Scruples and Serfdom — 21 February 2012

A friend of a distinctly progressive bent asked me recently what I thought of the controversy over Obamacare, contraception and the Catholic Church. In a word, it is symptomatic of the arrogant power grab that is Obamacare.

The controversy began when the Department of Health and Human Services issued a ruling under the new health care law.  This law, despite its 3,000 (mostly unread) pages, only provides the outline of what Obamacare will look like in real life.  For details, it mandates literally thousands of times that “the Secretary of HHS shall…” make this or that decision or ruling.

For example, the law states that in order for an insurance policy to pass muster with the federal paymasters it must provide preventative care free of co-pay or additional charge.  When the Democrats passed the bill, they left it up to HHS to determine what is meant by preventive care.  (One can only guess how insurance companies will set premiums when they don’t even know what they need to provide until HHS gets around to telling them.)

Now I’m sure that the well-meaning bureaucrats over at HHS fully intend to require those services that will, by reducing the incidence of major disease, result in lower overall health care costs.  But it bespeaks, shall we say, a particular mindset to include pregnancy as one of those expensive conditions the prevention of which ought to be free of charge.  It smacks of a kind of utilitarianism, distilling as it does the humanity out of very personal decisions and making them subject to arbitrary bureaucratic rule.

After the controversy broke, the folks at HHS assured the public that they had carefully weighed the concerns of the Catholic Church and other religious groups when they issued the ruling.  After all, they did exempt places of worship from the requirement to pay for contraception, sterilization, and the like for their employees.  But at some final policy meeting, someone persuasively made the case that for Church-sponsored hospitals, universities, charities and the like, society’s need for free contraception trumped the ethical teachings that the Church had consistently preached for hundreds of years.

I can hear the comments now: “These old fossils need to get with the program.  Birth control is the norm in this country now.  Even a majority of practicing Catholics use birth control.”  And it’s true, the proponents have the numbers on their side.  But show me where in the First Amendment it says that issues of personal conscience are subject to majority rule.

This is the whole point of the controversy.  The First Amendment specifically protects citizens from the government encroaching on matters of faith.  What more directly encroaches than for the government to say to a religious institution, “you must pay to provide this activity which you find morally repugnant”?

And I have no sympathy whatsoever for the argument that in declining to provide such services, Catholic organizations are “imposing their religion” on their employees.  An employment contract is a voluntary agreement between autonomous parties; if the employee found the lack of free contraception an onerous condition, he or she would be free to seek employment elsewhere.   Besides, citizens are not prevented by any law or custom – and certainly not the Constitution – from conditioning their workplaces according to the dictates of their faith.  Does anyone realistically think he could insist on ordering a cheeseburger in a kosher restaurant?

No, the protection of religious scruple extends to the government alone, because only the government has the power to compel someone to violate her conscience.  In this case, without a reprieve from HHS, institutions from Catholic charities to the University of Notre Dame would have to pay a ruinous fine – some $2,000 per employee – to follow the dictates of their moral convictions.

Fortunately for the affected institutions, they had enough clout to make their objections heard – and in the world of Obamacare, that is crucial.  So the administration did a quick backpedal, and arranged what they called a compromise: for those objecting institutions, the government will require that the insurance companies themselves will have to pay for these procedures.

There are lots of things wrong with this “solution”.  First of all, large organizations often find that they have among their own employees’ ranks enough actuarial diversity that they can insure themselves and cut out the middle man.  So when there is no insurance company to stick with the ruling, who provides the abortifacient drugs and all the rest?  HHS says they will work out a suitable compromise, but it is going to require a fig leaf of Brobdingnagian proportions.

The second problem comes from two truisms: money is fungible, and insurance companies won’t give anything away.  So the Catholic institutions’ premiums won’t go down (in fact they might well go up because of the extra bookkeeping costs), but they will be told their money will be going to pay for some other company’s non-controversial procedures while that company pays for the birth control.  Of course, once the money goes into the insurer’s pool, there’s no way of telling whose money pays for what.  This is akin to the old practice of having one random member of a firing squad shoot blanks.  It may salve your conscience a bit, but the result is precisely the same.  This is why the Catholic Bishops were unimpressed: it is a distinction without a difference.

Finally, and most troublesome from the larger policy standpoint, this “resolution” was pulled together in a matter of days.  I wonder how much the insurance companies were consulted before this additional requirement was forced down their throats.  This arbitrariness is built into Obamacare from top to bottom, and is a major reason for popular opposition to it.  Liberals may speak the literal truth when they say that the government has not taken over America’s health care – that would require a single-payer system like Canada’s – but it’s also true that government has arrogated to itself the right to control the system down to the smallest detail.  It’s not a government takeover in the same sense that the Soviet Union did not take over East Germany.

And when the government has control, the ability to influence government becomes a key competitive attribute.  One of the first rulings of this law was on the requirement that at least 80% of an insurer’s premium income be used directly for health services.  Congress wrote in that detail because it seemed to them that more than 20% spent on overhead was excessive.  When this caprice met real life, employers like McDonald’s with many part-time workers determined that their mini-policies didn’t meet that criterion, and told HHS they were going to cease providing health coverage.  HHS issued McDonalds a waiver, and ultimately did so for many companies, unions and the like.  But is there any chance that everyone so burdened got a waiver? Of course not.

So if you have access, you get to cut a deal.  If not, tough break – the government steamroller mashes you down.

I think it’s safe to say that all government control springs from a well-intentioned desire to make things better.  But as Friedrich Von Hayek made clear, government can only do so at the cost of forcing its will on its citizens, selecting those who benefit and those who pay, placing them all on the road to serfdom.  Indeed, Karl Marx founded Communism as an idealistic response to the poverty of the industrial age, and look where that led.

Barack Obama is persuaded that the coercive powers of government can be used for benevolent purposes.  At its deepest level, that is a contradiction in terms.

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