Republicans have given Nancy Pelosi plenty of grief over her infamous comment that we would have to pass the health care reform bill to find out what's in it. In fact, this is true of almost all pieces of federal legislation. A lot of the details in a bill are left for bureaucrats to fill in. This is done for both good reasons and bad ones. One of the latter is the desire on the part of legislators to evade responsibility.
I wonder how many members of the House and Senate knew or wanted us to know that they knew that the Affordable Care Act would require Catholic and other church-affiliated institutions to "cover free birth control to their employees". The new rule issued by the Administration would include, presumably, contraception, sterilization and abortifacients.
Well, we passed it and now we are finding out. In typical ACA style, the Administration has issued a one year waver of the rule, putting the actual blow off until after the election. Like that will help. Catholics are a pretty reliable voting bloc for Democrats. Now some of Obama's staunchest allies in that bloc feel betrayed. From Michael Gerson's column in the WaPo:
Consider Catholicism's most prominent academic leader, the Rev. John Jenkins, president of Notre Dame. Jenkins took a serious risk in sponsoring Obama's 2009 honorary degree and commencement address — which promised a "sensible" approach to the conscience clause. Jenkins now complains, "This is not the kind of 'sensible' approach the president had in mind when he spoke here." Obama has made Jenkins — and other progressive Catholic allies — look easily duped…
Consider Catholicism's most prominent clerical leader, Cardinal-designate Timothy Dolan, head of the Conference of Catholic Bishops. Dolan had pursued a policy of engagement with the administration. In November, he met face to face with Obama, who was earnestly reassuring on conscience protections. On Jan. 20, during a less-cordial phone conversation, Obama informed Dolan that no substantial concession had been made. How can Dolan make the argument for engagement now?
Strikingly, even E.J. Dionne, an uncompromising liberal if ever there was one, recognizes that the President betrayed his allies and exposed his previous moderation as a facade.
Obama threw his progressive Catholic allies under the bus, strengthened the very forces inside the Church that sought to derail the health care law, and created unnecessary problems for himself in the 2012 election.
This might not have mattered if Obama had presented himself as a pure secular liberal. Before he was elected and after, he held himself to a more inclusive standard, reassuring many religious moderates.
Perhaps there is a reason that the Administration could not have delayed this business until after the election but it strikes me as a disastrous move. In addition to deeply offending those who stuck their neck out for him, it is guaranteed to open up a new front in the legal war against the healthcare act. Law suits are in motion as I write.
If all that weren't bad enough, it supports the most fundamental critique of ObamaCare: that it represents a massive federal power grab and an assault on constitutionally limited government. Forcing the Catholic Church to pay for abortifacients surely looks like that.
I am not convinced that the new rule is unconstitutional. Under the Smith Test, the Free Exercise Clause affords no immunity to generally applicable laws. Religious exemptions to such laws are not generally constitutionally required but they are frequently good policy.
Denying a conscience clause exemption in this matter looks like a horrendously bad policy. Church-affiliated hospitals are an essential part of the American health care system, a fact that apparently irritates progressives. Kevin Drum has this at Mother Jones:
If Catholic hospitals don't want to follow reasonable, 21st century secular rules, they need to make themselves into truly religious enterprises. In particular, they need to stop taking secular taxpayer money. As long as they do, though, they should follow the same rules as anyone else.
Contrary to Drum, Church institutions come under this rule not because they take federal money but because they provide services and employ people. Meagan McArdle replies at her Atlantic blog:
I've seen several versions of Kevin's complaint on the interwebs, and everyone makes it seems to assume that we're doing the Catholic Church a big old favor by allowing them to provide health care and other social services to a needy public. Why, we're really coddling them, and it's about time they started acting a little grateful for everything we've done for them!
These people seem to be living in an alternate universe that I don't have access to, where there's a positive glut of secular organizations who are just dying to provide top-notch care for the sick, the poor, and the dispossessed.
In the universe where I live, some of the best charity care is provided by religious groups--in part because they have extremely strong fundraising capabilities, in part because they often have access to an extremely deep and motivated pool of volunteers, and in part because they are often able to generate significant returns to scale and longevity. And of course, the comparative discretion and decentralization of private charity, religious or secular, makes it much more effective in many (not all ways) than government entitlements.
Yes. Religious institutions funnel billions of charitable dollars and tap inestimable reservoirs of unselfish industry toward charitable causes. A conscience clause exemption seems like a small price to pay for that. They also provide a flexibility and responsiveness that is difficult for government institutions. That, however, requires some measure of independence from the government. That independence is what progressives cannot tolerate.
The Affordable Care Act has been consistently unpopular. The new rule seems to be making for new enemies. It makes no sense as a political strategy or as policy. It is explicable only as an expression of progressive ideology.