White House’s Revised Contraceptive Proposal Unlikely To Satisfy Critics

The Obama Administration's proposed solution to the impasse over contraceptives is unlikely to end the debate.

As anticipated, earlier today the Obama Administration announced a change in the requirement for employers to provide contraceptive coverage in the insurance they are required to provide to employees under the PPACA. Unfortunately it seems like more of a smokescreen than a solution and seems to be based on the idea that there is such a thing as “free” birth control:

Seeking to allay the concerns of Catholic leaders and head off an escalating political storm, President Obama on Friday announced an adjustment to the administration’s health-care rule requiring religiously affiliated employers to provide contraceptive coverage to women.

Women still will be guaranteed coverage for contraceptive services without any out-of-pocket cost, but will have to seek the coverage directly from their insurance companies if their employers object to birth control on religious grounds.

Religiously-affiliated non-profit employers such as schools, charities, universities, and hospitals will be able to provide their workers with plans that exclude such coverage. However, the insurance companies that provide the plans will have to offer those workers the opportunity to obtain additional contraceptive coverage directly, at no additional charge.

Churches remain exempt from the birth-control coverage requirement. And their workers will not have the option of obtaining separate contraceptive coverage under the new arrangement.

The administration’s decision to make an adjustment reflected the high political stakes of an issue that had generated intense criticism in recent days from a growing chorus of Catholic and Republicans leaders, as well as some Democrats. In Congress and on the campaign trail, leading Republicans attacked the Obama administration’s position as a war on religion.

In an appearance in the White House briefing room, Obama said he instructed aides to craft a solution quickly in the wake of the outcry.

“After many genuine concerns were raised over the last few weeks — and the more cynical desire to make this into political football — it became clear that spending months hammering out a solution not an option; we had to move this faster,” Obama said, flanked by Health and Human Services Secretary Kathleen Sebelius, whose agency is administering the rule.

“I’ve been confident from the start we could work out a sensible approach here,” the president added. “Some folks in Washington may want to treat this as another political wedge issue, but it shouldn’t be. I never saw it that way. It’s people with goodwill on both sides of the debate sorting through a complicated issue to find a solution that works for everyone. Today’s announcement has done that.”

White House officials said Obama called Archbishop Timothy Michael Dolan, Keehan and Planned Parenthood President Cecile Richards to explain the new rules. The officials declined to elaborate on the nature of the conversations.

During a conference call with reporters to explain details, a senior White House official said that the impact of the change on insurers would be cost neutral–and even potentially cost-saving–because on balance it would reduce the need to provide medical coverage related to unwanted pregnancies and other conditions that can be avoided with birth control.

“The new policy ensures women can get contraception without paying a co-pay and addresses important concerns raised by religious groups,” the White House said in a statement.

Not surprisingly, Administration allies and other groups on the left are hailing the new compromise — after all, who doesn’t like to get stuff when other people are going to be paying for it? — but it’s unclear how Church groups are going to react to this. To some extent, it seems like a shell game after all. Unlike the Hawaii Rule, the new plan does not contemplate employees paying for the additional cost of contraceptive coverage (which is, in all likelihood marginal at best) but it also doesn’t require religious employers to pay for the coverage. Instead, the payments will be made by that abstract entity the “insurance company” who some people in the White House apparently think has a pot of money somewhere that comes from some unknown source. However, as Sarah Kiff notes, there is a huge catch in the plan as revised that is likely to make it difficult to sell:

The catch here is that there’s a difference between “revenue neutral” and “free.” By one report’s measure, it costs about $21.40 to add birth control, IUDs and other contraceptives to an insurance plan. Those costs may be offset by a reduction in pregnancies. But unless drug manufacturers decide to start handing out free contraceptives, the money to buy them will have to come from somewhere.

Where will it come from, since neither employers nor employees will be paying for these contraceptives? That leaves the insurers, whose revenues come from the premiums that subscribers pay them. It’s difficult to see how insurance companies would avoid using premiums to cover the costs of contraceptives. They could, perhaps, use premiums from non-religious employers. Those businesses wouldn’t likely object on faith-based grounds, but they probably wouldn’t be keen on footing the bill for people who aren’t on their payrolls.

The proposal is also likely to raise concerns among religious employers, who may think (not entirely incorrectly, I would submit) that the cost of the contraceptive coverage will still ultimately come out of the insurance premiums they pay, and that it will be taken into account when premium increases are calculated over the life of the plan. From the perspective of the Catholic Bishops and the other religious organizations that have been protesting about this rule, it’s hard to see what has really changed from the original rule. As I said, it’s not as if the insurance companies have sources of revenue independent of the premiums they receive (or that it would even be proper for them to use those revenues for insurance purposes if they did), so ultimately the only entities that pay for the cost of coverage are the employer or the employee.

