(photo: @Doug88888/flickr)

I see that the Conference of Catholic Bishops has figured out how the Obama Administration has either cleverly or by fumbling finessed the contraception insurance coverage issue while exposing the Bishops to the charge their demands are more about using government to restrict women’s rights than violating the moral conscience of a bunch of old men.

The Bishops are upset because they wanted contraception to be banned, and if not banned, then at least not covered by insurance, and if covered for some, then not covered for others, with the exceptions eventually swallowing the rule. They now realize they lost. Virtually everyone in the relevant group must be covered under the “compromise” rule.

Now they are forced to put aside their phony religious liberty argument — this was always about imposing their views on everyone else — and foment against the rule on the basis that no one should get contraceptives and government should enforce that restriction.

I’m sorry, but contraceptives became inevitable from the first bite at the apple, and there’s nothing the Bishops can justify now to take away Eve’s entirely reasonable response: “You can have a bite, Adam, but use a condom.”

They say “God works in mysterious ways . . . ” but this one has most of the media completely bamboozled into thinking Obama compromised or blinked or something. And perhaps even he may believe that. My front page New York Times tells me he was forced to “soften” the contraception policy to accommodate supportive liberal Catholics like Sister Carol, the head of a Catholic hospitals group. Fine. I’m glad they are happy, but I think what Obama did actually strengthened the underlying public policy.

Even stranger, the WaPost’s Sarah Kliff quotes Administration spokespeople doing their best to obscure how simple and clarifying the new rule is. To see this, recall that the medical cost studies show it costs less to provide contraception than to not cover it. One way this scheme might work, then, is that the insurers explain the policies one way to the employer, then interpret and implement them differently to the employee via a separate letter or rider. The care providers know this and bill accordingly. Then you realize that the insurers won’t be eating extra costs from covering contraception; they’ll be pocketing the savings because the premiums collected via the religious employers can assume that the employees aren’t covered, even though they are. The collective winking this requires is astonishing. The gods are smiling.

This was always about a health services issue and how it gets paid for, without letting ideological zealots dictate what services get covered. The fact that America still funnels health payments through private insurers and collects the premiums via employers redirecting what would otherwise be employee wages and salaries complicates matters, making US health care more costly, creating terrible incentives, and confusing everyone. So let’s sort out the basics.

When government does this, as it does for Medicare, everyone old enough is covered. We then collect the revenues through taxes on tax payers and workers, taken out of their paychecks. The government decides what medical services are covered. Employers don’t provide health care; they are agents for collecting payroll and withholding taxes, and it’s not their role to tell the government what medical services to cover. That’s an issue to be decided by government through their representatives and administrators. No responsible government would allow the Bishops to dictate their religious beliefs about which services Medicare can or cannot cover.

Employer-provided health insurance is inferior — more costly, subject to perverse incentives that must be regulated — but it’s subject to the same concepts. The government can still decide, if it chooses, which medical services to cover as a national health policy. So if the rule is cover contraception, then insurers must do that. The employers are still nothing more than tax collectors, or in this case, premium collectors, and once the government decides what must be covered, it’s not up to employers, religious or otherwise, to compel government not to cover something.

As I’ve argued before, the Bishops want to compel the government to choose covered medical services based on the Bishop’s religious preferences. That would obviously violate the establishment clause of the Constitution’s First Amendment. The Bishops also argue that many of their institutions self insure. So? If an institution wants to function as an insurance company, it can, but that doesn’t create any special privilege to ignore the coverage rules that apply to all other insurance companies.

What the revised Administration rule does is to separate the government’s role in deciding the essential medical services that insurers must cover from the revenue collection function of the employers who elect to offer employer-provided insurance. Employers don’t have to offer insurance, but if they do, the insurance must meet the minimum national insurance requirements.

The new rule properly puts religious institutions in the right context. The Bishops will squawk, because they want to control the government role. But they are fighting the First Amendment when they make that demand.

Digby shares some other views.



John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley