Tom Berg has an encouraging post up at Mirror today which I encourage all to examine: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/the-beginning-of-a-walk-back-on-the-contraception-mandate.html .
I think that Tom's notice of an incipient 'walk back' on the part of HHS is provisionally very good news both for the cause of free exercise and association, and for the cause of socio-economic justice consistent therewith. (As Tom notes, when Chris Matthews - and, we might add, E.J. Dionne and countless other similarly situated folk - gasp aloud at the clumsiness of a putatively graceful Democratic President, that President has assuredly mis-stepped.)
One possibility under consideration is to adopt a model of exemption similar to one used in Hawaii. This would allow religiously affiliated institutions to refrain from covering objectionable devices or procedures, require insurers to permit employees of such institutions to purchase the excluded coverage on their own at the same pro rata rates, and require the religiously affiliated institutions to instruct the individuals how to go about procuring those still equally affordable devices or procedures.
I think the first two parts of this proposed solution altogether well advised. I would register one provisional objection, however, to that third piece of the Hawaiian model of accommodation. To my thinking, a state-imposed requirement that religiously affiliated institutions provide detailed instructions on how to procure that which the religious communities themselves see as wrongful is both profoundly demeaning of those religious communities and their adherents, and ominously close to first-amendment-violative forced speech or commandeering.
I accordingly find Tom's suggested reformulation of this provision, over at MOJ, much to be preferred. Per his suggestion, the religiously affiliated institutions would simply advise individuals of the devices and procedures not covered by the institutions themselves, and let them know that they can find out further details by contacting the insurers.
I would perhaps even do Tom one further in the direction of generality by adopting some such language as this:
Because we are a(n) [Name of Ecclesial Affiliation] institution, there are some devices and procedures offered by some medical providers for which we are not able, in clear conscience, to subsidize insurance coverage. For further information please consult your insurance provider.
Let me also note here in passing, if I may, that were the U.S. to adopt a single-payer mode of insuring health as do all of our peer nations, we would not only enjoy a much more just and efficient spread of health risk over our population, but also would not be faced with the many Ptolemaic contortions we can expect in the years ahead, of which the present conundrum is doubtless but one early instance. (Even given that the 2010 reforms are preferable to what went before, as I maintain they are.)
It is only fitting, I suppose, that a putatively 'progressive' President who alienated scores of millions of his supporters by taking 'single payer' 'off of the table' in the 2009-2010 health insurance reform efforts now finds himself alienating many of those same supporters a second time, along with other 'moderates' and 'conservatives,' as his HHS collides with first amendment values in trying to make a social insurance program of what remains for the most part a privately provided such 'program.'
(Cross-posted at Mirror of Justice)