What ISIS Can Teach Us About the HHS Contraceptive Mandate

What ISIS Can Teach Us About the HHS Contraceptive Mandate August 22, 2015

The courts are back and forth on whether the current HHS rules violate the religious freedom of non-church religious employers. (You, for example, have some kind of religion or philosophical system.  If you were an employer, wouldn’t you want to follow your principles, even if it was just a public car wash or a daycare you were running? You are the kind of people these cases are talking about.) Kathy Schiffer writes on the latest in the ping-pong:

A federal appeals court ruled August 21 that nine Catholic groups in Michigan and Tennessee must provide birth control in their employee health insurance plans.

. . . It was the opinion of the Appeals Court that their religious rights are not substantially burdened by a process created by the federal government for opting out of providing contraceptive coverage due to religious objections.

. . . Meanwhile, another court ruled in favor of the Little Sisters of the Poor in their case against the HHS Mandate. A ruling today by the 10th Circuit Court of Appeals found that the Little Sisters of the Poor did not need to pay for contraception for their employees, nor pass the responsibility for contraceptive care along to another organization.

You can read about the process that is being debated at the HHS website.  The debate comes down to this: The government has put together a method that, in their opinion, allows religious people to avoid directly paying for coverage they have moral objections to, but still allows their employees to access the covered services.

It’s an effort at compromise, but the compromise does not meet its goal.  We’ll talk at the end about some simple ways this goal could be achieved using existing systems that would be morally unobjectionable for all.

First let’s look at what the process entails, morally speaking.  We’ll call in ISIS to help us.

The Trouble with Other People’s Religions

The difficulty in making sense of someone else’s moral system is that the other guy is wrong.  We certainly hope so, anyway — if you think a person’s religion or philosophy is correct, you ought to be following it yourself.

Other people’s moral qualms seem like so much petty delicacy. I can remember the moment of utter bewilderment in middle school when it dawned on me that my observant Jewish friend would never, ever, eat a bacon cheeseburger.  Furthermore, the depth of someone else’s objections can be difficult to grasp.  Is this bacon thing on par with murder and theft?  Or is it more like a preference or a discipline?  Would you rather die than make a cheeseburger, or is it actually just fine to make and serve the food, you just aren’t planning to eat it yourself?

Other people’s religions pose questions we can’t answer from the outside.

So let’s be clear: Despite the fact that there are many, many bad Catholics in the world who ignore the Church’s teaching on contraception (the rest of us find other, more interesting ways to be bad Catholics), contraception is a serious sin.  It’s an on-par-with-murder sin.  Indeed, it’s rather viewed as murder-before-the-fact — the willful preventing of the existence of a person who should have been.

That’s a hard thing for non-Catholics and dissenting Catholics to grasp.  It’s an idea so foreign to our present culture that it becomes impossible to believe faithful Catholics truly object to the practice at such a profound level.  The fact that the teaching is so widely disregarded by Catholics only cements the opinion that this is a matter of mere preference or discipline.

It is very hard to understand the moral implications of the HHS mandate if you are fixed on the idea that contraception is just this minor thing, a personal practice of no great significance.

Ethical Conflicts Make No Sense if You Don’t See the Conflict

So what we need to do is look at the process through a different lens.  What we want to see is whether the requirements of the HHS would be sufficient accommodation for your freedom of conscience if the law concerned not contraception, but some other thing.  So let’s pretend, just for a moment, that the HHS mandate requires employers to subsidize a practice that I hope you find reprehensible enough that you want nothing to do with it, ever, under any circumstances: Sex slavery.

Pretend, God forbid, that ISIS settles down into a less-ravenous kind of calm, where people are oppressed and bought and sold, but where there are certain accommodations given lip service all the same.  In a grand gesture of mandatory almsgiving, the dear leaders at ISIS decree that all employers shall provide their male employees with comprehensive mental health coverage, and that this includes the procuring of sex slaves on the boss’s dime.

The way this works is that employers pay for a health insurance plan that covers broken legs and brain surgery and group therapy and the  purchase of a certain number of sex slaves each year.  (Probably just one every other year, like new glasses frames under the low-budget vision plan — which at $3000 a pop works out about the same as some of the more expensive forms of contraception.  And it’s not like everybody’s going to re-up on their slaves every other year, so the cost gets spread and shared.)