As I’ve said since the start of this debate, for me this isn’t a religious argument. I’m still not entirely convinced by the religious liberty arguments that the Church and its allies make, although whether or not those claims succeed in court is less important than the political impact that they might have. For me, the issue is whether Congress and the White House should be dictating the terms under which employers provide non-salary benefits to their employees at all. That’s a much larger debate, of course, and it will likely end up being resolved by the Supreme Court. However, if the Obama Administration truly wants to accommodate the concerns of religious institutions, then it needs to get off the high horse and admit that there is no such thing as “free” birth control, or “free anything else for that matter. Someone will end up paying for it in the end and, unless they want to take the political risk of alienating Catholics and other religious voters with a change that seems to be little more than a fig leaf, then maybe they need to consider something like the Hawaii Rule even if that means that employees end up picking up the cost.

Update: This statement from the National Conference of Catholic Bishops, while not an endorsement at all, is more positive than one might have expected:

WASHINGTON— The United States Conference of Catholic Bishops (USCCB) sees initial opportunities in preserving the principle of religious freedom after President Obama’s announcement today. But the Conference continues to express concerns. “While there may be an openness to respond to some of our concerns, we reserve judgment on the details until we have them,” said Cardinal-designate Timothy Dolan, president of USCCB.

“The past three weeks have witnessed a remarkable unity of Americans from all religions or none at all worried about the erosion of religious freedom and governmental intrusion into issues of faith and morals,” he said.

“Today’s decision to revise how individuals obtain services that are morally objectionable to religious entities and people of faith is a first step in the right direction,” Cardinal-designate Dolan said. “We hope to work with the Administration to guarantee that Americans’ consciences and our religious freedom are not harmed by these regulations.”

Obviously, if the Bishops ultimately sign off on this proposal then the issue is closed. The statement, however, makes it seem as if there is at least some negotiation still to be had here.

FILED UNDER: Health Care, Politicians, Religion, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. acidboy says:

    But “satisfying the critics” was hardly the point. The point is to satisfy those in the middle who worried this was an attack on religion. That argument is vacated. That the religious zealots haven’t been convinced is neither surprising nor a problem.

  2. sam says:

    [T]he announcement drew a swift rebuke from some conservative Catholics. Jim Towey, who headed President George W. Bush’s faith-based office and now is president of Ave Maria University, a conservative Catholic school near Naples, Fla., said the university board planned to meet Monday to discuss legal action against the new mandate.

    “We subsidize these health plans, so the question is whether university resources are underwriting this,” Towey said.

    “I still don’t think President Obama gets it,” Towey added. “This is a fig-leaf of a political compromise that’s trying to have it both ways, to mollify women’s groups and so-called centrist Catholics. But I think fundamentally this is not the end of this debate, it’s just the beginning.”

    The rope-a-dope strategy proceeds apace.

  3. Cycloptichorn says:

    Yeah, I think you’re wrong on the politics of this one, Mr. Mataconis.

    The fact that the head of the Catholic hospitals assoc., Sister Carol Keenan, has basically said ‘we’re perfectly fine with this,’ undercuts the entire argument the church leadership is making.

    Who are they arguing on behalf of???

    – The organizations in question don’t have a problem with contraception coverage.
    – The members of the church itself CERTAINLY don’t have a problem with contraception coverage; they almost universally USE contraception themselves!
    – The public as a whole certainly has no problem with this, per polling
    – Women strongly support this move, per polling.

    It seems that this argument is being made on behalf of old Catholic men who run the church. But, in case you’ve been sort of absent for the last two decades, this is not a highly-respected group, here in America.

    I should also point out that Obama’s numbers have climbed significantly over the last two weeks, in both state polling, national polling vs. his opponents, and job approval. I think that, absent actual evidence that this issue has harmed him in some way, you ought to be open to the possibility that it in fact has done the opposite.

  4. Hey Norm says:

    As predicted…the so-called right is not satisfied because it is not about religious freedom and never was.
    But Obama has once again shown the opposition to be what they are…ideological and intransigent.

  5. anjin-san says:

    But “satisfying the critics” was hardly the point.

    Bingo.

    Fox and it’s fellow travelers while continue to how with rage. So what? If Obama cured cancer next week, they would be carping about how he has tuned his back on Parkinson’s sufferers.

