Last Thursday, Cardinal Donald Wuerl of Washington, D.C., and Archbishop William Lori of Baltimore appeared on EWTN's The World Over to discuss the twelve lawsuits filed by Catholic organizations against the Obama administration over the contraception mandate. (I've embedded the video at the bottom of this post.) Throughout the interview, Wuerl and Lori sounded familiar notes -- this is about religious liberty, not contraception; the mandate constitutes an unprecedented government intrusion into the life of the church; the definition of "religious employer" must go. But they sounded some false notes too.
At the top of the interview, Raymond Arroyo asked Wuerl and Lori about the Obama administration's proposed accommodation, which would shift responsibility to contract and pay for contraception services from employers to insurers.
Wuerl: Oh it sounds great, if it were true. It sounds wonderful. We have this great accommodation, and you don't have to worry because you're not going to have to provide or pay for [contraception coverage] -- the insurance company will. We're self-insured. We are the insurance company. So nothing has changed. We've said that from the beginning. This was an accommodation that was only on paper. In reality, it changed nothing.
Two points: First, the bishops and their surrogates have been saying this for months -- the original form of the mandate is what's in the books, and that would force Catholic organizations to include contraception coverage in employee health plans. Of course, that's not inaccurate, but it's also not terribly responsive to an important development: the proposed rule that was entered into the federal register in March. (You know, the one Cardinal Dolan initially called a"step in the right direction.") That document explains the administration's intent to develop policies to allow religious employers -- those that cover their employees through an insurer and those that are self-insured -- to opt out of paying for contraception coverage in their health plans. (Another HHS document published the same day made it clear that, pace the Franciscan University of Steubenville, self-insured student health plans were exempt from the mandate.) When the administration published the proposed rule, it announced a ninety-day period for public comment. That doesn't end until June 19. So while Cardinal Wuerl is correct when he says the accommodation hasn't been finalized, he fails to mention that the window for public comment has not yet closed.
Second, Cardinal Wuerl said something surprising in that exchange: he said the accommodation "sounds wonderful." That isn't the way episcopal critics of the mandate usually respond when asked about the accommodation. The standard reply is: "This is a legal fiction. We'd still be facilitating contraception coverage in violation of church teaching." Instead, Wuerl seemed to praise it: "We have this great accommodation, and you don't have to worry because you're not going to have to provide or pay for [contraception coverage] -- the insurance company will." Does that mean that if the proposed accommodation is finalized along those lines, the bishops will stand down? Color me dubious. But that's not really the conversation the bishops want to have. They'd rather focus on the structure of the exemption, which frees some religious employers from covering contraception, but not others. Over to Archbishop Lori:
It's certainly at the heart of the suits.... The definition is that we should be a community that hires only its own, and serves only its own. And that if we venture out and serve the common good, then we're not religious enough, and therefore we're not exempt from this unjust HHS mandate.... And so therefore this ACLU definition that they are imposing upon us is like a straitjacket, and so we reject it.
No. The exemption does not define religious employers as those that hire and serve only co-religionists. Rather, in order to qualify for a full exemption, a religious employer must be nonprofit, it must primarily employ and serve co-religionists, and its purpose must be the inculcation of religious values.
Perhaps Archbishop Lori took his cue from Cardinal Dolan's appearance on CBS This Morning, where the cardinal offered the same distortion of the exemption, and the same metaphor to describe it. (Cardinal Wuerl offered a similarly erroneous description of the exemption on yesterday's broadcast of Fox News Sunday.) Whatever the case, now would be a good time for bishops who speak publicly about this issue to brush up on its details.
That goes for TV personalities too. Arroyo's description of the exemption was no better: "To be clear, according to this mandate, you can only get out of it, get out as a religious organization if you only hire co-religionists, Catholics, and only if you serve Catholics." That's clear all right. Clearly wrong. Of course, Arroyo asked Wuerl and Lori what they made of Bishop Stephen Blaire's interview with America, where he spoke about his fear that the bishops' religious-freedom campaign was being co-opted for partisan purposes, and shared some bishops' concern that there hadn't been wider consultation among the bishops on the USCCB's strategy. (Blaire quickly issued a clarification of those remarks, which, without altering their substance, re-emphasized his agreement with the goal of protecting religious freedom.) Cardinal Wuerl's response:
One of the reasons we went into court was to get it out of that whole political discourse, that area of political discourse that says this is why you're doing this, this is what you're doing that. We wanted to take it to court, where objectively, without any of that rhetoric, the court will look at it and say, "This is right, this is wrong. This is constitutional, this is not constitutional." I don't think it comes as a surprise or shock to anyone...there are camps in the media, and sometimes, sometimes they actually create the story.
