A (Long) Musing On The New Contraception Rule
There’s been a long and somewhat intense discussion going on in the comments over at Kyle’s sub-blog about the Obama administration’s rule requiring Catholic institutions to provide coverage for contraception in their health care plans. There are a number of interesting threads I’d like to pull out here and state explicitly in a post that’s longer than a comment. It’s really long, so I’m just putting the whole thing behind the fold.
Health Care Provision
Up front, let me state my opposition to employer-provided health care plans. In my opinion this should be a function of the state. If you’re more of a standard libertarian, maybe you believe it should be a function of some market in general. Very few people who really think about this issue believe it makes much of any sense for employers to be in charge of this process. But that’s something we’ve chosen through some kind of quasi-democratic process, and the ACA is designed to keep that less-than-ideal structure in place while universalizing access to health care. It’s an ugly compromise, and it’s a debate for another day. (For the rest of this, we assume the ACA mandate is constitutional. Again, debate that another day.)
The reality, however, is that that same quasi-democratic process has given us a basic idea of what it means to provide health care. It’s something we have (largely) defined in policy, and we have all kinds of rules about which things have to be covered, which things don’t, and so on. There is a certain set of people who reject even this much government, but this post isn’t really addressed to them. My point is that, for most people, what constitutes health care is a relatively defined set of activities. And that set includes contraception. This rule was necessary only because the law of the land – ACA – enshrined in policy the notion that contraception is part of a basic health care package. 28 states already had such policies in place before ACA, as well.
Core and Non-Core Religious Activities
One of the things that I think really clarifies my position on this debate is a distinction between activities that are a part of a particular set of religious practices and activities that are undertaken by members of that religious group. A law that prohibited eating crackers on Sunday would be prima facie unconstitutional for a few reasons, but one of those reasons is that it interferes with the free exercise of a lot of religions. I made a joke in the thread at Kyle’s blog about how the Obama position doesn’t interfere with the Eucharist, and James pushed back because that’s not the entirety of Catholicism. I take James’ point, but I meant that as an illustration of something that is core to what it means to practice or “exercise” Catholicism.
On the other hand, provision of hospitals and schools is not something I consider part of what it means to be Catholic. Can you be a Catholic (a practicing, devout Catholic, that is; ignore the vast swathes of people who call themselves Catholic for other reason) without taking the Eucharist, being baptized, etc.? The answer appears to be no. Can you be a Catholic without running (or working in) a hospital? I should think you can. It follows, then, that the “free exercise” of a religion is something different (perhaps subtly) from the activities undertaken by members of that religion – even if those activities are sponsored from the very top of the church hierarchy.
A side note: The services provided by Catholic hospitals and religious schools in general are invaluable. As James pointed out in the other thread, churches have been in the education business a lot longer than the state. I hope they stay in. My own soon-to-be-blushing (one hopes) bride went to a Quaker school, where she received a first-rate education. It would be a loss to the nation if such institutions were to cease to exist. (This is my attempt to demonstrate that my position is not [solely, anyway] grounded in animosity.)
Regulating Non-Core Religious Activities
Okay, let’s pull it all together. What does Obama administration’s (hereafter we’ll just go with Obama) position do, and how does it fare against the Free Exercise Clause?
It’s important to note that it appears Obama and I more or less agree on the distinction I’ve made above (in case you were keeping score, this actually may be a first for us). The mandate does exempt churches from having to pay for contraception. What it includes are institutions (like hospitals) funded by religious organizations that are not part of the core religious function of those organizations.
This strikes me as exactly the right compromise. Mandating that employers must provide health care coverage (which, again, we’ve already agreed is stupid, but that’s what we have) and then extending that mandate to require payment for contraception would effectively prohibit the Catholic Church from existing in America without violating its own ethics. (The employment of priests and other officials of the Church is something I am putting in the “core” category; I think this is uncontroversial.) That sure looks like an obvious violation of Free Exercise.
Another aside: Note that, if you’re nodding along with this last bit, you have just agreed that a law can be discriminatory or violate someone’s rights without being explicitly intended to do so. This has a lot of applications, arises naturally in any discussion of the Constitution, and is not an invention of liberal activist judges.
Back to my point: the Church does not have to provide hospitals. It is not part of what it means to be Catholic. These hospitals don’t even require employees to be Catholics, nor do they restrict treatment to Catholics. They are a secular enterprise dedicated to a secular goal – health care provision. And health care provision is a thing that we have defined in policy, which does now include contraception. Would we allow a religious exemption for a Christian Scientist hospital that refused to pay for their employees’ health care at all? We would not (again, assuming ACA has to be the framework we’re working from).
A Practical Rejoinder
Even if all of this is true, it doesn’t make the case that we couldn’t grant an exemption if we really wanted to. That depends on how important we consider the issue. The wide availability of contraception is something a majority supports. Requiring health care plans to cover it is also widely supported. Even Catholics support it. Take a look at Kevin Drum’s statistics rundown for some evidence of these claims. The reality is that the weight of public opinion appears to be on Obama’s side here. I can’t fault him for going with it, and not only because I think it’s the morally correct thing to do (access to contraception being one of the cornerstones of the modern improvements in women’s health).
Going Further
Now, just a little bit of a thought experiment. How far does the Free Exercise Clause get us here anyway? Assuming again that the ACA is the law of the land, what if a Christian Scientist church (or whatever they have; I honestly don’t know) refused to provide health care plans that covered any modern medical techniques? Could we reasonably grant an exception to that? It seems to me like the answer is no. In which case, what has Free Exercise bought us?
Kyle suggests a framework predicated on “grave harm” or “substantial harm”. We probably all, or mostly, agree that that gets us to a place in the middle. It would require Christian Scientists to provide actual health care coverage but potentially leave some room for Catholics to refuse to provide contraception. But who defines “harm” in this case? Is it the democratic process? Because, as we see above, people basically agree that everyone should have access to contraception. How long before the Catholic Church’s position becomes as outrageous as the Christian Scientists’?
Mostly that’s food for thought, but it’s also a defense of my initial claim that this entire employer-provided health care coverage regime is patently ridiculous.
I got into an argument a few years back about viagra and whether or not it should be covered by medicare/medicaid.
My attitude was that it was a, I believe I used the term, “lifestyle drug” and, as such, should not be subsidized by taxpayer dollars. “Let the guy spend his own 8 bucks on a pill”, I said.
The counterargument came that having sex was a right and that by denying this subsidy, I was preventing people from exercising their rights.Report
I wouldn’t say some things are “rights”, per se, but I would say that they are important in the way some things can be even if they aren’t “rights”. All things considered, I think Viagra is (more or less) a drug meant to treat medical conditions that prevent one from doing something that (to many) is an important constitutive part of a fully realized life. I realize this is a lot of wishy-washy talk, but I would err on the side of “let’s just pay for it”.
