Won't You Come Home Bill Daley?

The past week saw a tardy footnote explaining in part how the Administration was able to cram  ObamaCare down the throats of  Americans who overwhelmingly opposed (and still oppose) it.   After the government spent $ 1.8 million dollars to defend  the Justice Department lawyers who prosecuted  the late Senator Ted Stevens, Judge Sullivan announced he was going to make public the 500 page report of the independent investigation of this team. In doing so he observed what I said long ago: 

"The government's ill-gotten verdict in the case not only cost that public official his bid for re-election, the results of that election tipped the balance of power in the United States Senate," Sullivan wrote. "That the government later moved to dismiss the indictment with prejudice and vacate the verdict months after the trial does not eradicate the misconduct, nor should it serve to shroud that misconduct in secrecy." 

The Attorney General has taken no disciplinary action against the prosecutors, and Judge Sullivan's remarks were not broadly publicized, but I want you to read and remember them.   An innocent , respected Senator was tried and convicted and lost his office, and the Republicans  their Senate majority -- paving the way for ObamaCare -- because of the unlawful, unethical, unprofessional conduct of federal prosecutors, who we then paid a fortune to defend and who have not ever been punished for what they did.

That 's the backdrop of this week's story: How a faction of the White House used that ill-gotten law to try and forever diminish all of our rights to freedom of religion .( It is  not "freedom to worship" as Obama often erroneously says -- substantially diminishing the breadth of the Constitution -- but freedom of religion,)

ABC and Politico offered up the detailed genesis of the Administration's crackpot overreach which would use ObamaCare as a vehicle to force religious organizations to offer birth control, abortifacient and sterilization coverage in health insurance packages of their employees, and to provide these services in their hospitals despite religious proscriptions they might have.

One always has to read these inside accounts carefully, because the  unnamed sources are generally portrayed as heroes and their opposition as villains.  But in this case, the representations of the views the various parties expressed in the run up to the publication of the final HHS regulations seem in all respects true to form and consistent with other accounts of White House operations.

ABC indicates that Defense Secretary Leon Panetta, chief of staff Bill Daley and Vice President Joe Biden , all Catholics with substantial political experience, warned the president off this course of action, arguing it was a politically bad policy which went against the law.  Other Administration officials (notably including Secretary of HHS  Sebelius and White House adviser Valerie Jarrett) argued -- as the proponents of the regulations would after the publication created a storm of protest -- irrelevancies -- particularly that Americans  and Catholics overwhelmingly supported birth control. This is irrelevant because the meaning of the Constitution is not a matter of majority vote or convenience.  But at the heart of the argument that prevailed in the end was the belief that this would draw the votes of suburban women and that Catholic women would be grateful for the intervention.  Planned Parenthood and a number of Senators, notably Barbara Boxer and Jeanne Shaheen also pushed hard for the rule.

The regulation's effective date was pushed back to 2013  before the final rule was published, ostensibly to give churches and other affected parties time for compliance, but in my view that was just pretextual.  I think the notion was that any attempt to  test it judicially before the election might be challenged on the ground of ripeness, a rule that generally precludes courts from hearing cases before their time. In this case since the institutions were not under any threat of penalty at the moment and the regulations might be revised between now and 2013, courts might not be willing to hear immediate challenges.

In any event, in Politico's account, the president wanted the regulations published before the State of the Union address. He figured that would be the end of the matter.

The Politico account details more thoroughly the tensions between Bill Daley who had "deep connections to the church hierarchy" and those on Obama's senior staff who advocated for the  position so inimical to Catholic doctrine.

Daley set up a four-man Oval Office meeting for himself, Obama, New York Archbishop Timothy Dolan and Vice President Joe Biden, who both shared the view that the policy would sink the president with Catholic voters.

Obama, a person close to him tells POLITICO, hadn't made any final decision, hadn't fully analyzed the dueling arguments, hadn't expressed a strong policy preference, and felt "mildly uncomfortable" being put on the spot.

On Jan. 20 - after a protracted internal debate over the policy's implications and lobbying from allies in the reproductive-rights community - Obama approved the mandate, to the horror of the conservative Dolan and even to more liberal Catholic allies such as Washington Post columnist E.J. Dionne.

From the standpoint of the 2012 campaign, the debate over birth control, the stuff of the 1960s, has opened a dangerous electoral schism for Democrats, pitting Obama's base of female supporters against the church and a GOP presidential field all too eager to seize on a perceived assault on religious liberty.

