Bodily Integrity

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  1. Avatar Burt Likko
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    says:

    I suspect you’re frustrated in that the Hobby Lobby case presents a case by which individuals seek to de facto restrict access to contraception while never placing that right in legal play, and indeed de jure invoke their own other important rights in check against them.

    For me, the question is whether restriction of access to contraceptives is the actual intent.

    As to the more general statement of the right to bodily autonomy, evidenced in the right to use contraception or abortion to control pregnancy, I’ve never suggested anywhere that this is not a fundamental right or that the government ought to be denied power to restrict it.Report

    • Avatar zic in reply to Burt Likko
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      says:

      Many people think they have the right to say what happens to women’s bodies.

      It’s evidenced in cases like the Greens, where their right to abide by their religion never really takes into account their employees right to bodily integrity — their presumption rests on the historical presumption that women’s reproductive organs are subject to other’s moral beliefs.

      We can debate if the Greens actions actually restrict an employee or not; but that’s not really the point. it’s that underlying presumption of right to control someone else’s body that troubles me; and the notion that 1st amendment rights to belief take precedence over another’s bodily integrity. My hypothesis is that it’s so ingrained into our culture that we have trouble recognizing it; that his is because it was not enumerated, and it was not enumerated because it is part of the common law and accepted for men.Report

      • Avatar Burt Likko in reply to zic
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        says:

        I truly do not see an “underlying presumption of right to control someone else’s body” in what the Greens and Hobby Lobby are trying to do. That really doesn’t seem to me to be their intent. They concede that they cannot prevent an employee from buying (e.g.) Plan B if the employee wishes to and uses her own money; nothing in their argument suggests (to me) that they would even try.

        I do see how should they prevail, it would be, as a practical matter, more difficult for a Hobby Lobby to get this drug and use it to better control her body. But I don’t see how that fact increases the burden on the Greens or their corporation to facilitate access to the drug, any more than the employee’s right to keep and bear firearms and decision to buy a shotgun requires the Greens to subsidize her purchase of that weapon. I can (and in fact do) support and affirm the emploee’s right to by and legally use the shotgun without requiring the Greens, however indirectly, to pay for it.

        I bear in mind that I get the benefit of being about as socially privileged as a person can be, being in this case male. So to what has my privileged position blinded me?Report

      • Avatar zic in reply to zic
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        says:

        Because you have always had a voice; you do not have to live with the notion that your body and it’s reproductive capacity are others to control and negotiate.

        Women do not have that basic right in the absence of contraception.Report

      • Avatar Stillwater in reply to zic
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        says:

        On zic’s point here –

        It seems to me that believing bodily integrity is a right doesn’t justify the contraception mandate without an additional premise. I mean, I have a right to self-defense but gummint would be wrong to impose a gun mandate on life insurance companies whereby they had to provide me with one to defend my own life. So what’s the premise? zic, you seem to be arguing that the mandate prevents other folks from imposing restrictions on women’s basic right to biological autonomy – either by law or practice – which ought to fall under the concept of general health.

        I’m down with the second part of the justification, but not so down with the first. It seems to me that one argument against the mandate is that women have access to contraception in all its myriad forms so even as it stands right now (without the mandate) no rights of women are being violated. (Unlike if gummint were to outlaw plan B, for example.)

        Personally, I think the second part of the argument is the best way to go here: women’s reproductive health is necessarily part of their overall bodily health, so given that contraception ought to be covered as a matter of principle, the government is justified in proactively ensuring that it is.

        Of course, that’s not the end of the story, given the types of historical and cultural evidence you cite, and given the issues which make the Hobby Lobby case an interesting one.Report

      • Avatar zic in reply to zic
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        says:

        @stillwater

        I’m arguing that the mandate should never have been required, and wouldn’t have been if we recognized bodily integrity as integral to women’s rights, without it, women cannot fully participate; they are subjugated. We have all of history to prove this, too. I’m arguing that that right of bodily integrity takes precedent over someone else’s religious beliefs; and we should be very clear about this because religious beliefs are used to usurp women’s bodily integrity.

        That we are arguing about the Greens, about abortion, about what date rape really is, all suggests we fail to grasp the basic notion of bodily integrity as applied to women.Report

      • Avatar Saul DeGraw in reply to zic
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        says:

        @burt-likko

        I do but I am going in with a cynical eye. Just because they are smart enough not to say it, doesn’t mean that it isn’t there. I don’t see a reason to give them good faith in this case.

        The Greens/Hobby Lobby have constantly called themselves deeply Christian in the Evangelical sense. One thing I have read again and again in Evangelical households/families/belief structures is the need for women to submit to their husbands, fathers, men in their lives, etc because this is traditional or what not.

        There are daddy-daughter pledges that reach truly creepy levels in my secular eyes.

        There is stuff like this:

        http://www.slate.com/articles/double_x/doublex/2014/01/candace_cameron_bure_from_full_house_to_balancing_it_all.html

        There are evangelical colleges that require female students to ask their dads for permission before going on dates/entering into romantic relationships.

        If this is not about control, I don’t know what is.

        I think there is enough evidence of evangelical culture seeing female submission* as ultra-important that one can extrapolate that the Greens/Hobby Lobby would want to do it for their female employees. I would need clear and convincing evidence (beyond their own words) to be convinced otherwise.

        *To be fair, Haredi Judaism could do the same for women and I am not found of Haredi Judaism either.Report

      • Avatar Kim in reply to zic
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        says:

        Burt,
        I do as well. If they were willing to just pay the fine (which is all that the freethinkin’ liberals around here are asking), we’d have no trouble.

        They’re effectively asserting that “health insurance” (to keep you in good health) should not be about contraception/abortion.Report

    • Avatar Brandon Berg in reply to Burt Likko
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      says:

      I suspect you’re frustrated in that the Hobby Lobby case presents a case by which individuals seek to de facto restrict access to contraception

      No. This is a fundamental mischaracterization of the issue at hand. Refusing to provide something is not restricting access to it. Hobby Lobby is not restricting its employees’ access to contraception any more than it’s restricting their access to food or shelter. Neither is it restricting its employees’ access to contraception any more than you are. If declining to provide something is restricting access to it, then everyone is equally guilty.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @brandon-berg

        Since you’ve obviously not bothered to read the IOH report, it’s pretty obvious that you don’t know what you’re talking about. Health insurance, by law, not must cover basic preventive health care needs. And the only reason that HL feels any ability to not meet that requirement is rooted on the ancient notion, codified by their beliefs, that women do not have bodily integrity because they get pregnant.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        zic, Brandon is clarifying the nature of HL’s complaint and personally I think his view of it is correct, for whatever it’s worth.Report

      • Avatar Creon Critic in reply to Brandon Berg
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        says:

        It is not merely declining to provide something, important context is missing there. And you’re missing the work de facto is doing. The government has mandated a baseline, saying contraceptives coverage is important preventive care for women. A party fighting to deny their employees the baseline, especially given how health care is funded in the US, is in effect restricting access for their employees. Acting counter to the mandate, an attempt to institute widespread affordability and access to health care, it is a foreseeable consequence of the employer’s actions that some contraception options would shift from affordable to unaffordable.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @stillwater

        So you think it would be okay for a company to offer insurance that didn’t cover vaccines for insured children if those vaccines were a violation of the employer’s religious beliefs?Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        zic,

        I disagree with HL’s argument on this topic, and I disagree with Brandon’s view of what the issue reduces to, but that doesn’t prevent me from agreeing with an accurate description of what those arguments and views actually are.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @stillwater

        My issue with Brandon’s views are that they’re rooted in the world where women’s rights to her body are subject; he does not abstract up.

        That the HL case inspired me to write this is evident. But it’s a symptom of the ingrained notion to consider ladyparts up for control. So my post isn’t about HL, so much as the underlying discrimination built into our culture that makes what HL is doing seem reasonable in some way. He grants the owners of a company more rights then he grants the women working for the company.Report

      • Avatar Tod Kelly in reply to Brandon Berg
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        says:

        BB and Still –

        While you might be correct — in certain semantic readings — that it isn’t “restricting access,” it clearly is an attempt by an employer to dictate what kinds of healthcare their employees should and shouldn’t have access to. Moreover, it’s an attempt to dictate healthcare employee healthcare that in no way affects job performance (as opposed to, say, medical marijuana).

        Now, you can argue that the entire debate over the mandate should be centered around employers’ rights with regulated employee benefits rather than employees’ rights with regards to the privacy of their own healthcare choices. But that’s a decision *you* make, consciously or not.

        Most women are choosing to frame the debate differently, and that framing is no less valid. And the fact that most women are, in fact, seeing the debate that way seems to be to be very important, and something we should be listening to.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        He grants the owners of a company more rights then he grants the women working for the company.

        Not exactly. What he’s saying in the the comment which started this subthread is based on a conception of rights and postive/negative duties and such. Government’s failure to provide you access to a forum to engage in speech is not a violation of your speech rights. Likewise, failure to provide contraception is not a violation of a women’s right to reproductive health. That’s his view and he’s sticking too it. The fact that you can’t shake him off of it via persuasive argument isn’t evidence that he’s prioritizing the rights of employers over the rights of female employees. It means he’s applying a conception of rights to governmental activity regarding mandatory provision of a good or service and deriving a conclusion from it.

        You obviously disagree with his conclusion. I do to.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        Tod, I agree with you. My point was – and is – that responding to an opponents view requires being clear about what they’re actually arguing. I’m not defending Brandon’s argument here. I’m defending the accuracy of his presentation of his argument.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        And to clarify that somewhat, what I’m really against is circularly interpreting his (or anyone’s) argument thru an ideological filter which discounts or negates the legitimacy of his view a priori.

        I’m not saying zic or anyone else is doing that, of course, but the best way to prevent that outcome is to honestly address the argument presented rather than a phantom argument based on attribution.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @stillwater this little difference is why I wrote this.

        He thinks it’s an employer-provided benefit that the employer has the right to tailor to conform to his or her religious beliefs. And that only works at the level of contraception being on the table for a discussion of control of women’s body or in a nation with a different kind of health-insurance system. We have the system we have; so within the framework of that system, HL either has the right to express their religious beliefs via their employees medical options or employees have the right to the penumbra of privacy. The first rests on the notion that the employer has some say in a woman’s bodily integrity, the second affirms her bodily integrity.

        HL has the choice to not provide health insurance; they can pay the penalty for that and let their employees purchase conforming plans on the exchanges. They say it’s necessary to attract quality employees.

        So Brandon’s really arguing about ACA and if it employees require baseline coverage. He has never addressed my point of bodily integrity; other then suggesting that women can buy it, so there’s no problem; which is a non-answer because its not informed by actual facts.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        @tod-kelly
        it clearly is an attempt by an employer to dictate what kinds of healthcare their employees should and shouldn’t have access to.