Similarly, I don’t think anyone has a right to contraception, but I think people have the right to (or the proper expectation of, if you prefer) a basic level of health care, which we have decided, through the democratic process we have, includes contraception. What’s more, I think that was the right decision – partly for the reasons I stated above w.r.t. Viagra, partly because I think (and people underestimate this) that it is a cornerstone of women’s health and it deserves to be part of a basic notion of what constitutes proper health care.Report
I would err on the side of “let’s just pay for it”.
I tend to agree on a personal level but there is a difference between “let’s just pay for it” and “let’s force those other people to pay for it despite their misgivings”.
I imagine that we’ll see more of these distinctions as Islam becomes more of a prominent force in the US…Report
Well, see there’s a fun rub.
Paying for birth control pills is MUCH cheaper than paying for a pregnancy, for instance.
Looking at a purely “what is cheapest, long term” — the pill is a ridiculously cheap little drug that prevents (or at least minimizes) all sorts of very costly things over a woman’s life.
So I guess this is a case of telling them they have to offer the pound-wise as well as the penny-foolish choices. 🙂Report
Two things:
1.) It turns out, the majority of women who use birth control pills (and their equivalents) are doing so primarily for non-birth control reasons.
2.) Even the actual birth control reasons can easily be viewed as health reasons rather than lifestyle reasons, in a way that I don’t think viagra can (and I think viagra can be seen as haing legitimate medical justifications that aren’t just lifestyle reasons).Report
Re #1, isn’t there already a mechanism for conditionally approving prescriptions based on qualifying diagnoses? Not that it couldn’t be abused, of course.
Re #2, can they be viewed as health care in a way that, say, bike helmets can’t be?Report
kenB, on #1, I’m not sure. Does anyone else here know?
on #2, sure. It’s also a sort of preventative medicine. The health risks associated with pregnancy are myriad.Report
I meant to add to #2: mental health is, in fact, health. It’s not just “lifestyle.”Report
It seems to me that if we find ourselves in a grey area, we should avoid coercion.Report
Medically, I don’t think it is a gray area. At least, physicians don’t seem to see it is a gray area. It’s only a gray area because certain groups disagree with their use on moral grounds.Report
Are the reasons you think they ought to be provided grounded in “morality”?
(At least it’s a non-religious morality?)Report
I think technically he’s grounding his position in expert consensus (at least as he’s phrased it here). At some point morality will come into the picture though, unless you really believe it’s turtles all the way down.Report
Well, if the experts say that this isn’t a moral issue…Report
Actually, yes, but that’s not particularly relevant to what I said. What I said was that there is a medical claim: that certain types of birth control are preventative medicine, and a moral claim, that they are lifestyle medicine. The only reason, then, that there is a gray area is that a group has made a non-medical claim which has, for some reason, turned the medical claim itself into a “gray” one.
The policy decision and the medical decision are separate, and the policy decision is going to be based on moral considerations no matter which direction it goes. This is true of most policy decisions.Report
Chris,
Cite on 1)?Report
ROFL.
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I love that we all have our arch-nemeses.Report
So the question is, is that a reasonable price to pay, in your opinion? If the Catholic church decides to get out of the hospital business in the USA (or at least reduce its footprint) because of this mandate and the prospect of future similar regulations, is our society better off? I’m not saying that it is or isn’t, but I think the point should be addressed.Report
I don’t know. I’m skeptical that this will stop the Church from providing these services, so to some extent I’m having my cake and eating it too. I’m also not saying I would have made the same decision Obama did if I were in his shoes, even if I think it was the right thing to do.Report
Fair enough. I also wouldn’t expect a massive sell-off, but I can easily imagine this factoring into their decisions about future development and maintenance.Report
Ultimately, I am not bothered by this whole affair for this reason. There is a degree of give-and-take here. I think Kevin Drum and others who seem to resent the church’s role in health care (having hospitals and such) are waaaaay off-base. But that doesn’t mean, in my view, that the church should get every exemption in the book.
I mean, forcing contraceptive on health care plans really doesn’t seem likely to push them away. I don’t even think it will minimize growth, as KenB fears. Forcing hospitals to participate in abortions, on the other hand, would have much more of a deleterious effect. Right now we’re forcing them to in emergency situations, which is a tough answer to a tough problem and part of the give-and-take.
I’m not particularly worried about hospitals (or obstetricians more generally) being forced to do abortions, though a lot of the arguments in favor of this do apply to that, and that is some cause for concern.Report
A point of interest. From what I understand, one of the reasons it was such a blow that what’s-his-name, the abortion doctor, who was killed in Kansas or Nebraska or wherever is that he was one of the few doctors *IN THE COUNTRY* willing to do what he did.
It’s not like, to be crude, killing a drug dealer on the corner where killing him (or her, I suppose) just creates a job opening. The guy did what very, very few other doctors in the country did.Report
This is my understanding as well.
Though I don’t believe it remotely possible in the current political environment, I am worried that at some point the pro-choice community will say:
“Hey, Will Truman’s wife is trained to perform abortions. But she doesn’t. There aren’t nearly enough doctors performing abortions. And Dr. Truman works at a hospital that accepts federal funds!“Report
It should be noted that one of the main reasons very few other doctors in the country did it is because they’re scared shitless to do it. I wonder if Tom sees that as aggressive?Report
There are a lot of reasons that go well beyond the threat of violence (which I am not arguing to be a non-factor).Report
http://journals.lww.com/greenjournal/Abstract/2011/09000/Abortion_Provision_Among_Practicing.16.aspx“>Link.Report
I’m surprised that 3% haven’t actually had to make abortion referrals.
I would have guessed the number of doctors actually performing them would be lower.Report
I’m surprised that 3% haven’t actually had to make abortion referrals.
Does Utah have 3% of the country’s OB-GYNs?Report
99Report
Will, I didn’t mean to imply otherwise. I was simply referring to the fact that the other clinics that performed the late term procedures have closed, steadily, or stopped doing the procedures, largely for safety reasons.Report
This came up after one state (Mass., I believe) told the christian adoption agencies that they couldn’ discriminate against gays and lesbians. A few threatened to quit, but I don’t think any did.Report
A few threatened to quit, but I don’t think any did.
I’m pretty sure they did. Google “Catholic Charities of Boston adoption.” Britain, too.Report
That one’s a weird situation in a variety of ways. In that case, the catholic adoption charities were already placing kids with gay couples. After Massachusetts legalized gay marriage, the diocese decided to rage-quit. Over the objections of the lay staff, and the charity board, IIRC.Report
First off, I agree with just about everything here, though I haven’t fully thought it out and considered all the possible implications of such an approach, so I reserve the right to “flip-flop” as they like to say.