    If Sister Carol Keenan has signed of on this, the whole thing is moot beyond Faux outrage and a the GOP’s increasing desperation to somehow land a few punches on Obama to distract from the farcical Republican primaries.

    And of course it is pretty easy to show that Republicans have ignored the expressed wishes of Catholic Bishops on any number of issues.

  6. Nikki says:

    As I said, it’s not as if the insurance companies have sources of revenue independent of the premiums they receive (or that it would even be proper for them to use those revenues for insurance purposes if they did), so ultimately the only entities that pay for the cost of coverage are the employer or the employee.

    I have a problem with old men getting pills to give them an erection. At that age, I think men should be focusing on prayer and biblical studies and getting ready to meet their maker rather than worrying about the hardness of their peni. I don’t care how the lack of tumescence may be affecting their mental health. However, my employer and I don’t get to opt out of paying premiums which may go to subsidize those old dudes’ prescriptions. This is true for all prescriptions offered free or at reduced rates in health care plans. Why should birth control be treated any differently than any other prescriptions?

  7. anjin-san says:

    Why should birth control be treated any differently than any other prescriptions?

    A very good question. The only thing I can figure is that a lot of these folks are, how should I put it – not getting any. Hence the comments about how they don’t want to subsidize women “rutting like minks.” (seen recently on conservative blog)

  8. WR says:

    The church complained because they were being forced to pay for contraceptives for their employees, which they said eroded their religious freedom.

    Now they are not paying for contraceptives, so they are complaining that SOMEONE is paying for contraceptives for their employees. In other words, they are upset because people who work for them are allowed to acquire contraceptives. In other words, it’s now obvious that this was never about religious liberty so much as it was a feeble attempt by the pederast-protecting old men of the church to control women’s sexuality. And so they’re going to lose big time.

    Of course, for “libertarians,” it was the usual case of some silly abstract principal being far more important than the health or freedom of anyone without a penis. Because libertarianism is all about the freedom, as long as you’re a guy. Women, who cares?

  9. Gold Star for Robot Boy says:

    Doug, before I can take your post seriously, I must ask you a serious question: When have Obama’s critics ever been satisfied?

  10. Joel says:

    It won’t satisfy the people who would get mad if Obama said the sky were blue, but it will satisfy the more liberal Catholics who were upset by this issue.

  11. Vast Variety says:

    it’s not as if the insurance companies have sources of revenue independent of the premiums they receive

    This is an incorrect statement. Insurance companies have multiple revenue streams just like most other institutions who’s primary business is the flow of other people’s money. It’s called Wall Street and the stock market.

  12. John425 says:

    “As I’ve said since the start of this debate, for me this isn’t a religious argument. I’m still not entirely convinced by the religious liberty arguments that the Church and its allies make…”

    Mataconis lives in the same world as Obama. A world where Executive Order trumps the Constitution. Hey Doug, what’s the motto there? “L’etat, c’est moi”?

  13. legion says:

    The “critics” of this policy were never criticizing Obama’s decision – they were criticizing the very availability of contraception _at all_. This is not about churches wanting to maintain their religious freedom, it’s only ever been about them wanting to _impose_ their own rules an everyone else.As acidboy says right at the top, this will go over fine with the vast majority of people paying attention to the issue, but the real movers behind it are still lying hypocrites & will continue to be “outraged”.

  14. legion says:

    @John425: Mmmmmmmm…. no. Doug is spot-on with his analysis here. The only Constitutional violation here is the one being attempted by the Catholic church – by trying to claim that any company the Church runs is effectively part of the Church, and that Church rules should trump civil law. “L’etat, c’est Dieu.”
    Non.

  15. Doubter4444 says:

    I had this on the other thread, so forgive me for reposting it – but I think it’s actually more appropriate here:

    I really see this as a trap the Administration set for the GOP. It was a bit of a chance, but he’s a bit of a gambler.
    And they walked right in.
    Think of it this way:
    1) Obama riles conservatives and catholics with the decision – takes a hit from people most likely not voting for him anyway.
    2) Obama takes a hit from a moderate group of Catholics that may vote him.
    3) It’s a long way to November.
    Group one he’s never going to please.
    Group two: he offers a “compromise” – and tries to unruffel feathers, reminding them that what he proposed is state law in over a third of the country already.
    What way he looks like he’s willing to bend to those who care, knows (hopes) this is forgotten in November, and gets to harp on the fact that’s he’s only building on previous, un-objectional laws in place.
    Then he gets to paint the opposition to this as far right, and tries to claim the reasonable middle.