        What is the evidence that HL is trying to dictate that its employees should not have access to those 4 (?) particular contraceptives? Why isn’t it more accurate to say that they think the access should be through other channels?Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        zic,

        I don’t want to speak *too much* for Brandon, but after having lots of discussions with him over the years I think I can pretty comfortably say that this

        He thinks it’s an employer-provided benefit that the employer has the right to tailor to conform to his or her religious beliefs.

        isn’t a good characterization of his view. My guess is that main criticism is directed at government, and that he thinks government has no right (authority, legitimacy, whatever) to impose this kind of mandate on insurance companies or firms that provide health insurance and disagrees with the specific justifications employed to reach that conclusion.

        So Brandon’s really arguing about ACA and if it employees require baseline coverage. He has never addressed my point of bodily integrity; other then suggesting that women can buy it,

        On the second point, Brandon has responded by saying that women already have access to contraception, and insofar as bodily integrity is an accorded right women can exercise that right to what he views as the full extent of the law. His argument isn’t against birth control (or in favor of employers) but against gummint muddling around in this type of stuff. I think BB’s been pretty clear about that actually, but we’ll see if/when he responds to your comment.Report

      • Avatar Tod Kelly in reply to Brandon Berg
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        says:

        James — That’s like when conservatives politicians in Oregon tell me that they have no desire to ban gay marriage, they only want to make it so that only straight people are allowed to be wed or stay married.

        If HL didn’t care about what kind of healthcare their employees had access to, they wouldn’t be suing the federal government. Period.

        The rest is just academic niggling.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        On the second point, Brandon has responded by saying that women already have access to contraception, and insofar as bodily integrity is an accorded right women can exercise that right to what he views as the full extent of the law.

        Which is why I suggested he was uninformed and should make that argument after he reads the 250 pg. report on in gaps for women’s preventive health care. He can make whatever points he wants, but he’s not making an informed point, he’s making an ideological point.Report

      • Avatar Brandon Berg in reply to Brandon Berg
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        says:

        Stillwater has it right. It’s one thing to say that employers should be compelled to provide free contraceptives for their employees. I disagree with that, but it’s a reasonable position to take. To characterize an employer’s decision not to do so as denying its employees access to contraceptives is fundamentally dishonest. This is a matter of simple logic and not up for debate.

        Zic: Your 250-page report is irrelevant to this question. The law is irrelevant to this question. Refusal to provide is not denying access. Period. I’m not asking that change your position on the policy issue. I’m just asking that you cut out the bullshit and express your position honestly.

        Anyway, I’m done here. I’m going to be busy for the next couple of days, and I don’t see how I can make this any clearer.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @brandon-berg I didn’t bring Hobby Lobby up in the OP at all, other then to point out that the Green’s religious beliefs are an example of the habit of history that suggests women’s bodily integrity is not a right.

        I did not argue for the mandate in any way; I argued that without contraception, women were subjugated. You provided examples of that very action; responding to Burt as if it were me making an argument about HL instead of responding to my argument that it’s crucial to include women’s bodily integrity in discussions when a religious right is invoked.Report

      • Avatar Herb in reply to Brandon Berg
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        says:

        @brandon-berg

        “Zic: Your 250-page report is irrelevant to this question. The law is irrelevant to this question. Refusal to provide is not denying access. Period. I’m not asking that change your position on the policy issue. I’m just asking that you cut out the bullshit and express your position honestly.”

        Rich of you to accuse someone of being dishonest and asking them to “cut out the bullshit” when you frame the issue as being one of “employers (being) compelled to provide free contraceptives for their employees.”

        That’s, how’d you put it, a “fundamental mischaracterization of the issue at hand.”Report

      • Avatar Murali in reply to Brandon Berg
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        @zic

        So you think it would be okay for a company to offer insurance that didn’t cover vaccines for insured children if those vaccines were a violation of the employer’s religious beliefs?

        For what its worth, even though I’m not Stillwater, I would say yes. And I am firmly of the belief that everyone should be vaccinated. I would even allow a company to offer insurance that didn’t cover blood transfusions in emergencies if it was against their religious beliefs, or hell, even if they just felt like it. The government has no business regulating how a given company compensates its employees. That is between the employee and the employer.Report

      • Avatar LeeEsq in reply to Brandon Berg
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        @murali, absolutely not. Vaccination is a matter of the public health and employers for the most part have no right to tell employees how to raise their children or really most other forms of interference with the employee’s private life. As long as the employee does his or her job than what happens outside of work is not the employer’s business under most circumstances.Report

      • Avatar LeeEsq in reply to Brandon Berg
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        Should an employer be able to limit what an employee does with his or her paycheck on the grounds that its the employer’s money? Should we just see wages and salaries as loans to the employee rather than a transfer of property? Are there any limits to how an employer should be able to interfere with the lives of their employees outside of working hours?Report

      • Avatar Tod Kelly in reply to Brandon Berg
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        @murali Well, that’s a way to go — and to your credit, a way that is intellectually consistent with ruling for Hobby Lobby. Personally, I think it’s dangerous to begin to give your employer the ability to dictate what kind of healthcare you can and cannot have. And under our previous (and perhaps current, but that’s TBD) that’s what you’d end up with.

        More and more, I think that conservatives are cutting off their nose to spite their face. Every time they point out how the compromise doesn’t work for them, I suspect, they hasten the implementation of totally nationalized healthcare.

        I should do a short post saying pretty much this.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        employers for the most part have no right to tell employees how to raise their children or really most other forms of interference with the employee’s private life

        But of course they’re not telling their employees they can’t vaccinate their children. This point of confusion just keeps rising, but it remains wrong each time.

        Personally, I think it’s dangerous to begin to give your employer the ability to dictate what kind of healthcare you can and cannot have.

        And again we have the conflation of what X provides for Y, and what X allows Y to have.

        If anything has become clear through these arguments, it’s that running health care through employment is not only among the worst delivery systems imaginable, but leads to an inability to distinguish between providing and allowing. If I don’t providing my employees ice cream and beer, but make no effort to prevent them from purchasing it, then apparently I am nevertheless dictating that they cannot have ice cream and beer.

        Tod,
        That’s like when conservatives politicians in Oregon tell me that they have no desire to ban gay marriage, they only want to make it so that only straight people are allowed to be wed or stay married.

        Worst. Analogy. Ever. (Well, probably not, but it’s in the bottom quintile.) Conservative politicians are not just trying to avoid performing the marriages, but are trying to ban same-sex couples from getting married, period. HL is not trying to ban these alleged abortifacients, just trying to avoid being part of the provision of them.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        @leeesq
        Should an employer be able to limit what an employee does with his or her paycheck on the grounds that its the employer’s money?

        That’s a strawman. HL is not trying to do this.

        If you want to say there is no distinction between the paycheck and non-cash benefits, think about where that logic leads. I give each employee one semi-automatic weapon a year and 1,000 rounds of bullets each month. If one of them shoots up a school, you can’t hold me accountable any more than if they had just paid for those items out of their paycheck.

        If you’re ok with that, then you’re logically consistent and I won’t argue with your position.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        So what’s preventing Hobby Lobby from not providing health insurance all together so their employees can go on the exchange to choose insurance rather than continue this obstruction of their ability to choose?

        Right now the way HL is structuring its insurance system is a deliberate attempt to constrain employee choices. I’m not sure how this isn’t clear, James. If their problem is direct provisioning, then not providing insurance would work just as well, and from a monetary point of view, probably wouldn’t cost more than offering insurance does at the moment, despite the penalty associated with it.

        So why are they choosing the way that’s most likely to constrain employee access to contraceptive coverage?Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        If I don’t providing my employees ice cream and beer, but make no effort to prevent them from purchasing it, then apparently I am nevertheless dictating that they cannot have ice cream and beer.

        You keep bringing up this false analogy, but under the current law offering health insurance deemed compliant prevents employees from exchange subsidies. Further, Hobby Lobby is arguing that its choices should continue to make their form of reduced coverage compliant, in an effort to effectively keep their employees from choosing alternatives.

        In your analogy it would be as if you not only fail to provide your employees beer and ice cream, but also make sure they can only spend their money (through gift cards? I dunno) to the Vegan Mormon Grocery Store which sells neither. If you make it substantively more difficult for your employees to purchase something that they would have an easier time purchasing otherwise then yes, in fact, you are constraining their choices and making access more difficult.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        Now, as an abstract matter of policy, the government’s position here is not entirely defensible. In fact, it should provide (legislatively) the ability for employers to simply provide their own subsidy to employees to purchase their own health insurance on the exchanges and as a result avoid the penalty. A Wyden style amendment to the law would and SHOULD solve this issue, and I don’t know why conservatives aren’t in front of it trying to push this amendment, it’d be a substantial improvement to the law overall and would increase freedom.

        But since the administration can’t do this unilaterally (which given complaints about unchecked executive power, you’d think this constraint is a good thing) under the current laws, then the structure still remains such that Hobby Lobby’s options can either be to not provide insurance and allow employees to buy their own, have employees sign code of conduct agreements to not use the abortifacients they don’t like, or to try to require the government to let them pick and choose what coverage their employees get.

        They’ve chosen the last option for whatever reason, whether economic or moral, and the practical effect of that choice is that it constrains choice. Is that really a difficult concept to grasp?Report

      • Avatar Mike Schilling in reply to Brandon Berg
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        I give each employee one semi-automatic weapon a year and 1,000 rounds of bullets each month. If one of them shoots up a school, you can’t hold me accountable any more than if they had just paid for those items out of their paycheck.

        We need to declare an analogy moratorium, because that one is just as bad as Tod’s. (I’m making a lot of friends today, huh?) If you did such a thing, it really wouldn’t be your responsibility if someone shot up a school, unless you were knowingly giving guns to people who shouldn’t have them (e.g. felons, or those with mental or emotional problems.), and I don’t think you mean to say that some women can’t be trusted with contraception.Report

      • Avatar Stillwater in reply to Brandon Berg
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        Nob,

        but under the current law offering health insurance deemed compliant prevents employees from exchange subsidies. Further, Hobby Lobby is arguing that its choices should continue to make their form of reduced coverage compliant, in an effort to effectively keep their employees from choosing alternatives.

        Do you have a linky for this claim? I hadn’t heard it before and if true it’s a Game Changer. (Now that we’re into election season I wanted to get used to using that phrase early and often.)Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        @nob-akimoto

        HL argues that providing insurance helps them recruit better employees. Maybe providing full contraceptive coverage would help them with that, but they’ve decided there are limits on how much coverage they are willing to provide. It’s not so different from saying that paying above minimum wage helps recruit better employees, but there’s a limit to how much above minimum wage they’re willing to pay. (Although, admittedly, the motivations are different in the two cases.)