ISIS, in its broad-minded generosity, has acknowledged that some Muslims object to the buying and selling and raping of other human beings, and it wishes to accommodate that scruple — but not at the expense of workers who need their base urges gratified.  So they crib notes from the HHS and work up an identical deal:

The final rules also lay out the accommodation for other non-profit religious organizations – such as non-profit religious hospitals and institutions of higher education – that object to sex-slave coverage.   Under the accommodation these organizations will not have to contract, arrange, pay for or refer sex slave coverage to which they object on religious grounds, but such coverage is separately provided to men enrolled in their health plans at no cost.  The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders.

With respect to an insured health plan, including a student health plan, the non-profit religious organization provides notice to its insurer that it objects to sex slave coverage.  The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for sex slave services for as long as they remain enrolled in the health plan. 

Similarly, with respect to self-insured health plans, the non-profit religious organization provides notice to its third party administrator that objects to sex slave coverage.  The third party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for sex slave services for them for as long as they remain enrolled in the health plan.

In other words: If you have no scruples, you pay your insurance company, for example, $15,000 per worker per year, and in exchange they provide your employees with an array of services including the provision of sex slaves.

But if you do scruple, there’s an out: Pay your insurer the same $15,000 a year, but send along a note saying, “We object to paying for sex slaves.”  The insurer will then privately handle every thing on the side — your employees can still get their sex slaves at no additional cost, and using the wonders of white-out the line item on your insurance bill that says “sex slave coverage” will magically disappear.

See?  All better.  You are in one stroke of the pen absolved from all involvement in the transaction — other than that you just sent orders to your insurer telling them to please handle the sex slave thing so you don’t have to.

Contraception and Sex Slavery Are Not the Same

Now you may be thinking, “Well, yes, concerning sex slavery I’d find the accommodation to be so much slight-of-hand.  But we are not talking about sex slavery.  We are talking about something that’s a human right, like food and water!”

So pretend for a moment than instead of contraception, the HHS mandate calls for employers to purchase apples.  Or some other completely harmless thing.

Pretend further that some nutcase in Iowa has an anti-apple (or whatever) religion and says his rights are being violated by this so-called accommodation that leaves him footing the bill for the thing he abhors, and even having to send a note of instruction, explicitly asking someone else to handle the distribution of the awful thing.  The rest of us think it is just no big deal — we may or may not think the government should be mandating apple-provision, but it’s hardly worth occupying the courts for years on end settling the stupid matter.

Is there a different way to provide apples (or any other contended service) to employees, without requiring employers to be involved in the purchase of the disputed item?

Yes there are.  Furthermore, they are all methods that are proven to work effectively and efficiently.

How to Have Your Apples and Your Clean Conscience Too

Let’s look at the three most likely candidates for managing any disputed health care questions:

1.  Cash.

Remember cash?  Your employer cuts you a check each month to compensate you for your labor, and you can use the money to buy whatever you like. The HHS could require that employers who don’t include the full array of services in their insurance coverage instead pay their employees in cold hard cash to compensate them.  The employees can then go buy the health services they want, or use the money some other good way.

2. Health Care Savings Accounts

But what if you are concerned that women will squander their cash foolishly, rather than setting aside the funds to purchase needed health care?

In this case, the employer who doesn’t purchase the whole array of mandated services sets aside funds sufficient to pay for the lacking services, and puts the money into health care savings accounts.  Women can then use the money to purchase what they need, but only if it’s health care.

3. Supplemental Health Insurance

But maybe women are too sneaky to be trusted with a health care savings account.  They might buy all the wrong medical services.  They must have the powerful incentive of free stuff to get them to take their pills like good girls.

In this case, employers who object to covering the full slate of services required by the government can set aside sufficient funds to allow the employee to purchase the remaining coverage herself.  She can choose to write the note purchasing the contraception or choose to leave the money on the table, but it is she, not the employer, who actively picks up the cash and uses it to buy the services.

This last option stands at the hairy moral edge.  “Okay, here’s the money you could use to buy sex slaves, and it can’t be used for anything else, but I’m not involved in whether you use it or not.”  To make this an unequivocally moral option, the designated funds ought to be usable for any kind of supplemental insurance coverage, so that the employer isn’t in the position of creating a temptation to purchase an objectionable service just because the money’s there and will otherwise go unused.


These solutions aren’t complicated.  If you actually believe there is no compulsion in religion, the HHS contraceptive conflict is easily resolved.

Kurds and Armenians protest Turkey.jpg

Photo by Raveen Kajo (VOA) (Voice of America) [Public domain], via Wikimedia Commons

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