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Catholic Groups Sue Over Contraception Coverage

May 21, 2012 at 12:00 AM EST
A group of Roman Catholic leaders and institutions sued the Obama administration over the federal mandate to provide birth control to employees, saying it violated religious freedom. Gwen Ifill and The Wall Street Journal's Janet Adamy discuss the lawsuit.
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GWEN IFILL: A bitter dispute over whether the government can force employers to offer birth control coverage is heading to court; 43 leading Catholic institutions in eight states, including the archdiocese of New York, Washington, Houston and Pittsburgh, as well as two universities, filed suit against the Obama administration today. The administration issued the mandate in January and then modified it after a leading scientific advisory panel recommended new coverage to improve maternal and child health.

For the latest and the background, we turn to Janet Adamy, health editor of The Wall Street Journal.

Welcome, Janet.

JANET ADAMY, The Wall Street Journal: My pleasure.

GWEN IFILL: What is the basic disagreement right now between the Catholic Church and the Obama administration?

JANET ADAMY: So, Gwen, the basic disagreement is how this policy would be implemented.

As you explained, this is part of President Barack Obama’s health care law that was passed in 2010. The original idea was that consumers would get a batch of preventative health services, where they would have to pay no co-pay for the coverage. The Institutes of Medicine came out with a recommendations about which services should be covered.

And they said that birth control should be included in that. They labeled that as a preventive service. So, the Obama administration took up their suggestion on that and made that law. Well, what happened, where they ran into conflict, was the Catholic Church said, well, wait a minute. Not only do we not want to provide contraception without a co-payment; we don’t want to have it in our plans in the first place. And so our problem with this requirement is that you’re forcing us to provide birth control when historically we haven’t and we didn’t want to.

GWEN IFILL: But they came up with a — we last heard they came up with a middle ground, which is you don’t have to provide it directly.

JANET ADAMY: Exactly.

GWEN IFILL: As long as the institutes don’t provide it directly, then they would be safe. But. . .

JANET ADAMY: Exactly.

It’s a very carefully threaded needle.

GWEN IFILL: Right.

JANET ADAMY: The way they structured the compromise is that the employers, these Catholic employers, so colleges, Catholic hospitals, Catholic charities, they would still be required to provide the coverage to their employees. They would still get the benefit.

But the compromise was that the employer wouldn’t have to directly pay for it.

GWEN IFILL: Right.

JANET ADAMY: They would funnel the payment through the insurance company. Now, it’s kind of a tricky distinction, because really all of your payments get funneled through the insurance company.

But the administration was hoping that by structuring it that way, they could effectively give schools and hospitals the assurance that their dollars weren’t directly going toward this. And, initially, some Catholic groups were optimistic that if you structured it the right way, they could have a sense of confidence that if they objected to this policy and objected to providing this on moral grounds, that they could feel like that that they weren’t paying for it.

GWEN IFILL: And they agreed, all sides agreed, they would get behind the scenes and they would work something out. But here we are now with a lawsuit. Obviously, things fell apart.

JANET ADAMY: They did.

And what the plaintiffs, which the highest-profile plaintiff today is Notre Dame, what they said was, look, you know, we have been talking to the administration for a couple of months now and we haven’t come up with a solution yet. We’re not very optimistic that we’re going to.

Their concern is that, you know, there’s a deadline by which, you know, by next year, where they have to implement this. They have to make plans for their insurance plans for students starting in the fall and what they’re saying is this is taking too long to work this out. And they’re worried that they are not going to be able to negotiate a solution, so they turn to the courts instead.

GWEN IFILL: Is one of the sticking points that the definition — we’re all into definitions here, but the definition of what a religious institution is?

It’s not just the church, it’s not just a hospital. At least this is what the Catholic Church says. It’s not just an archdiocese. It’s more than that.

JANET ADAMY: It is.

And one of the aspects of this provision the administration felt very confident about was they carved out an exemption for Catholic churches. So, if you’re a church and you employ people, there is a wider exemption. But what the Catholic bishops are saying is, look, you may not be a church, but University of Notre Dame, Georgetown, a Catholic hospital, they still should have every right. And for that matter, an employer who may not be — you know, it may be a person, a small business owner who is Catholic who objects to this.

They’re saying that the law doesn’t have any protections for those people that they feel they should have.

GWEN IFILL: The White House did this, I assume, because as we mentioned there was a scientific group that said this was a good idea to expand coverage to more people. And yet it seems to have put the White House not only here in this case, but also when it comes to who is speaking at whose colleges on commencement day into a pretty critical standoff with the Catholic Church.

JANET ADAMY: Yeah, it has.

Kathleen Sebelius, the health and human services secretary, was invited to speak at a Georgetown policy commencement ceremony last week. And there were some protests at that. There were some criticism about that.

Another interesting aspect to this is with the Notre Dame connection. President Obama was asked and did speak at Notre Dame’s commencement in 2009. And so the fact that now, you know, somebody who’d been seen as a — a school that had been seen as an ally of the administration is taking this turn is kind of a striking turn.

GWEN IFILL: Among other things, the Catholic groups today said that they felt there were no more viable options for them. Was there ever a viable course, or was — if you decided this was a moral issue that was being imposed on you by the government, was there ever going to be a way to thread that needle?

JANET ADAMY: Well, it’s a good question.

I think both sides were optimistic they could try to come to some kind of a compromise. One of the sticking points is that, for a lot of employers, they do what’s called self-insuring. If it’s a large employer, they actually take on the risk of providing — of paying out claims. And they may hire an Aetna or a WellPoint to basically be their administrator.

So, their beef was that they said, well, there isn’t an insurance company for us to funnel this through. Because we use this self-insured model, we don’t have — there isn’t anybody that we can essentially pass this cost on to. So I think that was a large sticking point.

I think both sides were hopeful that they could come to an agreement. But it is very tricky to say that you’re going to still require the employer to provide the coverage, but at the same time try to structure it in a way where they don’t feel like they’re supporting the policy.

GWEN IFILL: But so now that this is in the courts, is there a legislative solution still possible through the states or through the — or in a way that will work its way to the Supreme Court?

JANET ADAMY: Well, I think it will be interesting to see what happens with the lawsuit.

I mean, there if — you know, it’s not out of the question that the lawsuit could block it. It remains to be seen how that would play out. I think one of the interesting things to point to is the broader lawsuit that is taking place against the health care overhaul that was considered by the Supreme Court in march and is expected to be decided on in June.

Back when those lawsuits were first filed people thought, well, that is a messaging lawsuit. It doesn’t have a really good chance of passing or actually peeling back the law. And I think the feeling this time around is that even if it’s not clear that there’s a very strong legal case, that it could have big implications for whether the administration decides to stick to its guns on this policy or possibly back away from it.

GWEN IFILL: Another assault on another kind of mandate in the health care law.

Janet Adamy of The Wall Street Journal, thank you so much.

JANET ADAMY: My pleasure.