        As to the “the law says X,” I find myself completely gobstopped that the argument keeps coming back to “the law creates this incredibly stupid godawful screwed-up situation, so HL is to blame.” It appears that we all agree the law as written is rather stupid, but nevertheless it gets trotted out as though its existence controls the logic of the debate.

        I don’t buy it. You’re a policy analyst, so analyze the policy. You appear to be arguing that people ought to respond to the law in a way that suits your preferred outcome. That’s not policy analysis.

        I’m with James K, below, when he writes, “If the government is to secure the bodily integrity of women, it should be doing it directly, not weaselling out by trying to make 3rd parties do it and getting all indignant when the 3rd parties are not so keen on the idea.”Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        @stillwater

        I’m dubious about the claim that HL is claiming their policies are compliant in an effort to nefariously ensure their employees can’t get contraceptive care. They’re claiming they’re compliant so they don’t have to provide contraceptive care. People claiming they’ve got the nefarious motive doesn’t make it so, but people who ought to know better keep claiming it’s true, as though it had been entered as court testimony.

        This is a political war, and we know the first victim of war.

        @mike-schilling
        If you wouldn’t hold me responsible for giving guns and bullets to an employee who shot up a school, that’s great. But I’m having a hard time imagining that the liberal-o-sphere in general (which does not mean all liberals) wouldn’t express great shock and anger that a business was paying its employees that way, and that there wouldn’t be numerous calls for holding the employer accountable. (Heck, I’m not so sure the conserv-o-sphere might not do some of that, too.)Report

      • Avatar Stillwater in reply to Brandon Berg
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        “If the government is to secure the bodily integrity of women, it should be doing it directly, not weaselling out by trying to make 3rd parties do it and getting all indignant when the 3rd parties are not so keen on the idea.”

        Well, that would be a form of single payer wrt birth control which I wouldn’t be opposed to, but it doesn’t solve any of the political problems surrounding the contraception mandate (if anything I think it’d exacerbate third party reactions) and it’s also inconsistent with the model enacted into law. As zic said somewhere on this thread, the ACA is the paradigm we’re working both in terms of current law as well as the model by which the old status quo ought to be evaluated.Report

      • Avatar Stillwater in reply to Brandon Berg
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        James,

        this may sound silly given how much vitrual ink I’ve shed on the topic, but I thought HL was seeking an exemption from the mandate rather than trying to change the reReport

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        oosps (the avalanche just scored and I freaked out a bit)

        … rather than attempting to change the provisions which constitute meeting the requirements for meeting the employer mandate, and hence, for preventing employees from qualifying for subsidies if they choose to reject the employers plan. That’s news to me.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        Frankly, James, I’m not even sure if you’re reading the same responses I’m typing up. I understand that it undermines your “I’m the only reasonable one” tone, but I did specifically state that:

        Now, as an abstract matter of policy, the government’s position here is not entirely defensible. In fact, it should provide (legislatively) the ability for employers to simply provide their own subsidy to employees to purchase their own health insurance on the exchanges and as a result avoid the penalty. A Wyden style amendment to the law would and SHOULD solve this issue, and I don’t know why conservatives aren’t in front of it trying to push this amendment, it’d be a substantial improvement to the law overall and would increase freedom.

        For the record, I’ve been against restricting large employer access to the exchanges since 2009 so to argue as though this is somehow something I’ve been ignoring for the last five years and is some great insight of yours is a bit ridiculous.

        But the concept of minimum required coverage doesn’t seem to me to be outlandish, particularly in a system where women had been systematically descriminated against in terms of care provision and pricing for the last half century.

        As for:

        HL argues that providing insurance helps them recruit better employees. Maybe providing full contraceptive coverage would help them with that, but they’ve decided there are limits on how much coverage they are willing to provide. It’s not so different from saying that paying above minimum wage helps recruit better employees, but there’s a limit to how much above minimum wage they’re willing to pay. (Although, admittedly, the motivations are different in the two cases.)

        So your argument is that this is an economic decision rather than a moral one. They could, as a matter of course, not offer health insurance at all, pay a penalty that would be at or equal to the burden they pay to provide health insurance, but they would be facing a competitive disadvantage due to that choice. This is not the same as arguing that it’s a burden placed to exercise their conscience. The motivation here would be more akin to saying that having extra employees would help increase their sales numbers, but that they don’t want to have to pay minimum wage for those extra employees for reason whatever, and they want to have that exception to paying the minimum wage to those employees because it’s a matter of conscience.

        As a matter of policy choices, HL’s chosen track is the one most likely to offload the burden of their conscience decision to their employees. As noted there are a number of other choices they’re capable of making, but only one that requires the law to be changed for their benefit, and that one, also, perversely has the side effect of making it more difficult for their employees to obtain contraception coverage while they themselves maintain a competitive advantage in hiring employees by claiming they offer health insurance coverage.

        Does this not strike you as problematic in any shape or form? You accused me of fitting my analysis to make it more palatable to my ideology, but it seems, to me, that the fact you’re ignoring the practical application of the law and the actual impact it has on the employees is just as ignoring inconvenient truths as anything I’ve written.Report

      • Avatar Glyph in reply to Brandon Berg
        Ignored
        says:

        Declaring an analogy moratorium is just like what Joseph Goebbels did.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        says:

        … rather than attempting to change the provisions which constitute meeting the requirements for meeting the employer mandate, and hence, for preventing employees from qualifying for subsidies if they choose to reject the employers plan. That’s news to me.

        This is a bit of a semantic question, because it’s only once you’re found to be noncompliant in your plans via the minimum required coverage standards that your employees become eligible for the exchange. By absenting themselves from the contraceptive coverage mandate, their plans would in effect be compliant and thus they wouldn’t be assessed a penalty/tax and thus their employees would remain ineligible for subsidies.

        Whether this is an intentional effort to prevent choice or not is immaterial, because the practical effect of their choosing this method of satisfying their conscience is that it would screw the employees.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
        Ignored
        says:

        @stillwater

        OK, I see what you’re saying. Yes, they’re seeking an exemption, not actually saying they’re in compliance. My bad.

        But the provision that by HL providing any insurance their employees are banned from going on the exchanges if they would prefer to is not HL’s fault, and does not mean they are intentionally seeking to keep their employees off the exchanges. It’s the government’s fault, and it’s fair to say it puts HL in something of a bind if HL does not receive an exemption. (Whether they should or not is something I’m still unclear about. I’m mad at the League’s attorneys for not successfully persuading me one way or the other.)

        And I probably ought to emphasize at some point that I fully get why people are peeved at HL, and why they want HL to be required to comply with the mandate. And I’m not arguing that HL are good guys for wanting to avoid contributing to the provision of these contraceptive.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        As a matter of policy choices, HL’s chosen track is the one most likely to offload the burden of their conscience decision to their employees. As noted there are a number of other choices they’re capable of making, but only one that requires the law to be changed for their benefit, and that one, also, perversely has the side effect of making it more difficult for their employees to obtain contraception coverage while they themselves maintain a competitive advantage in hiring employees by claiming they offer health insurance coverage.

        Strategically, for the right-to-life movement, it also defines life as beginning at conception. The Becket Fund, which asked HL to pursue the case and represented them in the case has also file about a dozen other challenges, all along the same line — exploring every potential angle to have these particular forms of contraception exempt for religious reasons because of the belief they potentially end life which begins at conception.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        @jm3z-aitch Now you’re finally getting to my real point.

        HL doesn’t have a good set of options to satisfy their conscience without screwing their employees; and yes, the government didn’t give them one as the law was written.

        But very, very little of the conversation gets around to those employees at all. This was, for instance, never covered by our court; it considered standing, burden, etc.; it never once went to the employee’s interests. When I asked, all I got was a response from Tim that the government was representing the employees interests.

        Which goes back to my point — when it comes to lady parts, if there’s a claim of religious belief, there’s got to be a consideration of bodily integrity. It doesn’t have to come out on the lady parts side all the time; but at least give us the dignity of being considered as having that right.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
        Ignored
        says:

        @nob-akimoto

        I was writing when you submitted that latter comment, so I hadn’t seen it yet.

        So your argument is that this is an economic decision rather than a moral one.

        No, my argument is that for the Greens–based on their own words and actions–providing insurance is an economic decision that’s bounded by a moral judgement.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        says:

        But the provision that by HL providing any insurance their employees are banned from going on the exchanges if they would prefer to is not HL’s fault, and does not mean they are intentionally seeking to keep their employees off the exchanges. It’s the government’s fault, and it’s fair to say it puts HL in something of a bind if HL does not receive an exemption. (Whether they should or not is something I’m still unclear about. I’m mad at the League’s attorneys for not successfully persuading me one way or the other.)

        This isn’t quite true. The provision is that if the employer provides a compliant form of health insurance (ie one that has all the types of coverage including contraception) employees are ineligible for subsidies. By asking for the government to exempt their plan from falling under the mandate provisions, they’re arguing that their plan ends up being compliant, and as a consequence their employees are barred from the exchange. There’s actually nothing preventing HL from offering non-compliant plans, paying the fee/tax/penalty/assessment, then letting their employees opt to go into the exchanges (subsidies and all) to pick their own plan, other than the fact that it would probably be kind of expensive for HL to pick that course of action.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        says:

        FYI, my guess is that the R’s aren’t pushing a fix of the sort Wyden would propose because it would “legitimate” the law and be an effective surrender on their repeal crusade. Which doesn’t make things better, because it’s a change that would be good for the law in general and good for those specific religious employers, but, eh, politics.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        says:

        @zic

        Well, that’s a matter of legal process. The government has passed a law on the basis that it has an interest in creating particular outcomes, one of which is women having access to contraceptives. The government is defending the law on those lines, so Tim is exactly right that they are representing the female employees’ interest.

        That’s an indirect representation, to be sure, but that’s how the law works. It’s not about the fact that these are women’s bodies at stake; it’s about the structure of our legal system. For women’s interests to be directly represented, a woman’s going to have to file a suit that gets into the system.

        Justices don’t just reach out and grab all the related interests in a case and bring them directly to the fore, and as frustrating as that can be in particular cases, overall it’s a good thing. Otherwise they’d be a legislature, not a court.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        says:

        There’s actually nothing preventing HL from offering non-compliant plans, paying the fee/tax/penalty/assessment, then letting their employees opt to go into the exchanges (subsidies and all) to pick their own plan, other than the fact that it would probably be kind of expensive for HL to pick that course of action.

