Repeating “That Is a Fact” Does Not Make It So

Near the end of Thursday night’s vice-presidential debate, Vice President Joe Biden said the following:

With regard to the assault on the Catholic Church, let me make it absolutely clear. No religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy — any hospital — none has to either refer contraception. None has to pay for contraception. None has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact.

VP Biden may well believe this, but it is not true. In February HHS finalized the regulations mandating the inclusion of contraception in employer-provided health plans and exempting houses of worship, but not religious universities, hospitals and charities. At the time the Administration announced its intent to accommodate other religious employers, but no such accommodation has been forthcoming. This is because creating such an accommodation is difficult. Some religious institutions self-insure, so shifting the obligation to insurers would not do the trick (and it’s not clear HHS has the authority to impose such a requirement anyway). In March, HHS issued an Advance Notice of Proposed Rulemaking and postpone enforcement of the existing rules against religious employers, but did not detail any regulatory change that would effectively relieve objecting religious institutions from paying for contraception. This is one reason why there are over two-dozen lawsuits against the contraception mandate pending in federal court.

UPDATE: The U.S. Conference of Catholic Bishops also disputed Biden’s statement. As noted in the comments, the best defense of Biden’s statement is that religious institutions are not today obligated to pay for contraception, but that’s only because the regulation is not yet being enforced. Biden articulated the stated Administration policy, but that policy is not the law — and that policy has not even been embodied in a proposed regulation, let alone a final rule. Contrary to Biden’s claim, the regulation on the books — promulgated by his administration — does apply the contraception mandate to “Catholic social services, Georgetown hospital, Mercy hospital,” and other objecting religious institutions.

I should also add, as I’ve noted before, that I think the First Amendment objections to the contraception mandate are far less serious than those based on the Religious Freedom Restoration Act (RFRA). If the mandate falls in court, it will be due to RFRA.

FWIW, back in March I noted one way to increase access to contraception without imposing a mandate on religious employers would be to make more forms of contraception available without a prescription. Some religious groups might not like this, but such a change would eliminate any potential burden on religious practice.

MORE: Georgetown’s Berkeley Center for Religion, Peace and World Affairs has a useful site with links to relevant documents and essays.