(I take issue with Politico on this very last point. While liberals have viewed women voters as a unified bloc of "feelers" rather than "thinkers" who can be easily swayed by emotional appeals , I think this may be less true than they think.  Women can understand the broader issues involved quite well, are not uniformly in favor of abortion , and not necessarily going to see the point of attacking religion in order to save working women $60 a month  pay for birth control themselves, especially since it is obvious that the cost will be paid by  all the employees and consumers in the end. )

Archbishop (soon to be Cardinal) Dolan must have taken good measure of the President, for he played his role like a maestro, initially expressing optimism that the White House would do the right thing and then making sure the Bishops throughout the country responded strongly with a promise of civil disobedience if the Administration did not back down once Obama had the audacity to disrespect  the Church and issue the regulations.  Daley had left the White House under fire for supporting Dolan , but Dolan was well armed for the second round.  He called the rule "literally unconscionable" and scoffed at the offered one year grace period, saying "In effect, the president is saying we have a year to figure out how to violate our consciences."

He  roused the attendees at the National Prayer Vigil for Life to speak out in opposition to the regulations and published critical op-eds in USA Today and  The Wall Street Journal. What began as a brush fire between  Daley and others in the Administration turned into a major conflagration this month  upon publication of the final regulations, and Daley was no longer there to serve as a mediator with Archbishop Dolan or others in the church.  By my last count  this week 167 bishops had come out in opposition to the Administration's move.

The Administration and its allies were less prepared than Archbishop Dolan, and by Friday, 6 Democratic Senators had issued statements of objection to Obama's move: Bill and Ben Nelson, Bob Casey, Joe Lieberman,  Joe Manchin and John Kerry. Representatives of other churches and religious congregations joined the fight.

The proponents of  the regulations were not about to roll over, but their arguments failed to carry the day and quell the storm. They continued to try to blur the issues by public statements suggesting the dispute was about whether or not one supported birth control.  It isn't.  It's about the First Amendment and whether the government by threat of substantial, ruinous fines can compel religious institutions to engage in conduct contrary to their beliefs.  Friday's Washington Post was an example of the disinformation push. Catholics for Choice took out a full page age comparing the numbers of Catholics they said supported  birth control versus those who opposed it. And its head Jon O'Brien wrote an opinion piece carried on the paper's On Faith Page.

A number of political hacks jumped into the fray on Obama's behalf.  Noted theologian Rep. Jerrold Nadler, for example, girded up to do battle.

"No one is telling the bishops anything about the religious practices of the Catholic church[sic]," said Rep. Jerrold Nadler. "What is at issue here is that the bishops want the ability to impose their religious beliefs on other people, on the employees of religiously affiliated hospitals and universities."

It was soon obvious that the White House wanted to kill the controversy it had started and would offer some sort of compromise; and by late Friday they did, despite such "brilliant" arguments as Nadler's.  The initial "compromise" leaked was so ridiculous it's hard to repeat it without laughing at the stupidity of the authors.

Hot Air did its best:

The revised Obama mandate will make religious groups contract with insurers to offer birth control and the potentially abortion-causing drugs to women at no cost. The revised mandate will have religious employers refer women to their insurance company for coverage that still violates their moral and religious beliefs. Under this plan, every insurance company will be obligated to provide coverage at no cost.

Essentially, religious groups will still be mandated to offer plans that cover both birth control and the ella abortion drug

According to Obama administration officials on a conference call this morning, a woman's insurance company "will be required to reach out directly and offer her contraceptive care free of charge. The religious institutions will not have to pay for it."

The birth control and abortion-causing drugs will simply be "part of the bundle of services that all insurance companies are required to offer," White House officials said.

The Los Angeles Times, Hot Air notes, calls this preposterous notion of "free insurance" "magical thinking."

Tom Maguire presented an even more devastating critique:

 "The Best things in life are free -- not really."

Catholics didn't seem delighted with the offer.  O Carter Snead of Notre Dame cogently argued that the "compromise" was nothing of the sort:

[Today's rule still requires religious institutions (on pain of ruinous treasury fines) to purchase insurance that covers these same objectionable services.  It is irrelevant that the rule requires the insurance company (rather than the religious institution) to explain to employees that the policy purchased for them by their employer includes the 5-day after pill. For institutions that self-insure, the situation is even worse; they will be forced to contact their employees and pay for such services themselves.

It is no answer to suggest that the religious liberty of such employers is being accommodated because they are not "paying" for the objectionable services.  First, it is naïve to imagine that the services are truly cost-free and that these costs will not be passed along to the employers who purchase these plans.   More importantly, the simple fact is that under this policy the government is coercing religious institutions to purchase a product that includes services that they regard as gravely immoral. 

We should ask ourselves why President Obama has sustained the narrow exemption for churches, religious orders, and auxiliaries? This is tantamount to the admission that this policy, just like the previous one, runs afoul of religious liberty.[Emphasis Supplied.]

Archbishop Dolan was too temperate to say "nuts", but he had to see this as an arrogant insult and  indicated he was reserving judgment until he saw the details. 