        There are several ways to look at that.

        1. Despite calling it a tax, it’s effectively a fine. The power to tax being the power to destroy, and what not. So the Greens would be fined for their religious beliefs (if we agree that the Greens and HL are synonymous, which of course is the major point of contention in the legal battle).

        2. The Greens are bastards who are using their religious beliefs to try to take the path that most screws over their employees.

        3. The law is badly designed, because if the tax/fine was lower, the Greens might find it cost-effective enough to just offer the non-compliant plans without claiming a religious freedom exemption. (And if they then claimed a religious exemption, we could with greater confidence argue #2.)

        I’m in agreement with you about the Wyden type amendment. I think you’re right that Republicans probably couldn’t support it without weakening their absolutist anti stance. Probably some of the more fundamentalist among them also saw the amendment as a back door to government funding of abortions.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
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        says:

        3. is I think an important point, one where I’m still pretty agnostic about. Like I noted in one of the SCOTUS threads, the cost-benefit here, would, appear to me, to be an important consideration.

        We know the cost of non-compliance is $2000 per employee eligible for subsidies on the exchange. If we take HL at their word, they have 13,000 eligible employees under the law (that is 40hr/week full time employees). This means that their penalty/tax/fee (pick whatever term you want to use) would be $26,000,000 per year (which would increase slowly) vs their claim that the monetary penalty (at least in the case briefs) would range from 26-475 million USD. This out of a company that has a total revenue of about 2.6 billion USD per year.

        Now, KFF has an average single premium per enrolled employee cost chart for employer provided health insurance: http://kff.org/other/state-indicator/single-coverage/

        Using the national employer burden number of $4,266/employee, HL’s burden is about $56 million/year. If they were forced to pay an assessment for this same insurance, their total burden would amount to $82 million. This isn’t a small amount, accounting for about 3% of their total revenue (circa 2012), but it’s hardly a number that rises to the point of being insurmountable for a company of their size.

        Further, I would argue that under the current circumstances HL could probably simultaneously stop offering health insurance, increase employee compensation to make up for same AND pay the assessment whiles till coming out ahead. Essentially they’d have to pay $2,000/employee to the feds, while also paying each employee a bit less than $2,200/year extra to make up for that difference. Since they’re already paying fairly above market wages for employees, I’m not sure this is an unreasonable number.

        Whether or not morally this number is acceptable or not (I do agree that this requirement might be onerous and would prefer that the employees by default be able to pick their plan regardless) is a different matter, but the economics, to me, seems to be more in favor of having them stop offering insurance altogether.

        So what is it we’re missing here?

        This is what gives Zic’s argument that they’re using this as a strategic law suit for religious purposes more weight, insofar as that the cost-benefit arrangement doesn’t seem to favor them making this fight, much less paying the legal fees involved for a protracted legal battle.Report

      • Nob Akimoto Nob Akimoto in reply to Brandon Berg
        Ignored
        says:

        In terms of contextually, HL would basically have to increase the wages of their FT employees by about $1.50/hr to make up the difference. Since most of those employees would be 1) eligible for federal subsidies on their insurance and 2) probably come out ahead in terms of total income AFTER HL stops giving them insurance, I’m not entirely sure why this doesn’t make sense for them as a practical matter.Report

      • Avatar Murali in reply to Brandon Berg
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        says:

        @leeesq

        If vaccination is so important a public health issue and individuals paying for it discourages its use, I’m enough of a squish to ask the state to pick up the tab. And while I think everyone should be vaccinated, I’m uncomfortable with not providing exceptions to people who have worries about conscience. I would like to increase vaccination rates with education etc and finding acceptable workarounds for cases where a particular vaccine may be problematic.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        James,

        And I probably ought to emphasize at some point that I fully get why people are peeved at HL, and why they want HL to be required to comply with the mandate. And I’m not arguing that HL are good guys for wanting to avoid contributing to the provision of these contraceptive.

        Yeah, the more I hear about this and the more arguments and discussion we have, the less inclined I am to find a valid complaint underlying their argument. Starting with Patrick’s argument from he OTSC threads on thru Nob’s arguments on this thread, the case just looks really bad for them, both morally as well as religiously. I still think there’s a legitimate argument to be made regarding the RFRA and fre exercise, but even that argument recedes into the background upon examination.

        As for your disclaimer here, no need to mention it tho I understand the motivation. SInce this is one of those contentious topics, people are inclined to attribute sinister motives to people they disagree with. I think you’ve been a fair and even dispassionate interlocutor on most of the sub-issues involved. For my part I’m pretty sure I disagree with you about this stuff, since I haven’t yet seen a compelling argument for a selective exemption which doesn’t beg a bunch of questions or can’t be defeated by other considerations.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        says:

        @stillwater

        the case just looks really bad for them, both morally
        I guess that depends on one’s moral structure, right? Which gets down to what I dislike about morality–it’s not empirical, so how can we say definitively whether the Greens are morally right to avoid complicity or you are morally right that they need to avoid acts that are de facto discrimination?

        as well as religiously.
        How so? Not to be querulous, but this seems to me like the firmest ground for the Greens. Not that it necessarily means anything legally–just that I see it as the ground which nobody can really dispute them on, because who can say what their religious beliefs really are, or even what God really wants. Moral theory is a rock solid project compared to theology and doctrine.

        I still think there’s a legitimate argument to be made regarding the RFRA and fre exercise, but even that argument recedes into the background upon examination.
        This is where I’m still wholly up in the air. I have no problem saying that a publicly traded company has no free exercise rights. I’d strongly support the argument that a sole proprietorship or a church does have free exercise rights. I’m still waffling badly on the in-between case of a closely held corporation. And to make things worse, I see Mardell Christian Bookstores as having a stronger claim than HL. I could see–were I a judge–ruling that HL doesn’t have a claim as a closely held corporation because their primary business is secular, not religious, while Mardell does have a claim because their primary business is religious. As irreligious as I am, I’m very uncomfortable saying that people who want to spread the word of god and minister to other religious people can only do so in the form of a sole proprietorship–which dramatically lessens their reach–or even perhaps only in the form of a non-profit organization (although, from my religious background perspective, making big change off religion is suspect).

        As for your disclaimer here, no need to mention it tho I understand the motivation. SInce this is one of those contentious topics, people are inclined to attribute sinister motives to people they disagree with.
        Thanks, I appreciate what you said in that grag. But in a case like this I couldn’t blame anyone for reading me that way (and it’s not like I never do it), so it seemed like my responsibility to put that out there, so I didn’t mislead people through omission.Report

      • Avatar J@m3z Aitch in reply to Brandon Berg
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        says:

        @nob-akimoto

        Your math demonstrates that HL could drop coverage and everyone would come out about the same. Good analysis, and let’s take it as true, so that a rational actor HL employee (say one who’s not concerned about the contraceptive coverage gap) would be indifferent between pay bump/insurance exchange option and the HL insurance option.

        Without this being any criticism of the mandate or your analysis, and without this being any defense of the Greens, I’m wondering about how that works as a business decision.

        Are HL’s employees rational actors enough to be indifferent, or would the announcement that their employer is eliminating insurance coverage overwhelm the announcement of the increase in pay? Would the endowment effect matter significantly? I’m thinking particularly of managerial level folk, given that we tend to see being promoted to management as coming with more benefits in our compensation package.

        Could HL end up having a short-term, but large, cost due to turnover and the need to recruit and train, and possible costs due to a temporary decline in management performance? (This is all assuming that the pay increases attract equal talent, so that in the end performance is equal to where it is in the status quo ante.)

        I’m thinking of my own colleagues, presumably all smart people, and how I suspect they would not respond well if in our next contract negotiation the college proposed this plan. And I think much of that is an antipathy to having to think about choices–it’s much simpler to have someone select for you, and to not have to think about the actual cost.

        Again, that’s not in any way a critique of your analysis. I’m just pondering the possible effects.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        James,

        When I used the term “morally” up there, I was just referring to the whole set of possible and actual properties that make our normative claims true. That includes rights and sentiments and utility and consequentialism … the whole spectrum. And I’m not saying that the Green’s don’t have any moral grounds justifying their view, only that the more I consider the more inclined I am to side against them.

        The use of religiously up there was meant to cover the subjective properties (emotions, if you ask me) of “sincerity of belief” and “religious conscience” and all that stuff, which – again – I’m less and less inclined to think is either a)relevant and b) applies to them.

        The RFRA and free exercise stuff matters to me, tho, because a protection against infringing on free exercise is part of the constitution and the RFRA is law. It seems to me that an argument against the contraception mandate gets off the ground simply by appealing to a religion which proscribes contraception use coupled with those two provisions. Whether or not the mandate infringes on free exercise is exactly what’s a issue, it seems to me, and on that score I side with Patrick’s argument that since firms can require employees to pledges against using contraception in exchange or employment (or whatever) the structure of the law doesn’t impinge on their conscience. (Not to mention Burt’s argument that corporations cannot hold religious beliefs in any event, which I find very persuasive.) As for the least restrictive means test … I think that government has a compelling interest in requiring contraception coverage and given that (as I see it) there is no burden imposed on the Greens or HL (since they have means curently available to them to act consistently with their consciences) there is no burden imposed on them.

        Instead, I think zic and others are correct that the most charitable understanding of the Green’s view is that they view contraception use fully generally as a bad thing and are attempting to restrict other people’s (ie., women’s) access to it on the grounds that employers have the right to determine compensation based on their own religious beliefs and conscience. But that’s where Murali’s good (libertarian!) point enters the argument: employers ought to have the right to determine compensation packages (or not) as they see fit irrespective of their reasons. That’s a good general point, I think, and constitutes a valid criticism of the ACA, but is less applicable (maybe not applicable at all, I’d have to think about it) as a criticism of provisions imposed by the ACA given that the ACA is current law. (There are other, independent, reasons to think the criticism falters as well, at least, for those of us who aren’t libertarians. 🙂

        So at the end of it, I’m just not quite sure what the basis of the Greens complaint is except that it’s pretty clear that they don’t wanna comply with the contraception mandate. THey just don’t like it. And I’m not sure that’s sufficient reason to grant them their desire given the compelling reasons (to me, anyway) for requiring them to meet the requirement.Report

      • Avatar James Hanley in reply to Brandon Berg
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        says:

        @stillwater

        Patrick’s argument that since firms can require employees to pledges against using contraception in exchange or employment

        Not that it affects your overall argument, but I doubt that’s true. Sure, a private religious college can, but as you note we’re talking about a corporation. I’m pretty sure GM can’t make that a condition of employment–although to be sure I’m no expert on employment law.