Second, I find this statement interesting: “(This is my attempt to demonstrate that my position is not [solely, anyway] grounded in animosity.)” Is RB self-victimizing himself? Or is it common practice for those who oppose this or similar measures to consider those in favor of them because of animosity toward the faith in question or faith in general?
Lastly, assuming Ryan’s breakdown here is unacceptable to some, what of this compromise: Religious institutions can apply for exemptions to the law. Whatever aspects of the ACA they refuse to adhere to on valid religious grounds are then offered, free of charge to the employee, by the state. This is funded by eliminating the church-in-question’s tax-exempt status.Report
The notion of what is a “core” religious activity [or belief] is key here, but cannot hold. First, that an outsider can make definitive judgments on the internal workings of a religion. For instance, an early issue in American religious pluralism was What is Christianity?, that some doctrinal beliefs like the Trinity defined Christianity. However, the Founders quickly realized that the government has no standing to make such distinctions. [Separation of Church and state is far more than an opposition to theocracy.]
I must demur from many of the assumed premises in the OP here, such as “[Catholic hospitals] are a secular enterprise dedicated to a secular goal – health care provision.”
The Bible says that faith without good works is in vain, and the Roman Church is in the hospital business rather than the widget business for an explicitly non-secular purpose, that of Christian charity. Our government has no standing to decree that it is not.
This issue has been festering for awhile now, and the Obama Administration has just—quite aggressively—popped the pimple. What “free exercise” as guaranteed by the First Amendment is more than just freedom of worship; religion and the question of God being more than just the kind you wind up on Sundays.
[As for slippery slopes, far more likely than Mr. Bonneville’s caution of the excesses of Christian Science is that his assertion “access to contraception being one of the cornerstones of the modern improvements in women’s health” can be easily applied to providing abortions as well.]Report
I think this all a good response. It’s something I find ultimately somewhat uncompelling because I think it rather overdetermines – that is, you say something is your religious prerogative, therefore government can never interfere. At some point, we have to start delineating things if we’re going to have any kind of functioning legal environment. If the Bible said faith without a standing Catholic army were in vain, we’d just have to compromise someone’s values to make that work.
Your last point is a good one. I’m not much of a hard-liner on the pro-choice side (and my personal preferences are strongly opposed to abortion), but if a democratic majority decided that abortion were part of what we take to be a proper health care regime, I think I would side with the majority. We have not reached that point – and very clearly, given the debates and compromises surrounding ACA – so it’s not something we have to confront just yet.Report
I share Tom’s reservations with the government deciding what is and isn’t core to religion. It is one of the seemingly impossible to rectify areas where government and religion brush up against each other. The government can restrict a Rastafarian’s use of marijuana, which I assume is not only predicated on a (fallacious) insistence on maintaining certain paramters for safety and health, but also because of how “serious” a religion the government considers Rastafarianism. If it was Christianity instead of Rastafarianism, my guess is that the case would be much less cut and dry. We also have the government deciding what is and isn’t religion at times; it seems to me that the government even considering the question is a violation of the 1st Amendment.
I don’t know the solution here. The government and religion are so intertwined, and I’d argue that most of the major faiths, Christianity in particular, benefit from their relationship. As such, part of me wants to say that when you dance with the devil (i.e., Government), you dare to get burned. As I offered above, would the Church be willing to forgo its tax-exempt status if that meant it was exempt from any ACA (or other governmental) provisions that violated its faith? It reminds me of the case recently with the gazebo or whatever it was, where a church wanted to get all of the benefits of working with the government but not work within any of the parameters that are typically expected of groups working with the government in the public sphere.Report
I share Tom’s reservations with the government deciding what is and isn’t core to religion.
Ditto this. I’m still not sure where I actually come down on this issue, but I am sure that those who don’t have any reservations about letting the government determine what is and is not a core religious function embody the reason I have such a distinct libertarian tilt.
It’s not that we can’t sometimes make that determination, because in a polity we sometimes have no choice. But if we don’t struggle to some extent with it and have some actual reservations, we’re just too authoritarian-minded for my comfort.Report
Agreed that, eventually, a line needs to be drawn. But we ought to be oh-so-careful as to where to draw it and oh-so-careful as to when to draw it.
A problem that manifests in parallel to this (though not necessarily germane to this conversation here) is that many of the people making the biggest stink about stopping the government from making rules about Christianity are the same people making the biggest stink about using the government to make rules about other religions. Which is a brand of cake-eating that makes me want to call their whole position disingenuous.Report
The issue has been festering for awhile now, and the Obama Administration has just—quite aggressively—popped the pimple.
It’s not aggressive just because you say it is, or even because you perceive that it is. The policy applies to all insurance plans, was not intended specifically for Catholic employers, and doesn’t seem the least bit aggressive to me.Report
Put differently, it’s hard to see a decision that certain types of contraception are preventative medicine, which the 2010 law passed by both houses requires be covered by insurance plans, is an aggressive move. It’s not directed at any group in particular, and it’s in line with the recommendations of health care providers. What’s more, it does include exemptions for the chruches themselves. So calling it aggressive looks to me like a dishonest rhetorical ploy.Report
Chris,
Want to join my “99” plan?Report
James, that’s a great idea, actually. I think I’ll start now.Report
Keep stretching. I guess the flower shop in the hospital is a core mission.Report
If the people speaking for Catholics don’t complain about being forced to contribute, via taxation, to a legal system that features the death penalty, and if Catholics don’t complain about being forced to contribute, via taxation, to a political system that makes war, I simply cannot find enough time in my day to care about their objections to this alleged imposition.
I think what we’re seeing, once again, from social conservatives is the desire to have sway over a woman’s healthcare decision-making in a way that is simply unimaginable if the regulation was being applied to men.Report
I found a Catholic who was complaining about war. It’s a woman, though, so I don’t know if that means that she’s a hypocrite or what.