What part of that pertains to Bishop Blaire's comments? Is it the last sentence? The media didn't create this story. For months, the U.S. Conference of Catholic Bishops has been coordinating a well-organized campaign to overturn the contraception-coverage mandate. One of its members broke ranks to say something most people already knew, but few believed they'd hear from a bishop: Not all of us agree. Some think there should have been more consultation with the body of bishops about how to conduct the campaign.
Archbishop Lori insisted that "there is overwhelming unity among the bishops, and tremendous support among our people, for the action that was taken last week in filing those lawsuits, and in the overall effort to defend our First Amendment rights." The media, he claims, went "looking for what they perceive to be a little small crack in the wall, and then they want to drive a bulldozer through it." But in fact there is not unity among bishops when it comes to the lawsuits. Lawyers representing the entire California Catholic Conference wrote to the USCCB to caution against filing the suits. They called that strategy "imprudent" and "ill advised." And the USCCB didn't reply before issuing its press release announcing the legal complaints. What kind of unity is that?
Why didn't more dioceses join the suit? "These lawsuits represent the entire breadth and width of the United States," Cardinal Wuerl explained. Perhaps, but is it so strange to wonder why two of the three largest dioceses -- Los Angeles and Chicago -- didn't sign on? It's not as though the archbishop of Chicago has been timid in his criticism of the contraception mandate. And of course there's another body that really does represent the breadth and width of the Catholic Church in the United States: the U.S. Conference of Catholic Bishops. It opted out too. Why sue now?
Archbishop Lori: It's been clear from the beginning that we would seek every avenue of defending our First Amendment rights -- the Executive Branch, we've tried legislative remedies. And everyone understood that the clock is ticking.
Arroyo: This kicks in in August.
Lori: It's going to kick in in some of these institutions in August. So we didn't have much of a choice when it came to timing. Some would say, "Well perhaps you could wait to see how the suits against the overall health-care bill go, and maybe it will be disabled there." We can't wait.
Arroyo is right: According to the final regulations, in the month of August some religious organizations will have to cover contraception for employees. He just failed to note the year, which is 2013. And if the Obama administration makes good on its promised accommodation, those organizations -- including those that self-insure -- won't have to contract or pay for contraception coverage. So of course the complainants had a choice. They could have waited for the Supreme Court's decision. They could have waited until the comment period on the proposed accommodation concluded. But they chose to sue now.
In the middle of the interview, Arroyo played a clip of White House Press Secretary Jay Carney responding to a question about the lawsuits. Carney explained that the policy of the president meets "two important objectives": it ensures women have access to preventive services, including contraception, and it respects religious liberty. "Our door remains open to faith-community leaders," Carney said. Is that so? Arroyo asked. Lori's reply:
When I met with the president's chief of staff several months ago, what became clear was that there is no openness thus far to removing the constricting definition of what a religious body is, and no openness to taking the mandate itself off the table.... The president is pursuing his first goal, which is to make contraceptives and abortifacients universally available, but he is not pursuing the second goal [of protecting religious liberty].
Leaving aside the fact that in his previous diocese Lori allowed Catholic hospitals to dispense emergency contraception -- what he means by "abortifacients" -- to rape victims, there's no way the Obama administration is going to ditch the contraception mandate completely. Still, the president would do well to consider what the bishops are promising.
Cardinal Wuerl: To talk about the door being open--that's wonderful. But there has to be some productive results.... What never changes...is that definition.... The problem goes away if that definition is changed.
As administration officials work to finalize the accommodation this summer, they should ask themselves: Is this definition of religious employer worth the headache? What does it get them? How does it benefit their policy goals? Is it the only way to achieve those goals? If the answer to that last question is no, then perhaps the most prudent course is scrapping the narrow definition in favor of something with a bit more statutory precedent.