    That’s just the opening – because by doing this, he REFRAMES the debate from abortion to birth control.

    The right will, as expected, way over reach on this issue, first by tying to pound the president for doing it, then when they smell blood, they’ll push for more, way more than is popular.
    That’s already happening.

    Suddenly this will move from being about religious freedom (dubious from the start, but somewhat defensible) to rolling back access to birth control to women.

    Given that’s he willing to “compromise” on the delivery of birth control and his opponents push for more, he again looks like a reasonable man facing zealots.

    So now in the fall, he’ll get to say – “look at these guys (the GOP) give them an inch they take a mile’. ” Give him an exemption on BC, it’s not good enough. They say is just about Religion, but it’s really about subjugation”.
    If you hate Obama already, you’ll argue till you are blue that he’s changing the subject, meanwhile, you will go from attacking his overreach to defending the right’s overreach.
    There is a bit of a risk that moderate Catholics may not approve, but he’s betting that the far right pushes and makes it easier for him.

    Reply

  16. David M says:

    It won’t satisfy the critics that took the position no employer that objects should have to offer insurance that covers contraceptive services, but I’m not sure that matters. That objection was never going anywhere, the main public opposition was from hospitals and universities and this will likely satisfy them.

    Besides, it’s giving the opportunity for Santorum to spout off nonsense like contraception shouldn’t be covered by insurance at all. It’s a pretty safe bet Obama has chosen the more popular side here.

  17. Hey Norm says:

    This is all you need to know about the topic at hand…Steve King (R-IA) being interviewed by MSNBC:

    BASHIR: As you know, sir, the contraceptive pill doesn’t abort a pregnancy. It prevents a pregnancy from happening. That’s not what I’m talking about…
    KING: Well, I really don’t concede that. And that’s not either the Catholic Church’s position.

    And then watch this…
    http://www.youtube.com/watch?v=U0kJHQpvgB8

  18. What is being overlooked in all this, including the comments so far, is this: Just where does a president get the authority to tell insurance companies that they must render payment of benefits “free”?

    Forget that insurance companies do indeed have multiple revenue streams or that they will (not might, “will”) recoup their costs by burying them in raised, total-plan premium charges. That’s not the point I am making.

    Again: By what Constitutional authority does this president issue dikta that mandates a business give away part of its product for free?

    If he can do this, he can also order McDonalds to give people free ice cream cones. If you disagree, explain why not.

    We have gone in Obamacare from mandating that individuals pay for a product they may not want to mandating that they do not have to pay for something they do want. But that’s how Democrats think, I guess.

    But let’s get to the heart of the whole issue, which is not who pays for what when. The core objective being accomplished here by the president is centralizing power and control in the hands of the executive branch, meaning the Oval Office. And yes, Bush did this, too, though not as cynically or blatantly.

  19. Ron Beasley says:

    There were two groups who opposed it:
    a. The Catholic Bishops who saw it as a threat to their ability to control women and
    b. White Evangelical Christians who oppose it because it comes from Obama
    Nothing he could have done would have pleased these people but they wern’t going to vote for him anyway.

  20. Nikki says:

    @Ron Beasley: Don’t forget the added benefit of making the dirty sluts pay for their wanton ways. And isn’t that what it’s really all about?

  21. Moosebreath says:

    Doubter4444,

    Accurate observation of Obama’s modus operandi in general. It’s worked many times before, and likely will again until the Republicans in Congress stop taking orders from its right-most wing.

  22. Hey Norm says:

    @ Sensing…
    Article I, Section 8, Clause 3

  23. Nikki says:

    Let me state that I really don’t have a problem with Viagara or the men and women who use it. It should be readily available and affordable to everyone to whom it is beneficial. Contraceptives should be as well.

  24. DRS says:

    As Andrew Sullivan would say: “Meep, meep”.

  25. David M says:

    @Donald Sensing: There are plenty of regulations on what insurance companies have to cover already, I’d be surprised if this didn’t fall under that authority. This really doesn’t do much, just removes the contraceptive requirement from employers that may object and requires insurance companies include this in their list of services covered without charge.

  26. @Hey Norm:

    Art I, Sec 8 Cl. 3 — Exactly how does this power, delegated to Congress, give the president the authority to issue this edict?

  27. Hey Norm says:

    Are you unfamiliar with Congress delegating responsibility?
    The PPACA delgates to HHS the job of developing a list of “preventive services” (and a distinct list of “preventive services for women”) to be covered in private health plans without cost sharing.