Is she allowed to hold the position? I’ll try to see if I can get her to post. If she won’t post, can I argue on her behalf? (She says she’s not very good at typing or writing at the level she sees here in the comments.)Report
I think Sam’s point is that this fight against this regulation has been organized by the Church at the highest levels. No such fight was organized by the Bishop’s against the Iraq War, torture, or anything else Catholic’s are supposedly against. But, make them pay for the same insurance package that Wal-Mart does? Well, then it’s the Reformation all over again and Catholicism is under attack.Report
There are plenty of Catholics against war. But the Catholic Bishops who are currently doing the wailing and the gnashing of teeth never say boo about it. Just as they never say boo about being forced to pay for the death penalty. But when it comes to keeping women in their place, the Catholic Bishops – the same people who aided and abetted child molesters for decades – suddenly claim to occupy the moral and political high-ground. It’s nonsense.Report
Actually, the bishops frequently speak out against war and the death penalty. The official line of the church is for the abolition of both.Report
Did all hundred or so send out a letter to be read to their parishioners on the eve of the Iraq War? Do they do so on the eve of every execution in this country? No. Because while the leadership of the Catholic Church may think those are bad things, it’s only really time to put the PR into high gear when they might have to indirectly pay for their Jewish nurse’s birth control.Report
I wonder if any of these non-church institutions serve meat on Fridays? Or allow people to work on Sunday? I bet a great many of them actually REQUIRE the latter…Report
Jesse’s point stands. They don’t speak out like this. They don’t freak out like this. And they damn sure don’t demand exemptions for themselves or their parishioners.Report
The Bishops line on the death penalty is clear, just seldom reported by the media because it’s a dog bites man story.
The Bishops stance on the Iraq War was indeed, far less clear , but it must be said that the Catholic Church’s stance on war is, well, a little more ‘nuanced‘ than that 1st century hippie’s stance was.Report
Isn’t that proof enough that there is something either wrong or hypocritical with the reaction to the contraception ruling , then?
I don’t see any threats to stop operating schools and hospitals because the federal government forces these entities to deduct and remit taxes from their employee wages that directly fund the very actions that the Church also finds immoral. I am pretty sure even religious service employees in the Church themselves still have to pay Federal and State Income Taxes that directly fund those same programs.Report
Frankly, the whole child rape thing is what really torpedoed their moral standing.Report
Funny you should mention that…
Because in the midst of all this furor…it’s telling that there’s a cardinal who wants to relitigate the whole thing….
http://www.connecticutmag.com/Connecticut-Magazine/Web-Exclusive-Content/February-2012/Egan-Ten-Years-After/
…I mean really….wonder when the US Conference of Bishops will condemn that.Report
Wow. Just, wow.Report
I would expect the approach to this issue would be different, even more intense and orchestrated, given that the perceived offense is against the church itself and its ability to act in accordance with its teachings and identity.
I get passionate about the topics I blog about, but I’d get pretty freaked out if the state prohibited me from blogging about a given topic.Report
I’m not sure I understand – are you arguing this rule is comparable to a rule preventing you from writing about particular topics?Report
No. I wasn’t comparing the rules, but rather the reactions to them by those required to act a certain way by the rules. It makes sense to me that the church would freak out more about perceive attacks on it than about the moral issues that typically concern it.Report
So the Church is imagining this rule not as one designed to make contraception more widely and easily available for women, but instead a stealth attack upon it?Report
Both, but without the stealth.Report
Perhaps the church then should remove its head from its own ass. This isn’t about teaching aging Catholic bishops a lesson; it’s about women’s health care. Good Lord.Report
That’s seldom a bad suggestion, Sam, but in this case the alleged offense isn’t teaching aging bishops a lesson, but coercing some Catholics into violating their religious beliefs.Report
What Catholics are forced to violate their beliefs? I think the assertion here has not been fleshed out sufficiently.
The belief as far as your posts have indicated is that sex for non-procreative purposes is immoral, right? But no Catholics are forced into any such sexual acts. The second-order derivative of the belief is that contraceptives should not be allowed because they encourage said sexual acts. But the decision does not require them to use or provide them either, so that’s not it. Maybe the third-order impact is that the Church would prefer to not indirectly support anyone’s contraceptive use so does not want to provide indirect payment for them. Now we’re getting closer, but they’re not being forced to do that either.
It strains credulity to say that any Catholic is forced to do anything they deem immoral here.Report
The Church authorities consider the coverage of contraceptives and sterilizations through an insurance policy to be immoral. That they are being pressured to do through the force of law.Report
Kyle-
But is the offering of contraceptive coverage in and of itself against the tenets of the faith?Report
Do the insurance policies they purchase currently pay for Viagra? Because they should be aghast at such a thing, right?Report
I find it incredibly unpersuasive that Free Exercise extends to controlling what constitutes sufficient insurance under federal health regulations to meet certain tax preferences.There is no force. There isn’t even action as far as I can see.
The providing entity is the insurer. The consumer is the employee. Whether or not contraceptives are administered is a commercial and transaction between the insured and the insurer and a medical one between the doctor and patient. The employer is not a party to the transaction.
The Church can claim it’s involved, but it’s not.Report
How can we have good faith negotiations if one group comes to the table assuming the other group is operating in bad faith? Leaving aside those who think the Church’s stance is explicitly motivated by an attempt to control woman, I think many of the argument put forth here are done so in good faith. If the Church really believes it is targetted deliberately by a universal rule, how seriously should we take their objections?Report
For what it’s worth, I do find it laugh-out-loud funny that single-payer would avoid this.Report
One aims to please.Report
The Catholic Church would still raise concerns, but the material cooperation would be remote enough that there wouldn’t be a violation of conscience issue, at least not to the same extend.Report
Right. It would be to the same extent that the Church already opposes the single-payer systems we have for war and the death penalty.Report
It opposes war and the death penalty, but not the taxation itself that pays for them. It’s not telling the faithful not to pay their taxes. Quite the opposite.Report
That was my point. I’m not disagreeing with you.Report
But, if I recall correctly, a Boston Archbishop attempted to get involved in the 2004 presidential election, and other leaders in smaller communities in other elections the idea reemerges from time to time, by floating the idea that pro-choice Catholic politicians don’t deserve communion. The intent was to discredit Catholic politicians the hierarchy did not like and influence Catholic voters. I never heard any Catholic leader go that far on issues related to torture, the death penalty, or war. Not saying the faithful should withhold taxes, but certainly an involvement in partisan elections that is supposed to be out of bounds for non-profits.Report
I don’t see a problem per se with authorities in whatever religion issuing principles by which the faithful should vote, but I do get nervous when they take the extra steps of proposing an authoritative interpretation of the political scene and insisting that the principles be applied in accordance with their interpretation.Report
Or that politicians violate their oaths of office to adhere to personal religious beliefs.Report
Except it is a direct violation of their 501(c)3 non-profit, tax exempt status.
Not that anyone will ever hold them accountable.Report
Isn’t the fact that they hire and pay people for work (which could then be used for these ends) essentially the same level of material cooperation? Given that health insurance is for the moment considered a part of compensation packages for employees as a benefit, I’m not seeing how there’s any actual material difference between paying for an employee’s health insurance and paying an employee here.Report
It’s once removed. There’s a difference between my paying for something I deem immoral and my giving you money for a job you’ve done for me and you using that money to buy what I deem immoral.Report
This seems a bit of a contortion. Given that health insurance doesn’t DIRECTLY pay for the contraception but is simply a different means of compensating, the distinction is less neat than you present it.