The President of the Southern Baptist Convention was more blunt:  

DR. LAND: Does he think he can put lipstick on a pig and we're gonna think it's anything other than lipstick on a pig? ... In the case of Southern Baptists, we have self-funded insurance through GuideStone, which has been around since 1918 and covers over 200,000 missionaries, social workers, pastors, church employees, nurses, doctors, et cetera. And I just talked to the head of Guidestone and he said "We can't do this. This violates our conscience because we're the insurance company, and we're not gonna be forced to pay for that which we find unconscionable."

When the Bishops did have time to study the matter, they were adamant that the changes did nothing and dismissed the mandate as still unacceptable:

WASHINGTON - The United States Conference of Catholic Bishops (USCCB) have issued the following statement:  The Catholic bishops have long supported access to life-affirming healthcare for all, and the conscience rights of everyone involved in the complex process of providing that healthcare. That is why we raised two serious objections to the "preventive services" regulation issued by the U.S. Department of Health and Human Services (HHS) in August 2011.  First, we objected to the rule forcing private health plans-nationwide, by the stroke of a bureaucrat's pen-to cover sterilization and contraception, including drugs that may cause abortion. All the other mandated "preventive services" prevent disease, and pregnancy is not a disease. Moreover, forcing plans to cover abortifacients violates existing federal conscience laws. Therefore, we called for the rescission of the mandate altogether.  Second, we explained that the mandate would impose a burden of unprecedented reach and severity on the consciences of those who consider such "services" immoral: insurers forced to write policies including this coverage; employers and schools forced to sponsor and subsidize the coverage; and individual employees and students forced to pay premiums for the coverage. We therefore urged HHS, if it insisted on keeping the mandate, to provide a conscience exemption for all of these stakeholders-not just the extremely small subset of "religious employers" that HHS proposed to exempt initially.  Today, the President has done two things.  First, he has decided to retain HHS's nationwide mandate of insurance coverage of sterilization and contraception, including some abortifacients. This is both unsupported in the law and remains a grave moral concern. We cannot fail to reiterate this, even as so many would focus exclusively on the question of religious liberty.  Second, the President has announced some changes in how that mandate will be administered, which is still unclear in its details. As far as we can tell at this point, the change appears to have the following basic contours:

  • It would still mandate that all insurers must include coverage for the objectionable services in all the policies they would write. At this point, it would appear that self-insuring religious employers, and religious insurance companies, are not exempt from this mandate.
  • It would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider.
  • Finally, we are told that the one-year extension on the effective date (from August 1, 2012 to August 1, 2013) is available to any non-profit religious employer who desires it, without any government application or approval process.

These changes require careful moral analysis, and moreover, appear subject to some measure of change. But we note at the outset that the lack of clear protection for key stakeholders-for self-insured religious employers; for religious and secular for-profit employers; for secular non-profit employers; for religious insurers; and for individuals-is unacceptable and must be corrected. And in the case where the employee and insurer agree to add the objectionable coverage, that coverage is still provided as a part of the objecting employer's plan, financed in the same way as the rest of the coverage offered by the objecting employer. This, too, raises serious moral concerns.  We just received information about this proposal for the first time this morning; we were not consulted in advance. Some information we have is in writing and some is oral. We will, of course, continue to press for the greatest conscience protection we can secure from the Executive Branch. But stepping away from the particulars, we note that today's proposal continues to involve needless government intrusion in the internal governance of religious institutions, and to threaten government coercion of religious people and groups to violate their most deeply held convictions. In a nation dedicated to religious liberty as its first and founding principle, we should not be limited to negotiating within these parameters. The only complete solution to this religious liberty problem is for HHS to rescind the mandate of these objectionable services.

We will therefore continue-with no less vigor, no less sense of urgency-our efforts to correct this problem through the other two branches of government. For example, we renew our call on Congress to pass, and the Administration to sign, the Respect for Rights of Conscience Act. And we renew our call to the Catholic faithful, and to all our fellow Americans, to join together in this effort to protect religious liberty and freedom of conscience for all.

A just-in Rasmussen survey shows why the Administration should give up -- it has utterly misread Catholic sentiment.  Scott Rasmussen:

among Catholics, only 28 percent believe religious organizations should be required to implement rules that conflict with church doctrine. Sixty-five percent are opposed. This is true even though many Catholics disagree with church teachings on birth control.

The impact is stunning since 54 percent of Catholics voted for President Obama in 2008. Today, just 39 percent of Catholic voters approve of the way he's doing his job.

Perhaps some strategists thought that Catholics would welcome government help in battling the church on birth control. But Catholics who disagree with the church deal with the situation in the privacy of their own bedroom. They don't need federal help. In fact, it is hard to imagine any person of faith wanting the federal government to have any say in church doctrine and how Holy Scripture should be applied.

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