  28. sam says:

    @Donald Sensing:

    Art I, Sec 8 Cl. 3 — Exactly how does this power, delegated to Congress, give the president the authority to issue this edict?

    See, Congressional Research Service, PPACA Provisions and Potential Use of Executive Orders for your answer.

  29. legion says:

    @Donald Sensing:

    If he can do this, he can also order McDonalds to give people free ice cream cones. If you disagree, explain why not.

    McDonald’s is one specific company. This is the President exercising regulatory control over an entire industry. Your example would only hold if he directed, say, Humana specifically to cover contraceptives for all Americans.

  30. mantis says:

    For someone so concerned about the Constitution, Sensing isn’t very familiar with what it says, is he?

  31. Barb Hartwell says:

    @Doubter4444: That`s what I admire in President Obama the sly way he is forced to play against the Republicans. He really should be a gambler as he holds his cards close and his expression that tells nothing. I like him more every day..

  32. Barb Hartwell says:

    Contraceptives are so important to our society more than ever was before. The people who do not wish to pay for these children born to drug addicted woman or teens not old enough to take care of themselves. Republicans complain Obama is the food stamp president Do they think it will be better without birth control. You do gooders who believe in abstinence even Sarah Palin`s daughter got in trouble, but she is a rich kid Let`s face it shit happens I cannot believe we have to defend this BS

  33. PD Shaw says:

    @sam: That link doesn’t appear to answer what I think the question is. Congress passed the Religious Freedom Restoration Act, which essentially requires the federal government to exempt religious organizations where possible. Congress can’t bind future Congresses, so PPACA doesn’t have to comply with the Religious Freedom Restoration Act, but the executive does. So, if the President is operating under his own authority, he cannot contradict either the Religious Freedom Resoration Act or the healthcare law.

  34. PD Shaw says:

    Here is a summary of the lawsuits:

    The lawsuits are both based on religious freedom, guaranteed under the First Amendment, and the 1993 Religious Freedom Restoration Act. That law’ intent is to prevent other laws that substantially burden a person’s constitutional right to free expression of religion.

    The law could be a strong case against the mandate, said Richard W. Garnett, associate dean at Notre Dame Law School.

    “The Religious Freedom Restoration Act sets up a standard that any time a federal law burdens the free exercise of religion, the government has to, one, show a compelling public interest in a mandate; and two, show there is not some other way to meet that interest,” Garnett told CNSNews.com.

    “In this case, it is quite clear, it can easily be met some other way, through vouchers or other insurers, or the government could pay for it.”

  35. MBunge says:

    @Donald Sensing: “Art I, Sec 8 Cl. 3 — Exactly how does this power, delegated to Congress, give the president the authority to issue this edict?”

    You do realize that this is a bit more involved than the President just issuing an “edict”?

    Mike

  36. sam says:

    @PD Shaw:

    So, if the President is operating under his own authority, he cannot contradict either the Religious Freedom Resoration Act or the healthcare law.

    The question is, then, does his action violate the RFRA (I’m pretty sure it doesn’t violate the ACA)? How would it violate the RFRA if he exempts Catholic hospitals and so on from covering contraception but does require insurance companies to? Where’s the RCRA violation?*

    *Not that it won’t be spun as a violation, but the reasoning is, if I may, jesuitical (at least what I’ve seen).

  37. sam says:

    @Donald Sensing:

    If he can do this, he can also order McDonalds to give people free ice cream cones. If you disagree, explain why not.

    There is no compelling state interest in so doing. That’s why not.

  38. @sam:

    “scuse me while I just laugh my head off at your naivete. Who shall determine what is a “compelling state interest?”

    Well, buddy, it won’t be you or me, will it?

  39. @MBunge:

    Uh, no it is not “a bit more involved than the President just issuing an ‘edict’.” The Obamacare legislation literally orders the HHS secretary to issue edicts. The act contains 700 references to the Secretary “shall,” another 200 to the Secretary “may,” and 139 to the Secretary “determines.” And we know who the SecHHS works for.

    Of course, I already knew this when I asked my question, above, of just where Obama got the authority to issue the edict. But of course, the lefty snarkers commenting here didn’t seem to know that.

  40. @legion:

    ROTFLMHO! Oh, what an imaginary universe you inhabit. Do you really think that it makes the slightest bit of difference to an imperial government whether it is edict-ing to a whole industry or a single company? It sure didn’t when Obama ripped up existing law regarding bankruptcy settlement of GM and just ordered it to be done his way. Somehow, Ford missed that dragnet. So much for the ‘”whole industry” argument…

  41. WR says:

    @Donald Sensing: “. But of course, the lefty snarkers commenting here didn’t seem to know that. ”

    No, we just can’t be bothered to play your silly little games.