I guess my point is that the health insurance is essentially a voucher for care. It’s no more, no less currency than just money, except in so far as it’s used for a small subset of things, of which one out of a huge field is contraception.Report
Whew, thanks for making the point I would make, Nob. I am kind of baffled at the way this point is kind of hand-waved away. I would submit the actual structure of the transactions should be at the crux of the matter – and yet it seems to go mostly undiscussed outside of Jesse’s (valid, IMHO) comparison to taxation and other uses the Church finds to be immoral.Report
There’s a side question I never hear asked in this debate, that I would be curious to see asked (and answered):
Since Health Plans that do not cover contraception are significantly more expensive to fund, would either side be OK if Catholic/other religious employers were able to opt out of contraception, but in doing so agreed to pay higher premiums so as not to be subsidized by the other plans for that choice? Report
Ooooo…
I touched on this idea in a different way, but I had assumed that the plans with contraception were MORE expensive. Ultimately, too often religion wants protections and privileged status from the government but never any of the accountability or responsibility that we would expect to come with that protection and privilege.Report
My, ahem, operation cost $20.
One $10 co-pay for the initial consultation (which also covered an *AMAZING* little pill that they gave me to take a half hour before the operation) and on $10 co-pay for the, ahem, operation itself.
I imagine that the insurance company saw it as “and how much will we be saving when it comes to pre-natal care?”Report
Baby Girl cost well over $10,000 to bring into this world, and that was just delivery, a cost my (employer-subsidized) health insurance paid in full, not to mention all the care prior to and post-arrival.
That’s a LOT of little pills.Report
I think I’m still a no. A lot of my position here is based on how I see contraception fitting into a broad understand of women’s health issues. As Chris has noted, it’s about a lot more than simply pregnancy, although I refuse to discount the value of giving women more control over their reproduction. On that I may just have to be at odds with Catholics, which is why my disclaimer says my position isn’t *solely* about animosity.
What’s more, I think there is a general cultural consensus that supports my position, which policy reflects.Report
New Poster here.
A comment on this: “Very few people who really think about this issue believe it makes much of any sense for employers to be in charge of this process. But that’s something we’ve chosen through some kind of quasi-democratic process, and the ACA is designed to keep that less-than-ideal structure in place while universalizing access to health care.”
It’s my understanding that employer provided health care came about due to the wage controls imposed on the economy during WW2. Since employers could not attract staff with pay, they used this benefit. The fed gov also allows these employer costs to be deducted from company taxes. I wouldn’t call that anywhere near “chosen” or even “quasi democratic”.
And, given the long standing and extensive “meddling” by gov’t in health care, I reject the assertion that “for most people, what constitutes health care is a relatively defined set of activities.” Rather, the population has simply grown accustomed to what has been decreed. What people would consider acceptable standards might very well be much different provided they had access to other viable options. This, of course, isn’t possible since the very same gov’t meddling has prevented it-albeit with collusion from the industry.Report
Who put wage controls into place? Who “decreed” any of this? A dictator or the duly-elected representatives of the people?Report
Given that less than 50% of the eligible population (my figures aren’t exact) actually vote, I wouldn’t call any president or administration “elected” either, certainly not given the common understanding of “democracy”. Given the constant exceeding of constitution (strictly interpreted ofc) by the fed gov (most of what they do exceed that authority. ) Given that during this same war, the Census was used to identify Jap-Americans, round them up, and house them in concentration (relocation) camps, I wouldn’t call much of what the administrations did during WW2 as being in support of “democracy” or what the “duly elected” wanted either. IIRC, the majority of folks didn’t want war with Germany or Japan prior to Pearl Harbor. On my slide scale of “duly elected – dictator” I’d put on the side leaning to the dictator, but hey, I think the constitution means what is says it means. Other opinions differ. 🙂
I’d also like to add a non related comment. I’m glad I found this website. I’ve read it for several months and have enjoyed it. Lots of well reasoned thinking and writing. While I disagree with a lot written here, the discourse is almost always respectful, something I don’t see much elsewhere on the interwebs. You all are to be credited.Report
“I think the constitution means what is says it means.”
Everyone thinks the Constitution means what it says it means. The problem is that we disagree about what it says.Report
Welcome, Damon!
You are quite right about the origins of the tax deduction for health care benefits. It began as a way for employers to skirt wage controls, one that was apparently blessed by an IRS bureaucrat.
I wouldn’t dignify it with the term democratically chosen. And that’s using “dignify” very, very loosely.Report
democratically chosen or not, it was still a terrible idea. It would be no less terrible even if it passed by direct referandum.Report
By the way, this is more in reference to something James said in the other thread: condoms aren’t part of this policy. Condoms, morning after pills, and anything else that doesn’t require a prescription, wouldn’t be covered by insurance anyway. This refers only to prescription birth control methods (mostly the pill, ring, etc.).Report
Which are usable only by women. We’re being silly if we think this is anything more than religious fundamentalists demanding that they be allowed to keep women in their place. They don’t want to change with the times and they’re expecting the world to cheerlead them for it.Report
My question is this: is health care a form of concentration? Can employers ban certain uses of other types of compensation? Can they say that employee’s can’t buy condoms with their salaries, for example? If not, then how is saying what they can and can’t buy with their prescription drug coverage different? I’m open to being shown how it’s different, but at the moment, I don’t see it.Report
Can they say “you can’t smoke in your off hours” or “you can’t have a MMJ card even if you only partake on Saturday afternoon”?Report
I don’t think they should be able to. Can they? I know the former is an issue that’s come up recently, though I don’t know whether or how it’s been resolved.Report
On #1. I worked for one such company in 2001-02. They reserved the right to take blood tests.Report
To be fair, I don’t know if anyone actually got the blood test. It was just in the employment contract. They did test for it during regular urinalysis, though. Fortunately, I never got tabbed for that.Report
I have a couple of friends who work for CDOT. They tell me that if they get a card, they’re fired and will NEVER AGAIN be eligible to work for CDOT.
They brag about having a “drug-free workplace” and, dangit, they mean it.Report
Thank you for your musings, Ryan. We’ve debated some of these points already, but I’d like to reiterate that official Catholic teaching, which some Catholics desire to follow, considers immoral not only the use of contraceptives, but also any close material cooperation with their use. Therefore, the HHS mandate will require Catholics to act in a way that violates their religious norms. Many Catholics already do so and don’t care, but some, a minority, understandably wish to live according to their religious faith. If religious liberty means anything, then we should honor that wish, unless there’s a sufficient reason to violate their religious liberty. As universal access to contraceptives could be achieved without requiring church’s to provide coverage, I see no sufficient reason to do the latter in order to attain the former.Report
By the way, I have some thought on Kevin Drum’s analysis here.Report
What is the difference between Catholics who don’t want to pay for contraception and Catholics who don’t want to pay for the death penalty? (Besides the obvious political implications of both.)Report
I think that if The State started handing out rubbers and norplant, the Catholic Church would complain about that in the same way that they complain about war and the death penalty (we’d see all of these uppity nuns who just don’t *UNDERSTAND* holding signs in front of government buildings).
