Today’s Globe published an editorial tut-tutting about how Ted Kennedy was a public figure, and how his legacy was sometimes difficult to interpret, and how his family doesn’t retain the exclusive right, now that he’s gone, to decide what he would have supported and what he wouldn’t have. They go on to say that, yeah, Ted Kennedy probably would have lined up with President Obama rather than Scott Brown, but Brown “is allowed to interpret” what Kennedy said and did.
Well, yes and no. Yes, figuring out what Kennedy would have thought about an issue he never precisely faced necessarily involves some guesswork. But no, Brown should not be “allowed” to simply make stuff up, or to ignore the evidence we have about what Kennedy’s positions were.
And we do have some good evidence. Most critically, yesterday the Globe published a story showing that Ted Kennedy openly and repeatedly supported a mandate that contraception be covered on the same terms as other prescription drugs and outpatient services. That bill contained no exceptions, even for churches. The Catholic Bishops opposed the legislation, but that didn’t stop Kennedy from repeatedly co-sponsoring it anyway. As Kennedy said in a hearing on the relevant legislation in 2001, when he chaired the Senate’s Health, Education, Labor and Pensions Committee,
contraceptive insurance coverage is essential for women’s health. We should have passed the legislation long ago to deal with this pressing issue. The pending bill is a responsible solution to a problem facing millions of American women…. Family planning improves women’s health and reduces the number of unintended pregnancies and abortions…. Women have the right to decide when to begin their families and how to space their children…. This bill is urgently needed to increase the number and variety of contraceptive methods available to all women…. Federal legislation is clearly needed to see that all women throughout the Nation have fair access to the family planning services they need.
In other words, Kennedy was clearly and unequivocally in favor of greatly expanding access to contraception – because, among other things, doing so would reduce the number of abortions in the U.S. So, is that the end of the story? Not quite – and what comes next is quite interesting. The rest of this post is on the wonky side, but sometimes it’s necessary to delve into the weeds to find out what was really going on.
In considering conscience clauses, which come in many different shapes and sizes, it’s necessary to keep two distinct features of such clauses in mind.
- Providers vs. Plans. Some conscience clauses apply to “providers” – i.e., doctors, nurses, and sometimes hospitals. Others apply to “plans,” i.e., employers and insurers who pay for medical services under an insurance plan. “Provider” clauses are less restrictive than “plan” clauses, because if Dr. A objects to performing a particular service, it’s not that burdensome to go to Dr. B, who doesn’t. It’s somewhat more burdensome to have to travel to a different hospital, but in most cases it is still possible. “Plan” clauses, on the other hand, are much more restrictive, because they mean that, regardless of where the patient goes for treatment, her insurance plan won’t cover it, so she must bear the full price of the service.
- “Religious Belief” vs. “Moral Conviction.” We’ve heard a great deal about these two terms lately, but this bears emphasis because some people inexplicably see them as indistinguishable. “Religious belief” seems self-explanatory, but the key point here is that it is limited to beliefs associated with organized religion. Of course, it is potentially subject to abuse (e.g., “The Church of the Flying Spaghetti Monster rejects cancer treatment as incompatible with its tenets”), but courts are capable of sorting that out, should it come to that. “Moral conviction,” on the other hand, goes well beyond the tenets of organized religion and reaches the particular beliefs of a single individual, regardless of the source of those beliefs. If an individual employer or plan administrator genuinely believes that AIDS is a disease that is contracted through “immoral” behavior and he therefore objects to paying for its treatment, well, a “moral conviction” exemption would seem to allow him to refuse payment.
Now, let’s return to the contraception legislation discussed above that Senator Kennedy repeatedly supported. As already noted, that legislation in its original form contained no conscience exemption of any kind, yet Kennedy spoke forcefully in favor of it and expressed hope that it would become law. That certainly suggests that Kennedy was entirely open to a federal contraception mandate with no conscience exemption.
That interpretation is strengthened by the fact that, in that same 2001 hearing quoted above, several witnesses submitted testimony in opposition to the legislation that specifically pointed out the lack of any conscience clause. So it’s impossible to make the case that Kennedy was unaware that the bill, as written, would include churches and other religious employers within its mandate.
And yet, that’s not the end of the story. Here is some of the testimony of Senator Snowe (R-ME), the bill’s lead sponsor, at that hearing:
I might add, Madam Chair, there have been some questions about whether or not we should have a conscience clause, and we were able to draft an appropriate conscience clause in the legislation for Federal employees, and I know that we can do the same in this legislation, as well, to address any concerns for those with respect to being able to opt out because of religious beliefs.
Senator Snowe made a similar point in her prepared statement:
Now, I know some will raise the issue of a “conscience clause,” and I agree that this is a legitimate concern–one we have worked out before, and I believe can work out again. When the Senate agreed to ensure contraceptive coverage for federal employees, we addressed the concerns of our colleagues who felt that there needed to be a “conscience clause” by amending EPICC to allow religious plans to opt out of this coverage if their beliefs and tenets are not consistent with this coverage. As we look to expand EPICC beyond the FEHB plans, we are willing to work again with those who support the inclusion of a conscience clause in EPICC. The basic fairness of EPICC is simply too important to do otherwise.