  42. PD Shaw says:

    @sam:

    “The question is, then, does his action violate the RFRA (I’m pretty sure it doesn’t violate the ACA)?”

    Violating the RFRA (which I admit is pretty much how I described it) is probably not the best way to put it. People and organizations (religious organizations are people too) that believe a religious belief is being burdened by government regulation, will go to court and demand an exemption. The fact that Obama is giving some organizations exemptions and discussing alternatives for the others today, indicates strongly to me that he would lose those lawsuits. He may be trying to draw a reasonable distinction, but if the RFRA applies giving Group A an exemption suggests Group B should get one too, if the religous belief is the same.

    Plus, I think there is an inherent problem with this particular type of “health care coverage.” Mandates for insurable risks are necessary because people will drop coverage until a problem occurs and then try to get coverage. That’s not how contraception works. Everybody should know whether or not they need contraception right now. They are not waiting for an accident or diagnosis. The contraception coverage is merely an indirect tax (on the old, the infertile and the male) to reduce the cost of contraception of females of a certain age. You can achieve this without getting employers involved through alternative means, which is what the RFRA requires where a religous belief is burdened.

    I would change my view if the healthcare law (which I haven’t read) either expressly exempts itself from RFRA or has specific enough provisions on how to deal with religious issues that it implicitly overrides RFRA. But that’s not how Obama is sounding. There are a lot of specific laws like healthcare reform that are subject to additional general laws like the Civil Rights Act, the National Environmental Protection Act, or the Hyde Amendment that constrain the executive’s ability to make policies or rules in furtherance of the specific laws.

  43. anjin-san says:

    He really should be a gambler as he holds his cards close and his expression that tells nothing

    Well, he is the guy who crushed Donald Trump on television at the same time he had the Seals on the way to take out Bin Laden. And he was smiling the whole time. A pretty cool cat, as the saying goes.

    I think one of the reasons conservatives hate him so much is that there is no such thing as a cool cat in right wing politics.

  44. sam says:

    @Donald Sensing:

    ROTFLMHO! Oh, what an imaginary universe you inhabit. Do you really think that it makes the slightest bit of difference to an imperial government whether it is edict-ing to a whole industry or a single company?

    Your codpiece is slipping, Don.

  45. @WR:

    “No, we just can’t be bothered to play your silly little games.”

    Translation: “I cannot defend my argument on merits, so I resort to snark.”

  46. @sam:

    “Your codpiece is slipping, Don.”

    Translation: “I cannot defend my argument on merits, so I resort to snark.”

  47. sam says:

    @PD Shaw:

    The contraception coverage is merely an indirect tax (on the old, the infertile and the male) to reduce the cost of contraception of females of a certain age.

    I’ll get to you other points, tomorrow, PD. But now just this: how does that differ, save sex, from ED (Viagra coverage)? Or, say, coverage for geriatric problems? How are these not indirect taxes, on your argument, levied against populations not affected by the conditions?

  48. sam says:

    The moderation queue? Really?? For what, ‘Wiagra’? (Russian accent) Man, you guys are tough.

  49. Scott says:

    @sam: “we subsidize these health plans” Wrong! Health insurance is part of the employee’s compensation plan. Let stop treating these pre-tax benefits as gifts from employers. They are compensation, no more, no less. And large organizations, whether religious or corporate, are trying to use these means to impose control over their employees. Let talk about religious liberty for employees, not large institutions.

  50. WR says:

    @Donald Sensing: No. The translation, if the original was too hard for you, goes like this: There’s a breed of righwingers who are essentially sixteen year old boys who still love to play Dungeons and Dragons. Every once in a while they pop up and say “Your dragon cannot slay my might wizard, and if you walk away from this challenge, then the world will know that I have won.” And everyone who doesn’t give a damn about D&D walks away, feeling sorry and kind of embarassed to have met you, while you triumph in your imaginary victory.

    No one gives a damn about your idiot challenges, Donald. If you’ve got a point to make, then make it and see if anyone agrees. But this whole “a-ha, I laid out a cunning trap and by ignoring it all those libs fell into it:” schtick never worked when your were sixteen, and certainly doesn’t work now. At least not if you’re not posting at Hot Air or Wizbang or some other loser site where they actually think Jonah Goldberg is an intellectural.