This isn’t what The State is doing.Report
Jay, I think you’re a real asshole sometimes, but you are also a national treasure.
These two things are not unrelated.Report
The death penalty is paid for by taxation, which constitutes a more remote material cooperation and less of an offense against conscience.Report
I guess at the end of the day, it comes down to this. I simply find it absurd that the requirement that all employer sponsored health plans (including plans sponsored by Catholic hospitals and universities for their employees) provide coverage for a host of basic services, including those related to family planning, is somehow an attack on religious liberty. Catholic universities and hospitals are primarily secular institutions, employing, teaching, and treating a hugely diverse cross section of America, charging fees for the services they render, receiving government grants, contracts, subsidies, and payments. The employees at these institutions, whether they be doctors, nurses, orderlies, janitors, professors, or clerical workers are rarely priests or nuns these days and are employed for their technical and professional prowess rather than their spiritual vocation, and many, if not most, are not Catholics.
There is no absolutely zero reason that the employees of these institutions should not be entitled to receive the same basic health benefits as those mandated for all other employer based programs in the United States. No one is being forced to use contraception against her will or conscience by these regulations. Quite simply, their employer is not being allowed to impose the beliefs of a handful of unelected men to deprive them of a medical service that an expert panel, in accordance with its legislative mandate and the democratic process, has deemed an essential health service.Report
This is a little more strongly worded than I would endorse, but I think it’s generally the right idea. The first paragraph in particular strikes me as a valuable contribution to my position.Report
entitled to receive benefits
And the fundamental disconnect finally establishes itself.Report
Yes, our representatives, elected through a democratic process, passed a law stating health care insurance has to cover certain things. This is how things are done in a democracy.Report
And we’re discussing whether this law is unconstitutional with regards to the “free exercise” clause.
Our representatives, elected through a democratic process, pass all sorts of unconstitutional laws.Report
I point to the 28 states that already have the same regulations without those laws being overturned. If the Catholic Church really thought it was unconstitutinal, they would’ve gone after those state laws. This is PR and more self-victimization by the Bishops of the Catholic Church,Report
Note: it appears that a large number of those 28 states have religious exemptions of the sort that the HHS is denying here.
There are a number of states that do not, of course, so your point still stands on the raw constitutionality, but I wanted to point that out.
A lot of people are suggesting that since 28 states are already doing this that the pushback to making it national cannot be legitimate. But it doesn’t appear that 28 states are doing what the HHS is doing here, but rather 11 (at most, others are saying 8) or so.Report
That doesn’t seem fair. The law creates entitlements for employees of all other establishments. His claim is that these people should also be entitled to those same things.
He may believe they are also entitled to these things in the absence of the law, but it seems like it should be relatively uncontroversial to point out that the law has created some entitlements.Report
The law forces insurance companies to carry birth control?
I’d think that the insurance companies would only have had to do some math in their head to figure out that birth control was cost effective.Report
Well, it does, right? The entire reason this rule had to be made was because the ACA requires that health care coverage include birth control. If you work for a non-Catholic organization, it’s relatively uncontroversial (assuming that this part of ACA is constitutional) that that organization has to provide you with health coverage that includes birth control. This is certainly an entitlement, right?Report
Yet, shockingly, there was plenty of crappy insurance out there that didn’t cover it. For one ancedotal thread I found through teh Googles – http://boards.weddingbee.com/topic/insurance-wont-cover-any-birth-controlReport
Yeah, this always struck me as weird. Obviously lots of us here are of the understanding that paying for birth control is surely cheaper in the long run than paying for the unplanned pregnancies and the health care of the resulting kids, even though they’d be paying for all women’s birth control in the first case (or at least all those who chose to use birth control) and only some pregnancies/kids in the latter case.
Is there anyone here with real-world health insurance industry experience that can explain this apparent paradox to us? Because lord knows we all agree those greedy corporate insurance bastards don’t normally pay out a penny more than they have to. So what gives?Report
On this, I’ll probably blame the corporations buying the health insurance instead of the health insurance company.
Most likely, there are several package offered to large employers, and large employers who pay low or middle-level wages are more likely to choose the more stingy insurance plan that may cover pregnancy because that’s part of every insurance plan but doesn’t cover birth control because that’s considered a “luxury” to some.Report
Maybe, but the insurance company itself would pay out less by offering contraception, so contraceptive plans ought not remain more costly over time. If anything, because they–presumably–save the insurance company money, the insurance company should want to steer companies toward such plans, and so should actually offer a discount for them.Report
Obviously, corporations just hate us all personally.
If it saves money, they do it. If it costs money, they do it. As long as “it” ends up hurting individuals. Whatever “it” may be.Report
Jason,
Well, you know that’s always been my position. 😉Report
I don’t know the answer however i’ve had the experience of being told by an insurance company they wouldn’t pay for something because it was preventive care. Does that make economic sense, i can’t see how it does but obviously there is some calculation that leads to that.Report
Tobacco cessation is rarely covered, despite the enormous cost benefits of fewer smokers. As best as I can figure, the reason for this is that I am with one insurance company for a limited amount of time. The costs of Zyban? that they’re paying for. The eventual health costs of a long-term smoker? Well, what are the odds that I will have the same insurer? There’s a decent chance I’ll be on Medicare when it’s time to get fitted for an oxygen tank.Report
But considerably less chance that your wife will be on Medicare when she has a C-section at the end of an unplanned pregnancy. (Or so one hopes!)Report
Oh, I agree. But I think the same mentality can be in effect. It’s less comparing the costs of prevention versus the costs of pregnancy. More, comparing the costs of prevention, minus those that would buy the prevention for themselves OOP, versus the cost of pregnancy, minus those who will quit their jobs during pregnancy or change carriers.Report
Assuming the math works out, that could explain it.
In that case it would be a sort of collective action problem. Each insurer would be better off if all insurers offered contraceptive coverage (because then they wouldn’t inherit another insurer’s unplanned pregnancy/child), but no one would be better off doing it on their own, and each would be best off every insurer but themselves covered it.
Prisoner’s dilemma sure has lots of explanatory power.Report
To follow up on my own question, here is a study demonstrating that emergency contraception is cost effective. And here’s one showing that 15 different contraceptive methods are all cost effective.
