The latest from HHS et al. is available here. I have the luxury of being able to read the thing carefully before deciding what I think about it. A few things, though, seem clear, from a quick first read:
First, the proposal does not change the fact that for-profit businesses are required to provide the preventive-services coverage, even if their owners have religious objections to doing so. This is not the "Taco Bell" problem, but the (I think) real problem that a number of small-ish businesses will be required to act in ways that run counter to their owners' desire to participate in the commercial sphere in a way that is consistent with their religious commitments. The RFRA lawsuits will continue.
Second, the four-part definition of exempt religious employers has been changed (or, it is proposed that they be changed), and the most objectionable parts of the current definition (the ones that invited inquiry into whether the organizations served primarily co-religionists, for example) are being removed. However, it is still the case that the exemption is limited (p. 20) to "churches, their integrated auxiliaries, and conventions or associations of churches, as well
as to the exclusively religious activities of any religious order." So, it appears that, even under this proposal, a number of religious social-welfare organizations will not be "exempt" (though some will probably be covered by the "your insurance company will pay instead" "accommodation").
Third, while the document includes some discussion about self-insured employers, this proposal does not resolve the issue for such employers. On p. 67 of the linked-to document, it is clear that the section having to do with self-insured group health plan coverage is T/B/D.
I'm sorry to see that, in some com-box corners of Catholic blog-world, the knee-jerk reaction to this proposal is to snark about those mean and right-wing Catholic bishops and activists for whom nothing will be good enough, etc. This reaction is not appropriate, in part because it was almost certainly pressure from the bishops and from religious-freedom activists (and also concerns about losing lawsuits) that convinced the Administration to propose new rules (which, again, might not, in the end, cure the mandate's religious-freedom defects) and also because there's no reason why the bishops and activists should welcome even a new proposal if it turns out that the new proposal doesn't cure those defects.
UPDATE: Here is Yuval Levin:
This document, like the versions that have preceded it, betrays a complete lack of understanding of both religious liberty and religious conscience. Religious liberty is an older and more profound kind of liberty than we are used to thinking about in our politics now. It’s not freedom from constraint, but recognition of a constraint higher than even the law. It’s not “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” but the right to answer to what you are persuaded is the evident and inflexible reality of existence, of meaning, of the universe, and of the mystery of human life. It’s not the right to do what you want; it is the right to do what you must.
Governments have to recognize that by restricting people’s freedom to live by the strictures of their faith they are forcing them to choose between the truth and the law. It is therefore incumbent upon the government of a free society to seek for ways to allow people to live within the strictures of their consciences, because it is not possible for people to live otherwise.
There are times, of course, when the government, in pursuit of an essential public interest, simply cannot make way for conscience, and in those times religious believers must be willing to pay a heavy price for standing witness to what they understand to be the truth. But such moments are rare, and our system of government is designed to make them especially so. Both the government and religious believers should strive to make them as rare as possible by not forcing needless confrontations over conscience.
The Second Circuit has upheld the decision of a public school to forbid a student from closing a middle school speech with the following: "As we say our goodbyes and leave middle school behind, I say to you, may the Lord bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace." The student sued on free speech grounds, and the court concluded that though the restriction was content-based, because the standard in public schools is deferential to the school ("reasonably related to legitimate pedagogical concerns"), and notwithstanding the school's need to come up with an "overriding" state interest, the school had done so here.
What was that "overriding" state interest "reasonably related to legitimate pedagogical concerns"? It was the school's "desire to avoid violating the Establishment Clause." But this was a student's own decision, uninfluenced by the school (indeed, opposed by the school). That did not matter. So long as the government "desires" to avoid an Establishment Clause violation -- whether the "desire" corresponds with what the Establishment Clause actually proscribes or not -- that is sufficient to overcome what might otherwise be an actual violation of a constitutional right (irrespective, I take it, of anybody's desires). But desires are tricky. People desire all sorts of things; sometimes those desires are constitutional, sometimes not, but I can't think of another context in which a constitutional dispute really depends so heavily on the desires of one of the parties, whether or not those desires correspond to actual realities. But why not be more forthright? This decision has nothing to do with the Establishment Clause. It has to do with the school's desire not to permit the religious language of the student's speech. So why is it necessary to bloat the Establishment Clause this way? But the endorsement test put us on the path of Establishment Clause "desires" and "appearances" long ago.
I know, I am a day early! Yesterday in my Catholic Jurisprudence class, we discussed Lorenzo Albacete and Benedict Ashley's chapters in Recovering Self-Evident Truths: Catholic Perspectives on American Law. Albacete frames his theological anthropology around Blessed John Paul II's Theology of the Body. Albacete writes that Genesis' account of the fall
shows that the need for another expressed in original solitude becomes an aversion to otherness and the desire to re-create the world to overcome this fear through power and manipulation. Original unity is lost as a result, and we feel the need to be protected from others with whom we have no choice to unite for certain purposes. Indeed, in many instances our perception of the other as other is in fact lost, and all we see is a reflection of our interests, the 'looking with lust" in Jesus' condemnation of adultery. Original nakedness is replaced by shame and distrust of the body as an apt vehicle of communication, making it instead an object for domination
leading to "radical alienation." But, we are called to higher things.
Human personhood is in fact a capacity for, and a call to, a communion of mutual self-surrender between persons, a communion of love. This capacity and call to communion is what distinguishes the human person from the animals. It is in this capacity and call that we discover what it means to be created in the "image of God." Amazingly, it is the human experience of bodiliness, of our material dimension, that reveals that we are called to personal fulfillment by engaging in a relationship with the Mystery of God at the origin and destiny of our existence.
Next week we will discuss Avery Cardinal Dulles' chapter, Truth as the Ground of Freedom.
So what does any of this have to do with Ground Hog Day? I have a simple brain, and it always helps me to see things in simple terms. As I read Albacete and anticipate Dulles, Bill Murray's character in Ground Hog Day came to mind. As he relives February 2 over and over again, Murray's character uses his power (knowledge of the day's events) to manipulate and use others as objects of domination. This isn't satisfying, and in his radical alienation he spends several February 2's unsuccessfully trying to kill himself. It is only when he learns what freedom is truly for and begins to live his life as gift for others that the calendar turns to February 3. Happy Ground Hog Day!
