories of the year or to be purposefully misleading people.

In addition, the phrase "religious liberty" is in scare quotes, as though it is a euphemism invented and used only by those who were against the HHS mandates. Such mocking of the first and most important right in our Bill of Rights from supposedly one of what our country's foremost newspapers is itself greatly disconcerting.

The NY Times editor also wrote:
[I]t was dismaying to see the president lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution. Churches are given complete freedom by the Constitution to preach that birth control is immoral, but they have not been given the right to laws that would deprive their followers or employees of the right to disagree with that teaching.
The controversy is not about access to contraception but about who will be paying for it. Also, no one has asked for "laws that would deprive their followers or employees of the right to disagree with that teaching" - so not only is this a red herring, but it implies that someone has asked for such laws, which is false and therefore misleading.

But what's most disturbing here is that the editor has decided to collapse religious freedom into the freedom of speech. While the two freedoms are of course linked, they are distinct in our Bill of Rights and certainly very distinct in application. The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." The free exercise of religion is far more than being able to say what your religion teaches; it also includes being able to actually do what your religion teaches - which includes being able to do something as basic as run an organization with employees without being forced to violate your religion.

Playing Divide & Conquer Against the Church

In a headline on its website, CNN referred to the United States Conference of Catholic Bishops as a "Catholic group". I'm afraid the USCCB is not just some Catholic group but is the conference of the US bishops.

Quick lesson about the largest religion in the US and in the world: In the Catholic Church, bishops are successors of the Apostles, represent Jesus Himself to their flock, and are the teaching, sacramental, and governing head of their diocese. The Catholic Church isn't like an ethnic or cultural group that only has unofficial leaders insofar as they represent the beliefs or values of the group; the Catholic Church is a real institution with legitimate, ordained leaders who rightfully teach, guide, and govern their flock. To use an example, Sister Carol Keehan, CEO of the Catholic Health Association of the United States, may be an influential Catholic layperson, but the bishops are the rightful leaders and representatives of the Catholic religion.

Washington Post columnist E.J.Dionne, a self identified "liberal Catholic", made the same error in a recent column: "Some conservative Catholics still insist that the relief from regulation that Obama offered is not enough." Left out, or at least not given any sort of special mention among those who have rejected Obama's offer, are the ones whose judgement matters most in the matter, the bishops - who, given that their teaching on a wide range of issues that does not comport fully with either the Democratic or Republican party, cannot be seriously boxed in as politically conservative.

Referring to the USCCB as just another Catholic group attempts to undermine the authority of the bishops in the Church and thereby divide the Catholic bishops from the Catholic faithful.

Another attempt to divide Catholic faithful from their bishops was evident in the frequent use by the White House and the news media of a statistic that claimed that 98% of Catholic women use contraception. Aside from the fact that the statistic is bogus (although it's undeniable that many Catholics do break this particular teaching of the Church), and aside from the fact that most of the Church's moral teachings are broken at some point or another by most people (e.g. how many Catholics have lied before or have not seriously put into practice the Church's teaching concerning the poor?), and aside from the fact that the whole purpose of moral teaching is to make us better people - not to give affirmation that however we happen to be living already is just fine - its rhetorical use is clear: since so many laypeople don't listen to the bishops, the bishops can be sidelined.

Archbishop of NY Timothy Dolan,
also President of the USCCB
It was also apparent that such a political strategy was behind the fact that Obama secured support for his proposed accommodation from Catholic laypeople like Sister Carol Keehan and columnist E.J. Dionne before his announcement, while he only called Archbishop Timothy Dolan (president of the USCCB) the morning of the announcement to tell him that the announcement of an "accommodation" was coming, along with a little description of what the "accommodation" would be. The US Catholic bishops were given so few details before what was supposed to be an accommodation of their own Church was publicly announced that the initial press release of the USCCB after the announcement quoted Archbishop Timothy Dolan as saying: "While there may be an openness to respond to some of our concerns, we reserve judgment on the details until we have them." Several hours later, the USCCB issued a more thorough press release that rejected Obama's proposed accommodation, but it still noted: "We just received information about this proposal for the first time this morning; we were not consulted in advance. Some information we have is in writing and some is oral." It's clear that Obama was not intending to engage with the bishops.

Phil Lawler over at CatholicCulture.org also came to the same conclusion:
Now that Sister Keehan has endorsed the Obama “compromise” (along with Father Larry Snyder of Catholic Charities USA), the Obama administration can claim that many Catholics, including some who had originally opposed the plan, now see the wisdom of his ways. President Obama does not intend to persuade the American bishops to support his proposal; he intends to siphon off support for the bishops among American Catholic voters, driving a political wedge further into the country’s Catholic community.
No doubt, many Catholic faithful in the US openly and regularly dissent from their bishops as well as from the Pope - a sad testament to the state of the Church here in the US. But to exploit internal divisions in the Church for political gain is low.