I don’t think we can assume that health insurance executives are so in love with the idea of population growth that they are willing to expend corporate resources on producing more babies. And while claims of sexism are common, I find those rather hard to reconcile with claims of corporate greed (corporations are greedy and want to maximize their profits except that they’re willing to forgo profits just to keep women in their place).Report
Fished up thread.
The issue, that apparently, my Libertarian/librul friends can’t figger out is that gummint is forcing the Micks to participate in an action that violates certain doctrines/tenets of their faith. Any libertarian worth a pint of urine would be at the barricades with the Micks on this, it ain’t rocket science.
Fish that Kenyan-Marxist and his coterie of drooling ideologues.Report
“We’ll take the n*****s and the Chinks, but we won’t take any Irish.”
I’m more concerned about the Eyetalians, Poles and those poor oppressed Austrians.Report
So CUTE!!! [pats RC on head]Report
If Churchs are exempt, what stops Big Corp X from establishing the Church of Big Corp X with a primary tenet being that the enforcement of a minimum wage is immoral and claiming an exemption to the minimum wage law?
Oh… because the Church of Big Corp X isn’t a REAL religion? Well, well… now who is stepping on religious liberty…Report
I’m also curious…
If this is all so important…why didn’t Obama get huge props for the Plan B decision from self-same bishops? (which wow, pissed off a lot of women.)Report
The US Conference of Catholic Bishops did give Obama huge props.Report
Did they send a letter for parish priests to read in praise of Obama?Report
I don’t recall them speaking out in unison how it was a grand victory for freedom of religion and it being an unprecedented step in moral clarity, etc, etc.
ie: the SCALE of the praise was no where near the scale of the freak out here.
For example, they certainly didn’t talk about holding a march in Washington in support….Report
True.Report
Somebody check me on this.
It is still permissible for a religious employer to discriminate on the basis of religion, yes?Report
Pat,
Generally, yes, but not necessarily always. A Catholic school can refuse to hire a Muslim who is an expert in Christianity to teach their religion courses. I’m not so sure they can refuse to hire a Muslim as a janitor.Report
I think we sometimes play too fast and loose with the term “discrimination”. It is not discrimination for a bus company to refuse to hire blind people as drivers, since sight is a legitimate requisite of the job. I can see a case being made that being a member of a faith is requisite to hold certain, but not all, positions in a religious institution. I’m sure there exist positions where the requisites might be questionable, but probably better to err on the side of allowing the business to dictate the terms of their hiring. Numerous jobs require high school or college degrees, when it is certainly possible to do the job without them and/or to acquire the necessar skills through other means. Yet these criteria stand without being labeled discriminatory.
Basically, it is not discriminatory to refuse to hire unqualified people.Report
The word discriminate has picked up a negative connotation, but I’m not intending it that way.
I know, for example, that you must agree to a certain code of behavior to work at BYU. My understanding (and it may be incorrect) is that this is generally a latitude given to religious organizations.
Is this incorrect?
If it isn’t, then the Catholic church has a solution here: just hire people who agree not to use contraception. You give them the health coverage with a benefit they won’t use, and you’re golden.
I mean, I think this is hamfisted and stupid and all, but I don’t see that there aren’t already a couple hundred other workarounds, too. The Catholic church has operated just fine in California with these requirements.Report
I think we can look at this as an issue of honesty in advertising. The state has established specified requirements for what can be called a “hospital” or an “insurance”, an important regulatory function. And because these things serve the common good, the state has also carved out benefits and exemptions for them that ordinary commercial services do not receive. If an organization objects to these definitions they should be able to run their own pseudo-service at the cost of sacrificing the state benifits and having to tell potential employees explicitly that they are only providing a pseudo-service.Report
So question to the objectors:
This ruling is essentially a ruling on what qualifies to the Feds as “health insurance” under the mandate. Hypothetically avoiding this provision is as simple as opting to not provide health insurance and simply providing a market rate boost to someone’s income to buy on the private market.The question here I guess is: Why not do that if it’s really a matter of conscience?
The tax benefits of offering benefits (insurance) over a tax increase? Well sorry, bub but if this is such an outrage worthy moral issue, then an extra few percentage points for taxation shouldn’t be a huge issue, right?Report
So if it were the other way around, and the employer lost their tax exempt benefits package because they wanted to provide contraceptives – then, hey put your money where your mouth is right?Report
Absolutely. I’d think it was stupid policy, but I wouldn’t be calling it an assault on the 1st Amendment.Report
If in fact there was some regulation that said that health insurance that covered contraception did not mean the federal definition of health insurance, but I as an employer thought it was a moral imperative that I provide it to my employees, yes, I’d accept the lack of tax benefit for providing it and instead give them enough money to just get that plan on the private market.Report
That’s cool. So all that’s needed is a “federal definition of insurance” change – and it’s no big deal, just take it.Report
In order for regulation like the ACA’s mandate to actually mean something, a minimal definition of what qualifies as “health insurance” is important. You don’t have to agree with the definition, but definitions are necessary before you can have regulations.Report
Could an organization form a conscience-based coverage plan if it willingly chooses to forfeit the tax-breaks? At which point the churches can offer coupons for this plan to their employes? In other words, is this just a debate over weather the government should subsidize conscience-based insurance, or is such a plan entirely forbidden?Report
First time poster here, after just finding your site. I’m really impressed by the level of the conversation, looking through several topics. On this issue I have 2 comments, and they come from the point of view of a non-Catholic who works for a Catholic organization.
First, how many “Catholic organizations” are really part of the church? Most Catholic universities are functionally independent, with bishops having no say in their operation. (See, e.g., the inability of the bishops to prevent Obama’s appearance at Notre Dame’s commencement.) Is the same true for the hospitals? And if a university can call itself Catholic without being a direct part of the church hierarchy, what’s to prevent a trucking company from doing the same? Or Domino’s Pizza? Canon law probably wouldn’t allow it, but canon law should have no legal standing in US courts.
Second, if the 1st amendment means anything, it has to mean that each of us is free to exercise our religion as we define it, not as some outside hierarchy defines it. That is, the view of the bishops on what is or is not Catholic should be no more important to our government than the view of Jane or John Doe in the pew. And since each of us could define our own religions in whatever crazy way we wanted, the only way for the government to operate is to pass laws that treat all citizens exactly the same. Of course, this also means not passing laws specifically designed to harm one particular religious group, but I don’t see the contraception rule as a specific attempt to hurt Catholic citizens.
In my view, the bishops should be treated exactly like CEOs of other large, non-profit organizations. If the board of the Red Cross suddenly decided that they were against minimum wage laws, I don’t think we would consider waiving them. We would all miss the Red Cross if it suddenly closed its doors, but we wouldn’t seriously contemplate redefining our system of legal rights just to satisfy that one board’s viewpoint. And no one would even think to bring up the 1st amendment in the discussion.Report
Hi Christopher!