  51. Jay says:

    This whole episode is turning into a partisan’s wet dream. The Left is already claiming that Obama baited the Right to force Romney to attack the use of birth control (and prove the Cons to be woman-haters), while the Right can go on believing that Obama hates religion AND freedom (bonus!). Meanwhile, the insurance companies, the WH, and the various religious institutions are cutting deals to determine how we will get BC. This is exactly how we shouldn’t be holding national dialogues about healthcare.

  52. sam says:

    @PD Shaw:

    The fact that Obama is giving some organizations exemptions and discussing alternatives for the others today, indicates strongly to me that he would lose those lawsuits. He may be trying to draw a reasonable distinction, but if the RFRA applies giving Group A an exemption suggests Group B should get one too, if the religous belief is the same.

    Why would it come to lawsuits?

    [I]f the RFRA applies giving Group A an exemption suggests Group B should get one too, if the religous belief is the same.

    I don’t see a problem there. If Group A and Group B fall in the same category vis-a-vis religious belief, and A gets the exemption, B gets the exemption, too. I don’t see a conceptual problem with that. (Are you referring to things like Jehovah’s Witnesses and blood transfusions?)

    I would change my view if the healthcare law (which I haven’t read) either expressly exempts itself from RFRA or has specific enough provisions on how to deal with religious issues that it implicitly overrides RFRA

    There is a religious exemption to the individual mandate, see, Healthcare Bill Exemption. But there is no general religious opt-out, or, for that matter, a requirement that insurance companies accommodate folks like Christian Scientists who practice spiritual healing.

    Senator Rubio has introduced the The Religious Freedom Restoration Act of 2012 that would, in effect, permit any employer to deny contraception coverage in their employee health plans. I predict this bill goes nowhere (but does give him a leg up in the GOP VP race…).

    As a matter of fact, the only things I’ve been able to find that are argued involve a conflict between the ACA and the RFRA are the contraception question and the individual mandate, and, perhaps, the concerns of Christian Scientists that there is no requirement that insurance companies address their situation (but that’s a complaint about a lack of protection in the ACA not about an encroachment on religious liberty).

  53. Brummagem Joe says:

    ” Unfortunately it seems like more of a smokescreen than a solution and seems to be based on the idea that there is such a thing as “free” birth control:”

    It was a tweak (or a smokescreen if you want to use Doug’s pejorative language) that preserved the principle but gave a nod in the direction of the catholic church. Several bodies in the church have reacted positively but of course nothing is ever going to satisfy Republicans who want a political football. And as is often the case Doug is misrepresenting this issue. It’s about all women having access to birth control on the same terms. There’s been so much misinformation bandied about in this controversy that it’s hard to separate truth from fiction but the fact is in many cases the bishops were railing against this while catholic institutions and hospitals systems within their states were cheerfully complying with state regs requiring them to comply with the same rule. Whatever Republicans may want I have a suspicion that the catholic bishops weren’t too keen on an all out holy war over the issue because of the potential for division amongst their own congregations. Given the church’s constant search for funds the last thing they want is a large part of their congregations becoming disaffected and not turning up for mass.

  54. mantis says:

    The Left is already claiming that Obama baited the Right to force Romney to attack the use of birth control (and prove the Cons to be woman-haters)

    Yeah, because he did. And now that the compromise has removed the ridiculous “religious freedom” argument from the equation, all conservatives can do now is surrender, or double down on an anti-contraception stance. If they do that, the president locks up the female vote by a large margin nine months from election day and before the Republicans can even pick a candidate.

    Say goodnight, GOP. You were just checkmated as you giddily cried “king me, king me!”

  55. PD Shaw says:

    @sam:

    If Group A and Group B fall in the same category vis-a-vis religious belief, and A gets the exemption, B gets the exemption, too. I don’t see a conceptual problem with that.

    No, in this instant Group A are the specific church organizations that are exempt under the original proposed rule, and Group B are the hospitals, schools, social proegrams operated by churches that are not exempt. I understand why that distinction was made; that line drawn, but it goes towards a couple of the key elements of RFRA: (1) It recognizes that a contraception mandate may run counter to a religious belief; and (2) it recognizes that an exemption can be provided without jeopardizing the purposes of the law.

    I understand why people think hospitals are different from worship centers, particularly since hospitals take all comers regardless of faith, but I don’t think that matters under RFRA; does the policy burden a religious belief and is an alternative available?

    “Why would it come to lawsuits?”

    From my previous link I think the lawsuit has already been filed. There is a basic problem here. Obama can compromise his position all he wants here, but that won’t stop a religious organization bringing a lawsuit to ask the courts for a complete exemption.