        I’m inclined to think that if HL actually can make that a requirement of employment, then they’re private and religious enough to get an exemption from the mandate. And if they’re not private and religious enough to get an exemption from the mandate, I doubt they could legally impose such a requirement on their employees.Report

      • Avatar zic in reply to Brandon Berg
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        says:

        I agree with @jm3z-aitch on the employee pledge; this would be discriminatory hiring practice, and not that far removed from the day when mill girls were locked in their dormitories at night.

        HL has a free-speech right to articulate their values to employees under the 1st. But those same employees have also a right to regard or disregard those values, outside of the direct work-related performance, based on their own beliefs.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        That’s a good point. As a matter of argument, and potentially of law, it cuts both ways. But to that point, what would be the substantive difference in justification or kind between imposing an anti-contraception loyalty pledge on employees for religious reasons as opposed to imposing a specific type of compensation package on employees for religious reasons given that each of them, according to current law, would require a special dispensation from gummint?

        Maybe the answer to that question will help clarify some of issues I’m missing here.

        ALso, the least restrictive means test applies to a particular law only if it in fact imposes a burden. I’m still not seeing where a burden is imposed here. I mean, I understand the Green’s complaint that the law either requires them to violate their religious conscious or pay exorbitant penalties or refrain from providing insurance which they believe is their right, and that seems like a compelling argument. Nevertheless, I’m not at all convinced that corporations can have sincere religious beliefs (per Burt’s argument) (nor that the religious convictions of share holders/owners can “pass thru” the corporate veil), nor that paying the penalty constitutes a unique interesting burden in and of itself since that’s the purpose of a penalty, nor that their desire to provide insurance trumps a compelling interest by the state to ensure that health insurance packages conform to certain standards.

        I mean, to repeat, I get that the Green’s don’t wanna conform to the current requirements, but I’m not really seeing the specific grounds upon which that claim rests. (Except insofar as the answer to the above question might reveal it.)Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        zic,

        HL has a free-speech right to articulate their values to employees under the 1st.

        THey also have a free-exercise protection under the first.Report

      • Avatar James Hanley in reply to Brandon Berg
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        says:

        what would be the substantive difference in justification or kind between imposing an anti-contraception loyalty pledge on employees for religious reasons as opposed to imposing a specific type of compensation package on employees for religious reasons

        The pledge would mean the employee was forbidden from going out and spending her own money on it, or accepting it from the gov’t if it decided to make it directly available.

        The limited compensation package leaves the employee free to spend her own money on it or accept it from the gov’t if it made it directly available.

        As to the question of the burden on the Greens, I was not persuaded by Burt’s argument. But then I was not persuaded by Mark’s (?) counter-argument, either. I get Burt’s argument, so I get where you’re coming from on that point, and I don’t know that I disagree, so I’m not going to critique it. I just also don’t know if I agree, so I’m not going to work from that position. Confusing, eh?Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        And follow up a bit … which is why I was curious during the OTSC posts about arguments based on distinguishing between the full generality of speech protections accorded by the first and the limited scope of free exercise protections. For example, if we treat the free exercise protections as applying with the same generality as speech protections, then it seems to me the government has a really huge burden to meet in justifying any law that even smells like an infringement of free exercise.Report

      • Avatar Stillwater in reply to Brandon Berg
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        says:

        James,

        Yes, it’s correct to say that the two conditions effect employees differentially, but the Green’s aren’t justifying their view by appealing to the rights or freedoms of employees. (THat’s zic’s counter argument!) So the question was directed at the distinctions upon which the firm (or the Greens) would be prevented from imposing a loyalty pledge but permitted to impose a restricted compensation package on religious grounds.

        And yes, this is confusing.Report

    • Avatar Brian Murphy in reply to Burt Likko
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      says:

      Way to mansplain, Burt! Teach that over-emotional woman (“I suspect you’re frustrated…”) her place!Report

    • Avatar Barry in reply to Burt Likko
      Ignored
      says:

      “For me, the question is whether restriction of access to contraceptives is the actual intent.”

      What else is it? As I’ve pointed out, the Greens oh-so-sincere convictions don’t pose a problem when sourcing to China for cheaper goods.Report

  2. Avatar greginak
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    says:

    Excellent. Powerful.Report

  3. Avatar Mike Dwyer
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    says:

    Zic,

    First off, let me say that I agree with most of what you are talking about in this post. For example, I agree that you should not be forced to donate a kidney or bone marrow. I think an overwhelming majority of the general public would agree with that premise. And I also think that most of the general public agrees that women should be able to control whether or not they get pregnant. Once the woman is pregnant? Well that is where things get much more complicated.

    I look at the question very simply: If a fetus is a life then the public has just as much interest in protecting that life as they would a newborn. If the fetus is a collection of cells, similar to a tumor, then the woman controls its fate just like she would her kidney or bone marrow. What people have been fighting about for the last 40+ years is when life begins. I don’t want to debate that issue here, but I do think it is important to recognize that a pregnancy is a unique health event that IMO sets it far above any other medical ethics debate.Report

    • Avatar zic in reply to Mike Dwyer
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      says:

      I actually agree with this, though our boundaries probably aren’t nearly in the same places. There’s some point in a pregnancy when the child’s bodily integrity activates, too.

      I would not put that at contraception — that’s like a seed, and a seed will not grow until planted. I would also not put it at implantation, for though the seed has sprouted, it does not have enough development to sustain itself outside her body — so her bodily integrity still takes precedence. Viability or the ancient measure of quickening feel better to me, though her health/life should still be protected; we all have the right to defend ourselves and our bodily integrity.Report

    • Avatar Michael Cain in reply to Mike Dwyer
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      says:

      If a fetus is a life then the public has just as much interest in protecting that life as they would a newborn.

      If that interest extends as far as authority, particularly to deny the woman certain freedoms of action, then it seems to me that the public has a corresponding set of responsibilities as well. The responsibility to ensure that the woman and fetus receive appropriate health care. The responsibility to ensure that the woman gets her job back, probably with full credit for time spent in the service of the public, after the pregnancy. The responsibility to ensure that the woman can afford to take her job back (yeah, free day care). The responsibility to ensure that if the child is not wanted, it will be cared for adequately (and boy, that’s a loaded word) after birth. The responsibility to compensate the woman for taking the health risks that come with pregnancy.

      The attitude that really raises my ire is that of too many state legislators who want to say, basically, “Too bad you’re pregnant. Abortion is not an option. By the way, we’re also going to screw you financially for the rest of your life.”Report

  4. Avatar dand
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    says:

    Since you believe in bodily integrity I assume you oppose transfat and big-gulp bans. am i correct?Report

    • Avatar zic in reply to dand
      Ignored
      says:

      And this has what to do with this topic, other then a distraction?

      Yes, I oppose trans fat and big gulp bans. But I also believe the externalities of those poisons should be priced into the cost of the products, and that’s not the case.Report

      • Avatar dand in reply to zic
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        says:

        mu point is that most feminists are using the “government should keep it’s hands off my body” rhetoric dishonestly”: if they really believed it they wouldn’t endorse anyone who supported transfat bans or other nanny state laws. when people and groups use arguments dishonestly i like to call them out on it.Report

      • Avatar Tod Kelly in reply to zic
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        says:

        Huh? I’m not sure I follow that logic.

        I’m against leaded fuel being sold because of what it does to everyone’s health. I’m also for fluoridated water.

        Does that mean I relinquish my right to choose whether or not to undergo exploratory surgery if my PSA scores are elevated?Report

      • Avatar Stillwater in reply to zic
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        says:

        Well, a feminist (as you’re using the word) is thinking about and viewing issues pretty much from the perspective of women, and making judgments about policies and actions exclusively in terms of how they effect women, so when they tell government to keep its hands off their bodies, it seems like a real stretch to conclude that consistency requires them to argue against soda bans.Report

      • Avatar dand in reply to zic
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        says:

        the way they make the argument makes at seem as though the first principle is that the the government shouldn’t tell people what to do with their bodies and thier opposition to abortion laws stems from that. if you argue that the government has has no right to tell people what to do with their bodies then you should apply that logic to every policy, if you think that transfat bans are ok but don’t want the government to ban abortion then you should say that without bringing up the broader principle.Report

      • Avatar Tod Kelly in reply to zic
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        says:

        @dand – I”m pretty sure if your doctor advised you to eat more transfats, no feminists would be arguing that you should be forbidden to do so.Report

    • Avatar greginak in reply to dand
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      says:

      Well i’d say banning Trans fats in foods is fine but i have no problem with people buying transfats as a separate ingredient if they want to put it in their own home cooking.Report

  5. Avatar Roger
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    says:

    Sorry, but I am not following, Zic.

    I applaud your defense of the sanctity of bodily integrity. I do not follow how this relates to requiring an employer to offer contraceptive care.

    Indeed, to the extent that a mandate threatens coercive action against the party NOT supplying contraceptive care against its will, doesn’t your argument backfire?

    That said. I have not followed the details of the case on these pages or anywhere else, so I am probably missing something.Report

    • Avatar zic in reply to Roger
      Ignored
      says:

      Yes you are, @roger

      ACA did not require contraceptives, it required offering basic preventive care that women had been denied. The data supporting the lack of contraceptive care as a basic need for women’s health care, and that they often did not receive that care through their insurance is overwhelming. And this goes exactly to the point of women’s bodily integrity and ability to fully participate in culture.

      The Greens do not have to offer insurance, they are on record as saying the choose to because it helps attract employees. It’s a business decision; and there is little doubt that paying the penalty and not offering insurance would be cheaper than paying for employee insurance. So the benefit they receive is better workers.

      That they feel they have some religious right to determine what’s not included in that insurance is the problem here — they assert their religious conscience as being of greater concern then their female employee’s bodily integrity. I have repeated said I feel this is a 1st amendment violation, because it shifts the burden of their beliefs onto their employees.

      The Greens also have other exit rights: they can sell their business. They can donate it to their church with strings that they get to continue acting as directors. They can take the company public. They can simply liquidate it. They have a lot of options.

      But health care transactions are a set system in this country; you proffer your insurance card and pay whatever co-pay is deemed necessary. Since that is the system we have (and I’d wish for a different, single-payer system, personally), they want to burden their employees outside of it in some way; shifting their conscience onto employees.Report

      • Avatar Herb in reply to zic
        Ignored
        says:

        Well said, Zic.

        I have to say, it’s intensely strange to hear someone “applaud your defense of the sanctity of bodily integrity” and then, in the very next sentence, imply that it’s subject to another party’s will.Report

      • Avatar Roger in reply to zic
        Ignored
        says:

        The logic still does not register.

