HHS Mandate, Now Including Prestidigitation

Over at dotCommonweal, Grant Gallicho replied late last week to my long post here the weekend before. First Thoughts readers are probably tired of the exchange by now, and I am almost content to let Gallicho have the last word, because his last installment is so repetitive of what he has said before rather than actually meeting my arguments. But only almost. I’ll be as brief as can be, and shake the Commonweal dust from my feet.

1. Gallicho has again conceded my argument that the religious employers newly “accommodated” under the latest proposed policy from HHS will still be paying for the contraceptive/sterilization/abortifacient coverage.  He just has his own peculiar confusion about what “paying for” means in this context. Sorry, it’s not like buying a banana and worrying about what the grocer will spend the money on. He might learn something from the amicus brief filed in the Hobby Lobby case on behalf of Abbot Thomas Frerking of St. Louis. Look particularly at the discussion beginning on p. 22. Or see this brief on behalf of Notre Dame emeritus professor Charles Rice, especially p. 22 and following. (And before anyone objects that these arguments are about for-profit employers getting no break in the HHS policy, see point 6 below.)

2. As for the subject of intention in Catholic moral reasoning, I am supposed to be a complete babe in the woods, according to Gallicho. But I had not previously thought that “intention” can be adequately translated as “what I really subjectively want to accomplish by this act that has its own objective meaning I choose to ignore.” The completely secular field of contract law does not hold this, and neither does the Church. I cannot say with confidence that Gallicho does not mean this, but I am compelled by charity to hold out the possibility that he does not.

3. He thinks that by the shorthand phrase “illicit coverage” I mean a “thing,” not an act. Wrong.

4. He evidently thinks that the potential choices of others to act badly in their own realm of freedom of action (as by purchasing their own insurance if an employer doesn’t provide it) have some bearing on the rightness or wrongness of one’s own actions in one’s own realm of choice. Curious moral calculus, that.

5. He confirms that he is as statist as I thought, regarding the decision of a government to compel behavior to which one objects on religious grounds as no different from taxation for spending on purposes to which one objects.

6. He remains completely silent about—and so tacitly concedes the accuracy of—my description a week ago of what the “accommodation” accomplishes by way of a change in policy “before” and “after” its effect on the regulation.  The employer’s insurance contract remains in every respect the same, except that the new policy resolves to tell a falsehood about it.  As another Hobby Lobby amicus brief —this one filed on behalf of the Archdiocese of Oklahoma City—puts it (p. 16), “Catholic doctrine . . . prohibits providing, paying for, or facilitating access to (among other things) abortion-inducing drugs and devices.” There is no question that such provision, payment, and facilitation will result just as much from the “after accommodation” policy as from the “before accommodation” policy, which was indistinguishable from the policy then and now for all other non-religious employers. There is only a cynical “presto, change-o” of making the provision “disappear” in the paperwork of the “after” policy.  No reason to be gulled by that, unless you have a standing interest in being gulled.

7. He changes the subject to talk about self-insured employers at one point. Different form of the same problem, but we weren’t talking about that.

8. Gallicho is also silent on the Obama administration’s decision to become the arbiter of how much religious freedom different actors get in our civil society. If the “accommodation” is the right outcome for religiously affiliated nonprofits, why not for other nonprofits and for-profits? The answer is obvious. Even the Obama administration cannot maintain with a straight face that everyone gets free contraceptives and abortifacients, with no one paying for them. But by the same token, why not move to cover the currently exempt group of “religious employers” with the same policy as is now proposed for religiously affiliated nonprofits? Surely there’s a “war on women” to be fought in that sector of employment! By Gallicho’s own lights, the full exemption ought to be eliminated for houses of worship and the like, and replaced by the “accommodation,” which really does, if you squint at it hard enough through a dotCommonweal lens, let everyone off the hook. Then all women get their “preventive services,” all consciences are salved, and everybody’s happy, right?

I’m only amazed that Gallicho has not proposed this statesmanlike solution to Secretary Sebelius.