The Rhetoric of Confusion

Also notice below the CNN headline that Obama's offer is referred to as "Obama's compromise", not as the "offer" that it really was. Many other news agencies reported Obama's offer in a similar fashion (e.g. Reuters: "Obama's compromise sought to accommodate religious organizations") Calling it a "compromise" implies that the parties with whom Obama had the disagreement have accepted it, even though the very article in which the phrase is being used is about how the US bishops have rejected it.

In other words, a compromise is a compromise only if both sides accept it as such. One side cannot declare something to be a compromise if the other side hasn't responded, much less if the other side has rejected the deal. To say that the deal is a compromise in such circumstances is a rhetorical tool to get the public to think that the controversy is over and that therefore any continued protest is unreasonable. It's like a politician publicly declaring victory in an election before the results are conclusive: it serves only to confuse and manipulate for one's own political advantage, not to accurately describe the situation. Of course, Obama used the word "accommodation", but the same problem remains: an accommodation is an accommodation only if the other side considers it to be an accommodation.

Although the bishops had led the charge against the HHS mandates and are the rightful leaders and representatives of the Catholic Church, Obama's offer was labeled a "compromise" and an "accommodation" before the bishops even had the details of what the offer was.

Other Nonsense

In a piece entitled "Catholic church demanding yet another financial advantage", Mario Salazar over at the Washington Times trotted out the old stereotype that the Catholic Church is really just in it for the money, and that in this case the Catholic Church is just trying to save a few bucks by not covering abortifacient drugs, sterilization procedures, and contraception.

Amanda Marcotte over at Slate's "XX Factor" section, a section that has the subtitle "What Women Really Think", wrote that the controversy has simply been "two solid weeks of Republicans rapidly escalating attacks on contraception access" that's been "all thinly disguised as concern for religious liberty". Again, as with the NY Times, she's either woefully ignorant or being intentionally deceitful of who has been fighting the HHS mandates (primarily religious leaders, led mostly by the US bishops - not Republican lawmakers), what the real concerns have been (yes, religious freedom is the primary concern), and how long it's been going on (6 months not 2 weeks).

The Bishops' Response

The USCCB explains why they have rejected Obama's proposed accommodation, in their press release responding to Obama's announcement of his proposed accommodation

The USCCB's Conscience Protection webpage

Currently, there is a great video on the homepage of the USCCB website of Archbishop Timothy Dolan responding to the White House

Other Responses

A letter rejecting Obama's proposed accommodation that's being circulated and signed by university professors, university presidents, and journalists (signed by 118 at my last count)

Obama to Face Lawsuit From Attorneys General Over Mandate

Several evangelical leaders reject Obama's "accommodation" as still not enough

An analysis of Obama's proposed accommodation: "President Obama, the Right Not to Do Wrong, and the Politics of Ruse and Delay"

13 comments:

  1. Referring to the USCCB as just another Catholic group attempts to undermine the authority of the bishops in the Church and thereby divide the Catholic bishops from the Catholic faithful.

    It is a very interesting question when it comes to the US. US political philosophy is deeply democratic. Many Protestants don't believe a leadership that is unelected is a legitimate leadership. Further many Catholics (in the ethnic / cultural sense) don't believe their leadership is legitimate.

    From a religious perspective the USCCB may have tremendous authority naturally irrespective of what the laity believe.

    From a secular American perspective the USCCB has authority over:
    a) property
    b) in so far as they are able to command the loyalty of the laity.

    In other words Obama, and most Protestants believe the USCCB do not have the natural authority you are granting them. They aren't subtly separating laity from the Bishops they are doing so quite openly, this notion of elected and chosen religious leaders was a key component of Protestantism from its inception.

    Bishops make pronouncements on politics all the time and are ignored. What was important about this incident was that Catholic voters, were united in support of the Bishops. Obama doesn't really care what the Bishops think, he cares what the voters think. Obama isn't exploiting divisions for political reasons he fundamentally disagrees that the Bishops that the sort of authority you grant them.

    and this gets to your second point

    In other words, a compromise is a compromise only if both sides accept it as such. One side cannot declare something to be a compromise if the other side hasn't responded

    The other side, has responded. Liberal and moderate Catholic voters now believe that the HHS mandate meets their objections. They no longer believe their religious freedom is being attacked. Other voters, like myself, who were supportive of the unified Catholic position, have taken a cue from that shift that this is no longer an issue of anti-Catholic and rather just a typical right/left debate on sex. If Joe Biden considered it a violation of conscience that carries weight.