        There is nothing keeping female or male employees from buying their own contraceptives. Forcing another party to pay for it against their wishes effectively violates the sanctity of their bodily integrity (the regulation is backed by force, meaning you are suggesting forcing a person to offer insurance and willing to use violence to their body to realize it).

        I can certainly see a regulation which says “you cannot consider health care without contraceptives to be tax deductible.” Then let HL and the employees decide. Anything else seems inconsistent, to say the least.Report

      • Avatar J@m3z Aitch in reply to zic
        Ignored
        says:

        The Greens do not have to offer insurance, they are on record as saying the choose to because it helps attract employees. It’s a business decision; and there is little doubt that paying the penalty and not offering insurance would be cheaper than paying for employee insurance. So the benefit they receive is better workers.

        That they feel they have some religious right to determine what’s not included in that insurance is the problem here — they assert their religious conscience as being of greater concern then their female employee’s bodily integrity.

        Respectfully, I don’t think the second paragraph follows from the first. If they see offering insurance as a business decision, then it makes sense that they would decide how much and what kind of insurance they want to offer. The idea that deciding it’s good business to offer some insurance means they must offer some specific set or they are violating their employee’s bodily integrity just doesn’t logically connect. After all, they could refuse to offer insurance completely–then they would be providing no access to reproductive health care instead of some access to reproductive health care…but somehow that comes out as less violative of bodily integrity.

        I suppose that argument is made because if they offered no insurance their female employees could buy insurance on the exchanges. But that’s a perverse effect of the law. It’s not an outcome Hobby Lobby is trying to make happen.

        What has a lot of us stuck, it appears, is the idea that “not providing contraceptive care (but being comfortable with women getting it through other means)” = “trying to control women’s bodies.” You can repeat over and over that we’re only stuck on that because of male privilege, but truth be told that’s not an argument that’s going to help us understand the logic you see in the argument.Report

      • Avatar zic in reply to zic
        Ignored
        says:

        @jm3z-aitch and why do they think they should not offer these insurance benefits?

        Because they violate their religious beliefs.

        And why do the benefits violate their religious beliefs?

        Because they think life begins at conception, and the morning after pill or the IUD would cause an abortion.

        And this belief is, in itself, a presumption that the fertilized egg has rights to bodily integrity the mother lacks.

        The discussion is premised on the notion that women, once their lady parts come into play, lose bodily integrity.Report

      • Avatar J@m3z Aitch in reply to zic
        Ignored
        says:

        zic,

        I’m not sure what that amounts to. They’re not saying they’re going to fire employees who get abortions or use these alleged abortifacients, and they’re not in court arguing for a law against the use of them. They just don’t want to be the providers of them. So as a practical matter, they’re not trying to control your body. Not helping a person do X is not the same as trying to stop a person from doing X.

        Or is your point that they’re not entitled to hold, or argue for, their beliefs because holding those beliefs is an attack on your bodily integrity?Report

      • Avatar Roger in reply to zic
        Ignored
        says:

        Herb,

        “I have to say, it’s intensely strange to hear someone “applaud your defense of the sanctity of bodily integrity” and then, in the very next sentence, imply that it’s subject to another party’s will.”

        One of us is being consistent with our use of “sanctity of bodily integrity” . One less so.

        And as stated above, I am fine with defining the tax deduction as requiring the inclusion of contraceptives. No contraceptive, no tax write off. Let HB and the employees choose.

        Bodily sanctity and freedom.Report

      • Avatar Mike Schilling in reply to zic
        Ignored
        says:

        I can certainly see a regulation which says “you cannot consider health care without contraceptives to be tax deductible.”

        What Roger said makes sense to me too. An employer can offer whatever mix of coverage they like, but unless it meets certain specific requirements, it doesn’t earn the benefits or avoid the penalties that a qualified plan would, and full access to contraception is one of those requirements.Report

      • Avatar Patrick in reply to zic
        Ignored
        says:

        @roger

        There is nothing keeping female or male employees from buying their own contraceptives.

        But this is zic’s point, there is data showing that there is in fact something keeping people from accessing contraception.

        She’s only brought it up a dozen times or so on the various threads. She’s pointed specifically at the report that she believes buttresses up this point.

        Absence of this access is regarded as a women’s health issue. Provisioning of this access is considered part of basic medical care – by her argument.

        Saying, “Well, they can get it some other way” sort of ignores the fact that there is data suggesting that they can’t get it some other way.Report

      • Avatar Pierre Corneille in reply to zic
        Ignored
        says:

        @jm3z-aitch

        They’re not saying they’re going to fire employees who get abortions or use these alleged abortifacients, and they’re not in court arguing for a law against the use of them. They just don’t want to be the providers of them. So as a practical matter, they’re not trying to control your body. Not helping a person do X is not the same as trying to stop a person from doing X.

        I think I see the issue very differently from the way @zic does and I probably sign on to most of your own argument, but I think the bolded piece of what I quoted above could be switched around a bit and offer a way to see some common ground between Zic’s point and your (and my) own.

        We could say, for example, that

        as a theoretical/legal matter, they’re not trying to control your body. Not helping a person do X is not the same as trying to stop a person from doing X. But the practical effectof their argument succeeding would/might make accessing contraceptives more difficult for HL’s employees and for other employees whose employers have the same objection to the mandate as the Greens do.

        Report

      • Avatar Roger in reply to zic
        Ignored
        says:

        If Mike and I agree on anything there is some kind of cosmic law that we must be right.

        “Saying, “Well, they can get it some other way” sort of ignores the fact that there is data suggesting that they can’t get it some other way.”

        Sorry Patrick if I am not keeping up with Zic’s argument. I have not read any of the other posts. However it was not an important part of my argument.

        My argument is that a plea for bodily sanctity for a favored party by threatening violations of bodily sanctity for less favorable parties is a really bad argument .If carried out with any consistency, it would lead to really bad outcomes.

        That said, what is the source of this non-government cartel keeping people away from contraception?

        Back to the main argument… Saying an employer is responsible for providing contraceptive care is pretty much unfathomable to me. It is like someone saying that people named Zic and Creon should be responsible for supplying contraception for everyone. WTF? Exactly.

        Like I said above, if she wants to argue that tax deductibility requires the inclusion of contraception, then I am fine with the argument. I don’t think this is her argument, though I may be wrong.Report

      • Avatar Don Zeko in reply to zic
        Ignored
        says:

        But Roger, the way you’re defining bodily integrity, essentially any use of state power counts as a “violation of bodily integrity,” as if you keep on refusing to do what the state demands with regard to taxes and regulations and so forth long enough, they’ll probably throw you in jail. If this right is to mean anything more than a broad right against being the target of coercion, it needs to distinguish between a law that, for example, requires a pregnant woman to carry a baby to term or requires that a healthy person donate a kidney to another, and a law that requires someone to pay higher taxes or conduct their business in a specific way. All three are coercion, but the first two are a much more direct and intimate intrusion upon the body, which I think is both a better fit for the language of “bodily integrity” and what Zic was talking about in the initial post.Report

      • Avatar Roger in reply to zic
        Ignored
        says:

        Good comment, Don.

        My answer is that I am not starting a logical argument based upon the sanctity of bodily integrity to require another party to supply a readily available service to another as a threat to the other party’s bodily integrity.

        The argument is self negating.

        The same logic could be used to justify kidney theft…. Bodily sanctity is sacred. People without kidneys will die. Kidneys are scarce, due in part to a patriarchy of the kidney endowed. Employers have kidneys. We should take their kidneys. (Come to think of it Shazbot pretty much made this argument last year).

        I can justify my defense of fair taxation and regulation elsewhere. It would take time though and would be a distraction on this thread.

        That said. I am fine with HL NOT getting a tax exemption, which accomplishes the social objective (eliminates any discriminatory objections, incentivizes contraceptive care and leaves choice with all parties) without the logical gymnastics.Report

      • Avatar Patrick in reply to zic
        Ignored
        says:

        Saying an employer is responsible for providing contraceptive care is pretty much unfathomable to me.

        Well, the employer is responsible for doing one of two things: paying the fine or providing the insurance. HL is arguing that they should be responsible for not the first thing and that they are responsible for the second thing (seriously, that’s part of their argument), but that they disagree with how the second thing is defined.

        My argument is that a plea for bodily sanctity for a favored party by threatening violations of bodily sanctity for less favorable parties is a really bad argument .If carried out with any consistency, it would lead to really bad outcomes.

        I would agree with that, but I don’t think that’s the argument she’s making.Report

  6. Avatar Herb
    Ignored
    says:

    But I contine to feel a lone voice for what I consider to be the most important consideration: my right to bodily integrity.”

    I understand why you feel this way, Zic. If it’s any comfort, you’re not the lone voice on this in most rooms.Report

  7. Avatar Brandon Berg
    Ignored
    says:

    Nobody here is questioning your right to bodily integrity. We’re questioning your right to compel someone else to provide you with medication. To conflate these two things after the distinction has been explained over and over is dishonest, and it’s wearing thin.Report

    • Avatar zic in reply to Brandon Berg
      Ignored
      says:

      Your male privilege wore thin a long, long, long time ago.

      Health insurance is part of wages, it is a regulated market, and the transactions in health care are between the patient, the provider, and the insurer. Not the employer.Report

      • Avatar Pinky in reply to zic
        Ignored
        says:

        Zic, ad hominem means “against the man”, and that’s literally what you’re doing here. The fact that Brandon is a man doesn’t affect the merit of his argument. You did the same thing upthread.

        Also, while I agree that health care decisions shouldn’t involve the employer, you can’t say that and argue that health insurance is part of wages. I’d be fine with health insurance being separate from wages, but we’re moving in the opposite direction.Report

      • Avatar ScarletNumbers in reply to zic
        Ignored
        says:

        Check your privilege. Check your privilege.Report

    • Avatar Mike Schilling in reply to Brandon Berg
      Ignored
      says:

      I know you disapprove of PPACA, but that ship has sailed. Given the insurance mandate, denying women coverage that is essential to their health while fully covering men is discrimination, pure and simple. Denying it on the basis that what happens inside a woman’s body is her employer’s business is, in addition, offensive as hell.Report

  8. Avatar KenB
    Ignored
    says:

    I didn’t read all the hundreds of comments on this issue, so apologies if someone already brought this up, but it seems to me that if Hobby Lobby has an explicit conservative Christian mission statement, there’s a decent chance that most of its employees have a similar religious persuasion. So they’re probably no more inclined to use the medications being objected to anymore than HL is inclined to provide them.

