Tinkering with conscience

When running for president, President Barack Obama did an extraordinary job of recapturing significant portions of the Catholic vote for the Democratic Party. John Kerry, himself a Catholic, received 47 percent of the Catholic vote in his run against George W. Bush in 2004. Obama, however, received 54 percent of the Catholic vote in 2008, a full 7 percentage point gain.

With something like 70 million Catholics residing in the U.S., influenced by nearly 60,000 clergy, it is no small matter politically for the president to find himself in a major public controversy with the Catholic Church. So when the firestorm kept growing over the Obama administration's decision that required Catholic sponsored health insurance plans to provide doctrinally objectionable contraception and sterilization, it was not surprising to see the president step forward to modify the policy. The votes at stake are simply too compelling.

The president's announcement on Friday to modify the administration's contraception and sterilization mandate for religious organizations, however, appears largely symbolic. It shifts the formal burden of providing the contraception and sterilization from the employer-based plan to the insurance company that provides the plan. Got that? The insurance company that underwrites the religious organization's plan, not the plan itself, will be required to offer these services at no direct cost to the consumer. In theory then (but only in the most formal and legalistic way) these so-called "preventive services" will not be paid for by objecting religious organizations.

So, according to the president, one needs simply tweak the mandate and religious liberty is preserved while free "preventive care" is available to all women.

But this latest controversy over the Patient Protection and Affordable Care Act is not a marginal, technical issue that is resolved with technocratic tinkering. Instead, it reveals precisely the kind of conflict created when top-down government mandates are forced upon civil society.

Until the rules are finalized, it is not clear that all religious organizations will be exempted. This stems from the thorny question of what counts as a religious organization. When a private employer is negotiating in an open market what gets included in a health care plan, the parties need not worry about whether religious motivations are behind what services are asked for in a plan. But when this is now a government mandate, suddenly government becomes entangled with definitional questions about whether a religiously motivated but unaffiliated college, for example, might qualify for these kind of conscience exemptions.