    ____

    As an aside, I personally object to what the Catholic church is asking for now. I believe that religious affiliated insurance companies I think is bad policy. I don't see any benefit to financial intermediation being a religious function being offered broadly. If Catholic health insurance doesn't exist, at all I don't see that as a loss. Saying it can't be sold to employers broadly I don't see as terribly restrictive.

    I don't think it is unreasonable at all for the state to assert that if a Catholic hospital employees Jews, Muslims, Hindus and Protestants they must offer insurance products that are not run by Catholic religious institutions and thus fall under secular law.

    As an aside there does exist a mechanism in US law for companies that for whatever reason are simply unable to comply with labor law. It is called creating PEOing your employees. Essentially what Catholic institutions would do is have their employees work for a 3rd party which would be responsible for their salary, benefits, unemployment, disability.... They would still have the same reporting structure day to day, it is just that their checks would come from someone else. The Catholic institution would then pay a block amount for the entire cast of employees. And they would be out of the HR business entirely. The might find this saves them money because of the no HR department. Something like $25 / mo / head for a full service HR department for a large hospital would not be unusual, where the PEO makes most of their money from acting as insurance agent.

    ReplyDelete
    Replies
    1. ... which is still a shell game. We're paying someone else to do what we object to?

      In this, and in everything about this issue: Cui bono?

      Delete
    2. Yes and no. You are paying someone else and giving them full control to do right or wrong.

      For example when a Catholic institution gives money today to a fertile female employee there is a very high percentage change that some of that money is going to go towards contraception. They don't see paying her as immoral because she is the one decided to buy contraception not the institution. That is they've lost their agency.

      Similarly with a PEO. The Catholic institution is buying a block of labor not insurance so thus they don't have agency. They never picked nor were consulted about the details of the health plan. They don't administer it, and they are not involved.

      Delete
    3. But our insurers do not have have full control.

      Delete
    4. This comment has been removed by the author.

      Delete
    5. Ub --

      Insurers didn't have full control before this change in law. There are tens of thousands of pages of regulations in each states DOI that control what they could and could not do. The goal of the compromise was never to create a regulatory regime where a religious Catholic insurance company would have full control while providing insurance to secular institutions. At least for this moral argument the state's right to regulate insurance products is not in question.

      The PEO is not an insurance company (generally) itself. What is important from this Catholic position is that it removes agency from the church affiliated institution. It resolves the "being required to sanction a moral wrong" argument.

      Delete
    6. So instead of being accessory to sin one way, we are accessory to sin in another. You still do not enamor me.

      Delete
    7. The issue is not and cannot be accessory. The church itself is an accessory to countless sins. Every night an unmarried couple sneaks into a Catholic graveyard to make out. Every night a priest somewhere is laundering money using the donations. Every night a woman drawing salary from a Catholic institution uses that money to buy contraception.

      The question is proximate cause not accessory.

      Delete
    8. Three points:

      First, why continue to personalize this as a "Catholic" issue when Anglicans, Lutherans, Calvinists, Evangelicals, Baptists, Eastern Orthodox and even the Jews have climbed on board for the sake of religious liberties?

      Second, I think you and I are using ambiguous definition of the accessory to sin. Here's what accessory refers to, as I've said it, and here's where I was headed with it.

      Third, you seem to ignore that large Catholic charities --- notably EWTN, plaintiff in a major challenge to Sebelius --- have heretofore used the solution of being a self-insurer.

      Delete
  2. I found your blog through patrickvandapool.com. I liked it so much I linked to it from my own blog, ohnimus.wordpress.com. Its always refreshing when I stumble across another Catholic media outlet willing to defend the tenets of our Catholic faith. Keep it up!

    ReplyDelete
  3. First, why continue to personalize this as a "Catholic" issue when Anglicans, Lutherans, Calvinists, Evangelicals, Baptists, Eastern Orthodox and even the Jews have climbed on board for the sake of religious liberties?

    Because they are supporting a Catholic religious liberty. For example Jews aren't against contraception, the talmud is even mildly pro-choice. Every religious group on the right wants to extend religious protections and special treatment against state intervention on this sort of issue. If the issue were Wiccan employers requiring their employees to participate in sex magic rites those same groups would be opposed. Suddenly the employer's religious view of sexuality would be considered vastly less important than the employee's.

    This particular issue is Catholic because Catholics are the primary large constituency causing problems on this issue. The fact is that the HHS Secretary worked out the settlement with a nun. Brant is mad that Obama didn't work it out with a Bishop. I don't have a problem calling this a Catholic issue while understanding other much less influential groups might be supportive and even agree.

    Finally, under the previous version where people were more broadly objecting (essentially about 1/2 the population) came when Catholics like Sister Keehan and Joe Biden made a religious appeal. Now we just mainly have the people who hate Obama and don't like government healthcare objecting.