    So if you go with the assumption that the cost of employer-supplied health benefits merely substitutes for salary, the effect of the contraceptive mandate is really that the government is forcing conservative women to pay for objectionable treatments that they’ll never use. In this case, HL is actually doing its female employees a favor by trying to get out of it.Report

    • Avatar zic in reply to KenB
      Ignored
      says:

      HL has over 16,000 FT employees; so it’s likely that their religious beliefs are all over the chart. On Ravelry (the social networking site for people who knit and crochet) the attraction to the company is that they supply the needed materials; some customers/employers value the religious affiliation, but that’s not common at all. And hiring based on religious belief is discriminatory and violation of law.Report

    • Avatar J@m3z Aitch in reply to KenB
      Ignored
      says:

      KenB,

      I’d suspect people don’t work there because they necessarily share HL’s religious beliefs. But I bet a lot work there because they love having one predictable whole day off each week, which in retail is just about rarer than unicorns.Report

      • Avatar kenB in reply to J@m3z Aitch
        Ignored
        says:

        @zic @jm3z-aitch Fair enough, it was just a thought.

        But I do think it’s worth bearing in mind (in general, not just for HL) that the mandate means that women with conscientious objections to these particular contraceptive methods are being forced to pay for the coverage anyway (directly through the employee contribution and/or indirectly due to wage substitution).Report

      • Avatar Chris in reply to J@m3z Aitch
        Ignored
        says:

        Plus their starting pay is higher than most retailers.

        But offering a different level of coverage based on gender seems pretty shitty, and that is essentially what they want to do. Regardless of the legal issues, it’s pretty shitty.Report

      • Avatar zic in reply to J@m3z Aitch
        Ignored
        says:

        @kenb isn’t that how insurance works, though? My insurance premiums will help pay to treat my husband’s prostate problems, should he ever have any. I certainly won’t have any, I don’t have a prostate.Report

    • Avatar Creon Critic in reply to KenB
      Ignored
      says:

      Doing its female employees a favor? An employer carving holes in preventive health services (making them less affordable) and conspicuously inserting themselves in the patient-provider relationship is a dubious kind of favor. What’s more, the usefulness of contraceptives extends beyond preventing pregnancy. Conservative women may want to consider their options, without the conscience of their employer entering the picture, when reviewing their options for treating, say for instance, uterine fibroids.

      From the American College of Obstetricians and Gynecologists’ amicus brief,

      Contraception has other scientifically recognized health benefits for many women. Hormonal birth control, in addition to preventing unintended pregnancies, helps address several menstrual disorders, helps prevent menstrual migraines, treats pelvic pain from endometriosis, and treats bleeding from uterine fibroids. Ronald Burkman et al., Safety Concerns and Health Benefits Associated With Oral Contraception, 190 Am. J. Of Obstet. & Gynecol. S5, S5-S22 (2004). Oral contraceptives have been shown to have long-term benefits in reducing a woman’s risk of developing endometrial and ovarian cancer, protecting against pelvic inflammatory disease and certain benign breast disease and short-term benefits in protecting against colorectal cancer. Id. See also Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps 107 (2011) (“IOM Report”), ovarian cancer, protecting against pelvic inflammatory disease and certain benign breast disease and short-term benefits in protecting against colorectal cancer. Id. See also Inst. of Medicine, Clinical Preventive Services for Women: Closing the Gaps 107 (2011) (“IOM Report”), http://www.iom.edu/reports/2011/clinical-preventive-services-for-women-closing-the-gaps.aspx.

      Report

      • Avatar kenB in reply to Creon Critic
        Ignored
        says:

        An employer … conspicuously inserting themselves in the patient-provider relationship is a dubious kind of favor.

        Dude, it’s the government that’s doing that. The main reason employers are involved in the first place is the tax advantage for employer-supplied benefits, and now the government is mandating what has to be included in a policy to be able to avoid the penalty.

        And yes, if a woman has no wish to use a given service and the company can get her out of paying for it, then that would be doing that woman a favor. You seem to have a hard time understanding the concept that other people might make different choices than you would.Report

      • Avatar Creon Critic in reply to Creon Critic
        Ignored
        says:

        Dude, it’s the government that’s doing that.

        I draw a distinction between the government guaranteeing affordable access to an array of – necessary!* – health care options and an employer putting up barriers to those health care options. Putting up obstacles is not a favor.

        My ideal solution would be single payer, perhaps even UK NHS-style health care. But we have the employer-tied health care system that we have in the US at the moment, and Obamacare is what passed Congress. Given that context, there’s a big difference between government acting to expand women’s options and employers acting to constrict women’s options.

        * According to the Institute of Medicine and various provider associations.Report

      • Avatar Jim Heffman in reply to Creon Critic
        Ignored
        says:

        “You seem to have a hard time understanding the concept that other people might make different choices than you would.”

        But those people are making bad wrong stupid dumb choices! Obviously if they weren’t a bunch of racist bigot anti-woman christ-cultists they would agree with me!Report

  9. Avatar Kazzy
    Ignored
    says:

    Excellent post, zic. This dovetails with someone Veronica Dire was discussing on another thread recently, namely what is and isn’t considered up for debate. If we start from the assumption that something is inherently up for debate and ignore that this isn’t the only or necessarily right starting point, we remain blind to institutional and systemic biases.Report

    • Avatar J@m3z Aitch in reply to Kazzy
      Ignored
      says:

      @kazzy

      But narrowing down this issue to bodily integrity and saying “it’s not up for debate” misses other aspects of the issue.

      “Which of your needs am I required to provide to you” is always up for debate, and it is an inextricable part of this issue. Saying “it’s about my body” should have power, but it should not be a trump that shuts up debate on what party X must provide to party Y.

      If it’s about trying to pass laws that prevent a person from making her own choices about her body, then “it’s my body” comes a lot closer to being a trump that shuts off debate. But that’s a lot simpler, because nobody else is being required to provide anything.Report

      • Avatar Kazzy in reply to J@m3z Aitch
        Ignored
        says:

        @jm3z-aitch

        To be clear, I’m not saying that @zic ‘s framing is necessarily right. Only that we should consider there are multiple competing ways of framing the conversation and that it unfair to presume any singular one is the one which must be starting point.

        Zic seems to have at least accepted the predominant framing exists, though she rejects it as correct. Others here (not you) are not offering her the same, rejecting that any alternate framing is even worthy of consideration.Report

      • Avatar zic in reply to J@m3z Aitch
        Ignored
        says:

        James, the mandate is that health insurance include contraception as preventive care.

        In over half the states in this country, pre-ACA, it was not required. Maternal care was not required. Screening for gestational diabetes was not required. So the most expensive services that most women face were legally excluded from health insurance. The norm was the kinds of care men require, and the ladystuff was extra or pay your own way. I’d say that this was systematic gender discrimination.

        Now you may think that this is okay; that a pap smear shouldn’t be something insurance should pay for because you don’t need one.

        But it is not okay; it puts women into the position of being subjugated by their biology. So we could as easily hold this argument on the level of should HL opt out of providing insurance, since they don’t want to provide adequate insurance for their labor force, which is about 2/3 female. Instead, we keep spinning around in circles about employer’s having the right to decide the types of benefits they want to provide. Do they have the right to decide the unemployment insurance they provide? The workmen’s comp insurance? These are set by the state, as far as I know. Are there legal insurance requirements placed on them by lenders when they take out a building loan for construction?

        Your insistence on placing this in the realm of HL’s rights is the problem I’m trying to highlight. Either they have the right to provide insurance or not; they don’t have the right to dictate moral decisions for employee’s health care through that insurance. And insurance is the vehicle we use to fund health-care transactions.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        @kazzy

        Well, I think they’re critiquing her framing’s foundational basis. The foundational argument that “my need = your duty” is one that a lot of us here have consistently argued against. Our objections have a lot less to do with controlling women’s bodies–I, at least, am strongly supportive off abortion rights, hateful toward female genital mutilation, etc.–than with that underlying “my need = your duty” concept.

        If you’re starving, it’s wrong for me to block you from accessing food, and I’m a good guy to give you food, but I owe you no duty to feed you.

        If you’re bleeding to death, it’s wrong for me to kick the bandages out of your grasp, and admirable for me to to tend your wounds myself, but I owe you no duty to provide care.

        If contraceptive care is important to your health, it’s wrong for me to try to prevent you from getting it, and admirable for me to provide it, but I owe you no duty to provide it.

        That’s the foundational position I think is being argued. And from that position, any argument that “X has a duty because Y has needs” is an illegitimate claim.Report

      • Avatar Kazzy in reply to J@m3z Aitch
        Ignored
        says:

        I hear that, @jm3z-aitch . And want to make clear that I don’t think alternate frames necessarily require any anti-female animus.

        But, let’s go a bit deeper. Do you think it might be easier for some of us to take a position opposed to “my need = your duty”? In my experience, libertarianism and similar ideologies seem to be predominantly white and male. There are a host of factors that contribute to that, many of which are not insidious in any way. But it does make me wonder if it is a more palatable ideology to those groups and, if so, why and what that means.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        @zic,

        I find the mandate argument wholly unpersuasive. Government cannot statutorily impose a duty on person A because of person B’s needs.

        And the idea that businesses have a right to choose whether to provide insurance or not, but no right to decide what kind of insurance, to be bizarre. You can provide all, or you can provide nothing, but you cannot provide some, is a concept whose logic I cannot parse.

        Consider this in the context of any other non-cash benefit employers provide. What if we passed a mandate that employers could give employees all national holidays off, or no national holidays off, but not some national holidays? Or said employers could provide a house, or no house, but not an apartment?

        I get that those are not wholly like reproductive health care, but there is a commonality there in the weirdness of the all or nothing rule.

        And instead of just pinning the blame all on the Greens, we could be pinning some of the blame on the absolute frickin’ stupidity of government saying we’ll provide your whole health insurance, or none of your health insurance, but we won’t provide some of your health insurance. Seems to me that the government’s rules have created this particular problem, so really they ought to be the ones we’re mad at.Report

      • Avatar Kazzy in reply to J@m3z Aitch
        Ignored
        says:

        “Government cannot statutorily impose a duty on person A because of person B’s needs.”

        It does all the time.

        I oppose the mandate. I think we need to decouple insurance and employment, not further entrench it. The mandate does the latter. That said, given the benefits that the government provides to employers to provide compensation via insurance versus compensation via wages, I don’t think it unreasonable for them to impose basic standards for how that compensation is provided.Report

      • Avatar Stillwater in reply to J@m3z Aitch
        Ignored
        says:

        I find the mandate argument wholly unpersuasive. Government cannot statutorily impose a duty on person A because of person B’s needs.

        Welfare? UI benies?

        Maybe you meant to say “desires” at the end?