  56. PD Shaw says:

    @sam: “how does that differ, save sex, from ED (V[] coverage)? Or, say, coverage for geriatric problems? How are these not indirect taxes, on your argument, levied against populations not affected by the conditions? ”

    Probably doesn’t. I think I’ve written here before that the individual mandate is necessary to remove the pre-existing restrictions component of healthcare insurance (and thus its Constitutional IMHO). But some of the other stuff that has been added to the policies in terms of wellness don’t operate that way. Contraception coverage is not an insurable risk; its a supplemental benefit.

    The only reason this is relevant to the discussion is that in deciding whether the contraception mandate is absolutely necessary for the healthcare law to work. If contraception coverage for religious organizations doesn’t undermine the purpose of the healthecare law in the way an exemption for heart attack coverage would, a court would more likely order the exemption.

  57. @WR:

    Translation of the whole, sordid comment:

    “I am a typical Leftist-Statist, so everyone else should just shut up and mind their betters, meaning me. I know more than anyone else, so when challenged to defend my position, I will simply use anger (for I am a deeply angry person) and insults – these are, of course, the typical tactics of the Left and are intended to silence the other, not engage them.

    “The fact is, no rational person could possibly take issue with what I think, and therefore anyone who does must be ignored if possible, but if not possible, he must be subjected to personal attacks and degrading language. Because that’s how I really think.

    “The whole challenge to defend my position on merits is a discussion I won’t have because the “rightness” of my position is not the point. Being a Leftist-Statist, my desire is only to wield power over others. (This, of course is evident from the browbeating I assail opponents with.) And that is why I am not interested in – and do not care about – the “merits” of my position. If I can wield power, even in so inconsequential a forum as an OTB comment thread, that is all that matters.

    “I am a Leftist-Statist because it is easy – it does not require actual thought or analysis, just a willingness to comport myself as uncivilly and arrogantly as I need to.

    “And oh, yeah: if you don’t agree with me, just shut up.”

  58. Ron Beasley says:

    What no one seems to be talking about here is that it makes economic sense for the insurance companies to offer free birth control. It’s a hell of a lot cheaper than paying for pregnancy, child birth and well baby care.

  59. sam says:

    @PD Shaw:

    If contraception coverage [exemptions] for religious organizations [don’t] undermine the purpose of the health care law in the way an exemption for heart attack coverage would, a court would more likely order the exemption.

    I’d only point out that contraceptives are sometime prescribed for things other than the prevention of pregnancy. They’re prescribed, for instance, for women going through menopause to alleve the symptoms associated therewith. (These symptoms can be pretty ugly sometimes.) And many surgical procedures that are rightly described as sterilizing are done without a contraceptive purpose but rather as a medical necessity to address a debilitating or life-threatening condition in the woman.

  60. Pug says:

    My advice for Republicans would simply be to go ahead and nominate Rick Santorum. Let’s have a national debate about his views on religious freedom vs. birth control coverage.

  61. WR says:

    @Donald Sensing: Dude, I’m not angry at you. I’m laughing at you. Do try to understand the difference.

  62. anjin-san says:

    Well Donald, as a counterpunch, that packed all the wallop of a marshmallow…

  63. @Ron Beasley:

    Actually, the Washington Post said that at best it would even out, but then added that in the meantime, someone still has to pay for the BC.

  64. PD Shaw says:

    @sam: According to the coverage I’ve seen the Catholic Church covers contraception when there is a medical reason, just not as birth control.

    Also, to nobody in particular, the news coverage is picking up what I mentioned a few days ago. The Catholic hospitals are mostly self-insured; they’re being asked to pay contraception out of pocket, which is why the compromise involving insurance companies picking-up the cost is moot. There is no third-party insurance.

  65. Jay says:

    @mantis: Uhm, case in point. Obama picks a fight, wedges the nation, and alienates the Catholic Left. Is this how the Left wants to win? I’m surprised at how quickly both the Partisan Left and the Partisan Right have been to brag about their leaders’ actions on this issue, which, by their admissions, includes baiting, lying, etc. Doesn’t take much in an election year for people to lose their s***.

  66. Jay says:

    @Ron Beasley: That’s an interesting statement. It makes economic sense as a country to provide it, but we really don’t know what makes economic sense to an individual insurance company. The way they package their plans, the migration of their customers, the demographics, etc all make predicting insurance profits very difficult. The fact that Yglesias & others are already claiming to know the motives behind BIg Insurance’s embracing Obama’s compromise is suspicious. Let’s hope it’s as simply as “it saves us $$ to compromise” and doesn’t involve more corrupt nonsense between the WH and the insurance companies.