Therefore, it seems to me that it’s possible to argue that, even though Kennedy did not say anything about a conscience clause, he anticipated that such a clause would eventually be incorporated into the legislation. That interpretation is not a slam-dunk – certainly, Kennedy’s strong words in favor of the bill as originally filed suggest that he would have happily voted for it without a conscience clause. But it’s at least plausible that he saw such a clause coming.
That leads one to wonder what the nature of such a clause would be. Fortunately, we have a good answer to that question. Some background: in 1999, Congress required for the first time that the Federal Employee Health Benefits Program (“FEHBP,” the health insurance plan to which all federal employees have access) cover contraceptives on the same terms as other prescription drugs. As Senator Snowe referenced in her testimony quoted above, that mandate includes a conscience clause that reads as follows (emphasis mine):
SEC. 635. (a) None of the funds appropriated by this Act may be used to enter into or renew a contract which includes a provision providing prescription drug coverage, except where the contract also includes a provision for contraceptive coverage.
(b) Nothing in this section shall apply to a contract with–
(1) any of the following religious plans:
(A) Providence Health Plan;
(B) Personal Care’s HMO;
(C) Care Choices;
(D) OSF Health Plans, Inc.;
(E) Yellowstone Community Health Plan; and
(2) any existing or future plan, if the plan objects to such coverage on the basis of religious beliefs.
(c) In implementing this section, any plan that enters into or renews a contract under this section may not subject any individual to discrimination on the basis that the individual refuses to prescribe contraceptives because such activities would be contrary to the individual’s religious beliefs or moral convictions.
(d) Nothing in this section shall be construed to require coverage of abortion or abortion-related services.
According to this source, that clause has appeared in the annual appropriations bill that funds the FEHBP ever since – President Bush apparently tried to get it removed in his first budget proposal, but he failed and thereafter left it alone. As an example, here’s a law from 2004 (section 634) that contains identical language (except that the list of specifically-named plans has changed).
So, let’s unpack that conscience clause. Notice that it contains both a “plan” clause (section (b)) and a “provider” clause (section (c)). Notice, also, that the “plan” clause is limited to “religious belief,” while the “provider” clause extends also to “moral convictions.” It seems extremely unlikely that those differences in language are accidental. Rather, it seems that Congress has concluded that the “plan” clause, because of its greater burden on the policyholder, should be limited to religious beliefs, while the “provider” clause, because of its lesser burden on the policyholder and greater impact on individual doctors, should be more expansive. Thus, “plans” participating in the FEHBP may refuse to cover contraceptives only on the basis of “religious beliefs,” but individual doctors may refuse to prescribe contraceptives if doing so runs contrary to either their “religious beliefs” or their “moral convictions.”
What have we learned? Several important things.
First: There is a difference between “religious beliefs” and “moral convictions.” Senator Brown, take note – words have meaning, and you are not free to take the Humpty-Dumpty approach of substituting your own interpretation when the plain meaning of the words differs from it.
Second: Senator Kennedy was a strong advocate for expanding access to contraceptives and for requiring health insurance to cover them, and there is absolutely no evidence that he favored allowing employers or plans to refuse to do so simply on the basis of “moral convictions.”
Third: There is some evidence that Kennedy was willing to accept a conscience exemption for plans and employers if that exemption was limited to “religious belief,” since that is the clause that has been law with respect to the FEBHP since 1999. I haven’t found any indication as to whether Kennedy actually wanted that exemption, or if, instead, he was willing to go along with it as a means of getting the mandate passed. But as far as I can tell, he did not strenuously object to it.
Fourth: There is a good deal of evidence that Kennedy favored a conscience exemption for doctors and other providers on the basis of religious belief, and there is some evidence that he favored one for moral conviction as well. We see clear evidence of Kennedy’s support for a “religious belief” exemption for providers in his 2009 letter to the Pope, and we see evidence of his support for expanding the “provider” exemption to “moral conviction” in legislation that Kennedy filed in related contexts. In addition, the FEHBP conscience clause that has been law since 1999 includes a “provider” clause that extends to “moral conviction” – again, it’s impossible to know whether Kennedy actively supported that language or accepted it as the price for getting the contraceptive mandate passed, but in either case, he apparently didn’t strongly oppose it.
To me, this all renders it fairly clear that Ted Kennedy would have opposed the Blunt/Brown Amendment. That amendment goes too far, because it is a “plan” clause that nonetheless includes “moral conviction” as well as “religious belief.” There’s no evidence that Kennedy has ever supported such a clause, and there is lots of evidence that he strongly supported expanding insurance coverage of contraceptives for as many women as possible. Furthermore, the Blunt/Brown Amendment goes well beyond contraception and abortion, potentially extending to all health services. There’s no evidence that Senator Kennedy would have accepted a “plan” clause that could have had such sweeping impact, and Kennedy’s lifelong pursuit of universal health care coverage strongly suggests that he would not have.
Is this interpretation the absolutely last word? No – the Globe editorial is correct that, to some extent, divining how someone who’s no longer around would have voted on a new piece of legislation involves some guesswork. But, if I do say so myself, this is the most comprehensive analysis yet of what we know about Kennedy’s position on this topic.