Is Latest Olive Branch on Contraception Coverage a Win for Catholic Progressives?

On February 1, 2013, the Obama administration offered a new olive branch to the Catholic Church in the controversy over the contraception coverage mandated for all health insurance policies by the Affordable Care Act.

In an analysis posted the same day, Washington Post Opinion Writer E.J. Dionne Jr. argued that "The decision ought to be taken by the nation's Catholic bishops as a victory, because it is."

But what Dionne's full analysis shows is that the government's latest proposal may well be a more important victory for "Catholic progressives" -- because what persuaded Obama and HHS Secretary Kathleen Sebelius was not the bishops' disproportionate, hysterical ranting about an attack on their religious liberty, but rather the Catholic progressives' concern that Sebelius had defined the term "religious organization" too narrowly and failed to accommodate religious institutions that self-insure.

As Dionne recounts it, the original rules that Sebelius offered said that "If a religious organization did not have 'the inculcation of religious values' as its purpose and did not primarily employ or serve those who shared the faith, it got no exclusion at all."  By contrast, says Dionne, "The HHS rules announced Friday scrapped this offensive definition in favor of long-established language in the IRS code."  By substituting the existing language of the Internal Revenue Code, Sebelius in effect broadened the term "religious organization" to include all Catholic entities doing charitable work and probably even those promoting social justice.

Dionne notes that Sebelius has also addressed the concern that many Catholic institutions self-insure and did not want to pay for "any contraception coverage to which they object on religious grounds."  The remedy for that concern is that employees of such institutions who want contraception coverage will be able to get "stand-alone coverage from a third party" without anything being paid by the institution -- "covered by small offsets in the fees insurers will have to pay to participate in the new exchanges where their policies will be on sale."

I did not share the Catholic progressives' view that the original definition was offensive.  But I did agree that it was unlikely to fly politically.  Coming to the same conclusion, Sebelius gave Obama and Catholics a way out of the controversy.

So will the new proposal prove to be a victory for Catholic progressives?  I say maybe, because the Catholic progressives don't get the final say on this.  A few future developments may prove critical:

First of all, how will the U.S. bishops react?  If they deem the latest from Sebelius to be acceptable, the controversy will end based on terms pushed primarily by Catholic progressives.  So yes, a gain for them.

Second, however, if they do find the latest proposal agreeable, what rationale will the bishops give for their shift?  Dionne argues that "The church made a mistake in arguing its case on the grounds of 'religious liberty.'  By inflating their legitimate desire for accommodation into a liberty claim, the bishops implied that the freedom not to pay for birth control rose to the same level as, say, the freedom to worship or to preach the faith.  This led to wild rhetorical excesses..."  If the bishops try to twist the olive branch into a victory for their 'religious liberty' position, they will be distorting what the Catholic progressives worked for and achieved.

And third, whatever response and rationale the bishops give, how does this play out among ordinary Catholics?  Although it was bogus, theologically and constitutionally, some bishops got some Catholics to buy their 'religious liberty' line:  even Catholics who have never accepted the church's official teaching on contraception somehow felt that their church was being attacked and its religious freedom was being violated.  The best outcome would be that most ordinary Catholics end up understanding that that was never the case--and that Obama has corrected the only inadequacies of the original rules:  the overly narrow definition of "religious organization," and how to keep religious institutions that self-insure from paying for contraception to which they object on religious grounds.

So, as they say, time will tell.  If Catholic progressives do indeed have a victory, they will still need to remember that final victories are very, very rare -- in politics, constitutional law or theology.