THE DEVIL IS IN THE DETAILS
It has been eight days since the Department of Health and Human Services has issued its latest attempt at regulations covering what is called the “contraceptive mandate” as contained in the Affordable Health Care Act (“Obamacare”). The regulations are some eighty pages in length but two thirds of those pages outline the management of the funds for the program once fully implemented. Every bishop in the country now has access to legal opinions on how these revised regulations will effect the Church’s approach and response to the “mandate.” I and almost every other bishop have waited while our own attorneys have studied the “regs” in detail. I also have the added assistance as a member of the Catholic Health Association Board of Directions, having listened to their General Counsel’s careful opinion of what influence these new regulations would have on Catholic Health Care interests. The wise and prudent approach has suggested not rushing into comments without the assistance of those more skilled in reading and understanding government “legalese” than most bishops. So what follows are my personal impressions of the Administration’s latest proposals.
1. Clearly, the Administration has been desirous of listening to and accommodating the concerns of Catholics and other people and institutions of conscience, like myself, who had real worries about the regulatory language in possession up till last Friday. There has been a serious effort to accommodate some of the conscience concerns of the Catholic bishops and I feel some expression of gratitude is due to the Administration.
2. One would be hard put to find any other segment of the American public whose concerns about the Affordable Health Care Act have attempted to be dealt with than those of the Catholic bishops and other like-minded people on this very important matter. There have been moments when I think we should consider ourselves lucky that they are still talking to us.
3. The result has been that many of our concerns, about religious freedom and conscience have been attempted to be met. For me the first attempt of the government to define religious ministry outside of our houses of worship has been addressed in the removal all together of the first three prongs of the prior definition and I am personally at peace with this aspect of the challenge.
4. By opening again, for the third time, a comment period (all must be submitted by April 8th), the Administration has offered an invitation to all interested parties, the Catholic bishops included, to raise any additional concerns which this new draft may have given birth to. There are no promises and anyone who has worked in Washington, as I have, should be prepared for the reality that whatever finds it way into law eventually will be “imperfect” in some way, but so was the much missed “Hyde Amendment.” Cardinal Dolan has made it clear subsequent to the statement issued by the United States Conference of Catholic Bishops that the USCCB has not rejected the HHS draft but seeks to continue to explore progress on some points which would lead to improvement.
5. As a former teacher of English (long ago), I find any discussion of the difference between exemption and accommodation to be interesting because as I look them both up in the OXFORD DICTIONARY OF THE ENGLISH LANGUAGE I am led to believe that it is a distinction without a difference. I find this especially true when studying the manner in which HHS would allow other religious entities for whom the mandate presents an issue of “conscience” to decide that they were worthy of the accommodation. Not many other entities of American life are treated with this level of trust (and this would be especially true of the tax code) and some thanks should also be due to the Administration for trying to find a solution which might satisfy us and other constituencies who think otherwise.
6. In the last eight days or so, I have found myself wondering who speaks for the Church? Cardinals, archbishops and bishops are certainly entitled to their opinions (as I hope I am amply demonstrating in this blog post) but since the Second Vatican Council, our collegial voice has almost always been the elected leader of our episcopal conference, currently Cardinal Dolan. His opinion is certainly not binding on every Catholic, but should be accorded greater respect than any of us. But he speaks for the bishops who elected him, as did his predecessors and as will his successors, not necessarily for the whole Church.
7. Which brings me to my final point. As far as I know, at no time up to yesterday (Friday)since the new HHS regs were made available for review and public comment, has anyone from the conference structure consulted with legal counsel for other entities in the Church (hospitals, college and universities, Catholic Charities)to ask their read on how this proposal will affect their ministry. Yet the USCCB statement, it seems, would have one believe that the above mentioned entities might fairly have their “noses out-of-joint” because they are being given consideration under the “accommodation” and not the “exemption.” I did not leave this week’s Board of Director’s meeting of the Catholic Health Association thinking that all those CEO’s of systems and related members felt they were being treated as second class citizens by these new regulations. Perhaps we bishops need a little more humility from time to time, recognizing that we are not the only “game in town” but that there are other players, women and men of great faith who also love the Church, and who can speak for themselves and their organizations, on what effect legislation, proposed legislation, regulations will have on their ministry. A more collaborative effort might lead to greater results.
We still have time to work to smooth out some of the rough waters which lie ahead. As one member, I would hope that our episcopal conference might be as open to listening to the issues and challenges which government seems to face as I believe they have been so far in hearing our concerns. But in the end, everyone must prepare themselves for what is likely to be imperfect regulations drawn from imperfect legislation. I still am grateful that that more universal health care coverage will be the first fruit of the Affordable Care Act and I am beginning to feel that I can say to my diocesan self-insured employees, all 1400 of them, that their moral right to health care coverage will survive this moment.