    Second, I think you and I are using ambiguous definition of the accessory to sin. Here's what accessory refers to, as I've said it, and here's where I was headed with it.

    OK. That list of 9 criteria seems consistent with CCC 1868. The problem with that list is as 1868 explains it makes essentially the entire society guilty of all the sins of the society. We cannot legislate under that definition. Catholics are going to be expected to build roads that lead to brothels. So if a Catholic agency is currently an accessory to 3,436,253 sins today maybe with the birth control mandate it goes up to them being an accessory to 3,439,512 sins.

    I think it is reasonable for Catholics to request they not be the direct agent of procuring contraception. I don't think it is reasonable that they have protection which cover accessory in that broad sense.

    Third, you seem to ignore that large Catholic charities --- notably EWTN, plaintiff in a major challenge to Sebelius --- have heretofore used the solution of being a self-insurer.

    I haven't ignored it. Prior to this we were having a moral argument about Catholics and contraception, this is an argument about the structure of insurance. And my response would be I don't think EWTN or General Electric should be allowed to self insure. I think providers of insurance should be regulated by the DOI across the board.

    I agree with you fully that EWTN will not be able to self insure under these guidelines, assuming they aren't willing to directly purchase contraception. But my hope is that over the next 3-4 years 90%+ of the people self insuring are knocked off the roles of self insuring and then the practice can be banned all together.

    Regardless yes EWTN will need to change their insuring practice. I don't see that as an undue hardship.

    ReplyDelete
    Replies
    1. 1. Thank you for reminding me that I hate Obama and Obamacare. I did not know I had shown my hatred so well. Presumably, this group includes the Bishops' Conference, a group largely mocked in previous years for being "The Democratic Party at Prayer."

      2. If your point is that Catholic teaching as per CCC 1868 is wrong, then that is presumably why you are not Catholic. Unfortunately, Catholic doctrine on accessory to sin is not a wiki, and the Bishops are those of authority in this and most other instances.

      3. I leave the rest for the readership to parse. I do not think there is much point in belaboring the issue much more now that his cards are all out on the table.

      Delete
    2. 1. Thank you for reminding me that I hate Obama and Obamacare. I did not know I had shown my hatred so well. Presumably, this group includes the Bishops' Conference, a group largely mocked in previous years for being "The Democratic Party at Prayer."

      Last I checked you aren't a major religious figure. Cardinal Dolan who is leading this charge by essentially misrepresenting the mandate is. Cardinal Dolan attacking this mandate is a lot like Liz Cheney's criticism of the president's handling of the war against terror. He and Kathleen Sebelius have been going at it since she was governor of Kansas and he was an Arch Bishop in Saint Louis.

      Decades ago it was the case that the Bishops in the United States were liberal. But for the last few decades the Pope's have flipped to a much more conservative American Bishops organization, by doing things like Pope Benedict XVI elevating Dolan to Cardinal. Also, to a great extent this has been following American Catholics in general where Catholic, especially Catholic men, for whom religion has important have ceased to identify with the Democratic party on ethnic grounds and instead identify Republican on cultural grounds.

      Dolan, partially as a result of his role, but the role is one he has eagerly perused, has been extremely aggressive on backing and in fact authoring right wing paranoia and describing many laws in ways that are frankly dishonest. He also has quite rightly attacked other laws / mandates regarding pharmacists which do are in fact outright mandate violations of conscience. The problem is that he is describing the current mandate in ways that are simply factual dishonest about what the legal implications are.

      I can understand how Brantly would mess up insurance law, he is just assuming that people he respects aren't lying. I can't say the same for Dolan. Dolan, the author of the Manhattan Declaration, which was written almost immediately upon Obama taking office has been looking for a good testcase and the original version of this mandate was a good testcase. Having gotten widespread support unexpectedly, he went on to press the issue even when the Obama administration created the loophole that worked out the legal issues.

      I understand that religious Catholic who generally don't follow politics look at Dolan as a religious and not a political figure. But he is the wrong person if you want Democrats onboard.

      If your point is that Catholic teaching as per CCC 1868 is wrong, then that is presumably why you are not Catholic.

      No my point is that following the CCC accessory to sin cannot be a basis of legislation regarding individual conscience in a broadly tolerant society. The entire point of this doctrine is to explain how community sin and individual sin are related. The doctrine explicates why a Christian is morally obligated to work for a moral society even if they themselves don't partake in the immorality, that they are inevitably forced to be an accessory. 1868 is the moral justification for Catholic social doctrine.

      In other words I'm not arguing that 1868 is wrong but rather that it is right, and you are simply failing to apply the teachings appropriately. You personally are already an accessory in the 1868 sense to a vast number of sins directly as a result of the American law's tolerance of sin.

      Delete