The short answer to your Domino’s question is that you cannot be a for-profit entity and a religious organization at the same time. There is a question as to whether Harvard University could suddenly declare itself Catholic. The issue is not whether the Catholic Church recognizes it as such, but whether it convinces the government that it has a religious, in addition to educational, mission. Being involved with the Catholic Church may make that argument easier, but it’s not necessary. Abilene Christian University is associated with the Churches of Christ, which has absolutely no hierarchical structure whatsoever.
The distinctions between religious and non-religious entities goes far beyond this discussion. Even though religious entities get some perks, we have had surprisingly little in the way of abuse of this. Mostly because being a religious organization means that you are a non-profit. That’s not a decision you enter in to just to avoid paying for contraception.
I’m not particularly worried about Red Cross abolishing the minimum wage. Why? First, lots of organizations have people working for them that make less than minimum wage: volunteers. But when they want someone to show up on time, use skills they actually have, and so on… well, sometimes they can get volunteers to do it, but ultimately they end up paying people something close to market wages (minus some feel-good discount) because if they didn’t, those people would work somewhere else.
None of this is to say that I am with the Catholic Church on this. I actually agree with a fair amount of what you are saying. I just think the examples are a little off. I may write a post with my thoughts on the matter, but for me it comes down to this: If freedom of conscience is important here, I’m not sure why you should have to be a church – rather than just a moral individual – to exercise it. And if it’s something too important to allow from freedom of conscience, then I don’t exactly see why churches should be exempt.
I could, I suppose, see a reason to treat for-profits and non-profits differently, giving the non-profits more latitude as we do with a lot of other things. But, if anything, but that’s not a religious thing. And to me, I’m not sure any of it should be. This should be a freedom of conscience issue, and not a freedom of religion issue. Whichever way we decide.Report
Will, thank you for some very helpful clarifications to the point I was circling around in vain.
I don’t want to go too far from the original topic, but you’ve raised a question I’ve never considered before: in our modern, highly pluralistic society, is there any functional difference between freedom of conscience and freedom of religion? I know nothing of the underlying constitutional law, but I have a hard time thinking of any difference between these two ideas that doesn’t just serve to give preferential treatment to large, organized religions over the individual with his/her own personal set of moral and philosophical beliefs.
Report
“[T]he text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity CommissionReport
Tom, thanks for the citation. Very interesting read, especially the detailed historical discussion of the precedents. I have to admit that I find some of it quite disturbing, especially the Kedroff v. St. Nicholas Cathedral decision, which held that Russian Orthodox Churches were the property of the hierarchy back in Russia, even though the Kremlin had basically taken over the church and was using it as a propaganda outlet. Good thing this decision wasn’t binding during the American Revolution, otherwise George III would have been allowed to maintain ownership of all Anglican parishes as head of the Church of England, instead of the American Anglicans breaking off on their own to form the Episcopal Church.
Even though it appears that the Supremes disagree with me, I still find it disturbing that self-appointed religious leaders seem to have “special rights” that even their own congregants don’t share. And I say this even though (and perhaps because?) my father was one of those religious leaders.Report
Stick around. Comment lots.Report
Here, here.Report
Chris-
I wonder this same thing. How do we define religion? And isn’t allowing the government to decide what is or is not a religion an automatic violation of the 1st Amendment? Why is the Church of Jesus Christ recognized but not the Church if BSK? Isn’t giving one of us tax exempt status, as well as the other legal, social, financial, and political privileges a religion enjoys, and not the other an endorsement of the former and/or a restriction on the latter?Report
What if a tenet of my faith is that our institution makes a profit? The government requiring religious institutions to be non-profit is a de facto concession that the government has a say in what is or is notma lefitimate religion.Report
It turns out religious liberty might have been dead for the past 12 years.
http://motherjones.com/politics/2012/02/controversial-obama-birth-control-rule-already-law
President Barack Obama’s decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.
[Despite the longstanding precedent, “no one screamed” until now,” said Sara Rosenbaum, a health law expert at George Washington University.
In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don’t offer prescription coverage or don’t offer insurance at all are exempt, because they treat men and women equally—but under the EEOC’s interpretation of the law, you can’t offer other preventative care coverage without offering birth control coverage, too.
“It was, we thought at the time, a fairly straightforward application of Title VII principles,” a top former EEOC official who was involved in the decision told Mother Jones. “All of these plans covered Viagra immediately, without thinking, and they were still declining to cover prescription contraceptives. It’s a little bit jaw-dropping to see what is going on now…There was some press at the time but we issued guidances that were far, far more controversial.”
After the EEOC opinion was approved in 2000, reproductive rights groups and employees who wanted birth control access sued employers that refused to comply. The next year, in Erickson v. Bartell Drug Co., a federal court agreed with the EEOC’s reasoning. Reproductive rights groups and others used that decision as leverage to force other companies to settle lawsuits and agree to change their insurance plans to include birth control. Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained, and over the following decade, the percentage of employer-based plans offering contraceptive coverage tripled to 90 percent.
“We have used [the EEOC ruling] many times in negotiating with various employers,” says Judy Waxman, the vice president for health and reproductive rights at the National Women’s Law Center. “It has been in active use all this time. [President Obama’s] policy is only new in the sense that it covers employers with less than 15 employees and with no copay for the individual. The basic rule has been in place since 2000.”
Not even religious employers were exempt from the impact of the EEOC decision. Although Title VII allows religious institutions to discriminate on religious grounds, it doesn’t allow them to discriminate on the basis of sex—the kind of discrimination at issue in the EEOC ruling. DePaul University, the largest Roman Catholic university in America, added birth control coverage to its plans after receiving an EEOC complaint several years ago. (DePaul officials did not respond to a request for comment.)
As recently as last year, the EEOC was moderating a dispute between the administrators of Belmont Abbey, a Catholic institution in North Carolina, and several of its employees who had their birth control coverage withdrawn after administrators realized it was being offered. The Weekly Standard opined on the issue in 2009—more proof that religious employers were being asked to cover contraception far before the Obama administration issued its new rule on January 20 of this year.
“The current freakout,” Judy Waxman says, is largely occurring because the EEOC policy “isn’t as widely known…and it hasn’t been uniformly enforced.” But it’s still unclear whether Obama’s Health and Human Services department will enforce the new rule any more harshly than the old one. The administration has already given organizations a year-long grace period to comply. Asked to explain how the agency would make employers do what it wanted, an HHS official told Mother Jones that it would “enforce this the same way we enforce everything else in the law.”Report