        Here’s an argument that strikes me as very persuasive: given that reproductive health is part of general bodily health coupled with the fact that certain groups have a (seemingly) vested interest in denying women access to treatments and procedures relevant to their reproductive health, government is justified in requiring that health insurance companies include contraception coverage as part of basic health insurance.

        That argument might not fly very far, but how far does it have to fly to be more than “wholly unpersuasive”?Report

      • Avatar Stillwater in reply to J@m3z Aitch
        Ignored
        says:

        ALso, what kazzy said. If health insurance were decoupled from employers then I might have a different view of this. Maybe.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        @kazzy

        Let’s not make too much of my privilege. My life has not been all ice cream and pony parties.

        I was jumped one time in the ghetto, and had a group of guys standing around me punching and kicking me. I had a severe concussion, and when they left I couldn’t get the brakes on my bike unstuck so that I could ride off. An old guy came out and helped me. God bless him for being a good Samaritan. Did he owe me that duty? No.

        I was homeless for a couple of weeks once. Friends let me stay on their couches until I got my feet under me again. Did anybody owe me that? No. I was prepared to sleep in the park–dangerous as that is–if I couldn’t find a place to stay.

        I injured my knee on a solo hike one time, struggled back to the road, and hitched a ride the several miles to my car (that I could not, simply could not, have walked). A good dozen or more cars passed me by before one stopped. Were they wrong to do so, since I had a need? No.

        Now I recognize that I am privileged in that I had friends I could stay with, and had a job that allowed me to afford a place to stay once I got a few more paychecks. And that I might have had an easier time hitching a ride when I was injured than a black guy my age might have. But nobody owed me a duty.

        In all truth, I’m a little sensitive to this issue right now because my wife and I have a manufactured home we haven’t been able to sell due to the recession, and our tenant–who we’re not evicting–has repeatedly fallen behind on his rent. He doesn’t make enough money to keep up, and doesn’t want his wife to work so that she can stay home with the two kids. I don’t begrudge him his preferences at all, and I’m sure it’s great for his kids, but de facto he’s claiming that we ought to be the ones paying his rent so his wife doesn’t have to work. Given that my wife and I spent a year rarely seeing each other because we worked opposite shifts so that one of us could always be with our baby daughter, I get a bit peeved when people demand to be protected from having to make painful sacrifices.

        And nobody owes us a duty to help us pay for the home we haven’t been able to sell. It’s our issue, our problem. If someone came along and offered to wipe out the debt for us, I’d kiss their feet. But nobody’s a bad person for not doing so.Report

      • Avatar Kazzy in reply to J@m3z Aitch
        Ignored
        says:

        @jm3z-aitch

        I’m talking about this on a more systemic and institutional level. When our health care needs (e.g., prostate exams) are never the ones being voted on or debated and are just presumed to be available, it is easier for us to take such a position.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        @kazzy
        “Government cannot statutorily impose a duty on person A because of person B’s needs.”

        It does all the time.

        My bad for not being clearer. I meant it cannot create an unquestionable–unarguable–moral duty. It can create a legal duty, yes, but it remains susceptible to debate, not off-limits.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
        Ignored
        says:

        @kazzy

        Yeah, it’s easier. But that doesn’t really answer any of the substantive questions, does it?Report

      • Avatar Kazzy in reply to J@m3z Aitch
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        says:

        @jm3z-aitch

        It doesn’t. But I don’t think you are necessarily the audience for @zic ‘s piece here (though I will let her make that call). I will say that you are not the audience for my own comments. You are willing to consider alternative ways of framing, even if you don’t ultimately agree with them (probably in part because you often employ an alternative frame than the majority).

        I won’t pretend to have the answers. It might be that zic’s is not the most appropriate frame. But we can’t and shouldn’t dismiss it out of hand. You are not doing that. You seem to be engaging with it and pushing back against it in part or in whole.

        As a general rule, when people provide us a new lens through which to view something — especially a lens we might not be able to see through on our own — we should respond with open-mindedness.Report

      • Avatar J@m3z Aitch in reply to J@m3z Aitch
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        says:

        Maybe a better way to rephrase my comment about duty is this.

        Government may be able to statutorily require businesses to include particular types of coverage in any insurance they offer, but they cannot thereby make that provision a fundamental right for anyone. I’m sort of riffing off the post’s picture, with it’s quote from Maddow. It’s true that we shouldn’t be voting on fundamental rights, but having someone else provide something for us is not a fundamental right, so we can legitimately vote on it.

        Saying we can does not imply we should, and it implies nothing about what the outcome should be. It’s just the disconnect in the claim that nobody should get to vote on, or debate, a right to have someone else provide something, that I am critiquing.Report

    • Avatar zic in reply to Kazzy
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      says:

      Thank you, Kazzy. I’m glad you understood the underlying premise; I fear I didn’t convey it well.

      I haven’t seen Veronica here lately; I hope she’s well. She’s here in spirit.Report

      • Avatar Kazzy in reply to zic
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        says:

        I think this is one of those things that is really hard for those of us on the privileged side of the coin to really understand, because there is no obvious analogue to which we can point and say, “Oh… it’s like that.” The best we can usually do is a hypothetical. So I will attempt to offer one.

        Imagine an alternate reality wherein gender roles and expectations are reversed. And imagine that in this world, the female power players seek to limit male access to prostate exams, because of a centuries old religious belief that any form of anal penetration is evil. This belief is borne out of a fear on behalf of the dominant women that female penetration will endanger in some way vaginal penetration, something they have no interest in ceding control over. So, prostate exams — which a more forward thinking government and populace see as necessary for male health — are being challenged by traditional women, arguing that their sincere beliefs are being violated and that the integrity of the male body and importance of its unique health needs are not absolute.

        Does that not sound absolutely absurd?Report

      • Avatar zic in reply to zic
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        says:

        I’ve spent a lot of time trying to come up with an analogy, too. Yours is okay, but it sort of misses that pregnancy is 9 months, it takes 2 years to recover, and results in a lifetime commitment that is time intensive, expensive, and limits other opportunities or a heartbreaking lifetime separation via adoption.

        So no, it doesn’t really work.Report

      • Avatar zic in reply to zic
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        says:

        Kazzy, in ancient times, there was some considered balance with military service; time taken from your life and risking your life.

        We’ve come very far with maternal care; it’s easy to forget how many women died in childbirth. And we’ve lost sight of the fact that women still do die from complications of pregnancy and child birth, though it’s rare now. There’s a reason shifts in that standard are part of how we measure how developed a nation has become.Report

      • Avatar Kazzy in reply to zic
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        says:

        Good points, @zic . Try as we might, there are experiences women have that men simply can’t and won’t ever understand. Many of us refuse to accept that.Report

      • Avatar Tod Kelly in reply to zic
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        says:

        @zic “I’ve spent a lot of time trying to come up with an analogy, too.”

        @kazzy “Try as we might, there are experiences women have that men simply can’t and won’t ever understand.”

        I don’t think that’s necessarily so.

        I used the example of PSA tests above in a reply to dand. PSA testing, and what we do with those scores, is an inherently male healthcare issue. Whether I choose to get a test, and what I choose to do with those results once I get them, is no different a relevant healthcare issue than what zic or Maribou choose to do about contraception after consulting with their doctors.

        The difference is merely social and political, because there isn’t anyone out there that’s been historically trying to keep me from getting PSA screened or mapping out a PSA plan with my doctor because of how they personally interpret the Bible. Indeed, when you think about how they might do so it sounds ludicrous.

        But at the end of the day, both are my PSA screenings and zinc’s contraception issues are essentially the same: each is a person healthcare choice that should be left to each person, and it’s not our employer’s business to try and strip us of those options — even if they are using health insurance as an employee benefit.Report

      • Avatar Kazzy in reply to zic
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        says:

        @tod-kelly

        That might be a useful analogue, but I will never truly understand what it is like to be pregnant. That isn’t a good or bad thing… just a thing. There are also some experiences that are unique to men in such a way that women can’t truly and fully understand them. Again, not a good or bad thing… just a thing.

        Where we get into “bad thing” territory is when we forget this and assume we understand something we do not and then try to act on that presumed understanding.Report

      • Avatar zic in reply to zic
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        says:

        @tod-kelly here’s the Aquinas quote, above, again:

        There is another kind of subjection which is called economic or civil, whereby the superior makes use of his subjects for their own benefit and good; and this kind of subjection existed even before sin. For good order would have been wanting in the human family if some were not governed by others wiser than themselves. So by such a kind of subjection woman is naturally subject to man, because in man the discretion of reason predominates.

        I think it’s critical to put women’s bodily integrity into that context. Forty years does not undo the habits of a thousand years.Report

      • Avatar Tod Kelly in reply to zic
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        says:

        @zic I agree, and was in fact attempting to do so from a different angle.Report

  10. Avatar Creon Critic
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    says:

    The norm was the kinds of care men require, and the ladystuff was extra or pay your own way. I’d say that this was systematic gender discrimination.

    Systematic. Gender. Discrimination.

    Precisely. I think this is an underappreciated point. Thanks for calling attention to it both in the original post and in the comments. As for the pushback, I think it is really difficult for some people to see the water we’re swimming in. No matter the history, or the current circumstances, http://100percentmen.tumblr.com/Report

  11. Avatar J@m3z Aitch
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    says:

    I want to add, separately, that while I am critical of the post, I am happy to see zic guest posting and making the argument for her position. My critique of the argument is of the argument, not zic, and I encourage her to write more guest posts. I’m sure a strong majority of us here agree that she has a good perspective that is valuable for us to hear.Report

    • Avatar zic in reply to J@m3z Aitch
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      says:

      Thank you, @jm3z-aitch

      I do find it rather odd that you’ve been pushing a point I didn’t make — how to makes certain all women have access to contraception — but haven’t addressed the point I did make:

      Bodily integrity should be one of the first considerations we examine whenever someone’s religious freedom comes up, because it’s likely their view of freedom is control over some girl’s integrity.

      /and I don’t say that as criticism of you, but because I value your opinion and often seek out your pushback; it helps me think clearly. That’s a good thing.Report

      • Avatar J@m3z Aitch in reply to zic
        Ignored
        says:

        @zic

        Honestly, I think bodily integrity is the heart of the issue in the case of someone trying to ban women from seeking access to contraceptive care. I don’t think it’s at the heart of the issue when someone is saying they don’t want to be the ones providing the access.

        Put another way, bodily integrity imposes negative duties on others, but not positive duties.Report

      • Avatar zic in reply to zic
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        says:

        But where in the OP did I argue that?

        I argued that 1) access to contraception is crucial to women’s ability to fully participate in society and 2) that many people use religious belief as a way to control women’s bodily integrity; and should be challenged on the basis of that unenumerated right.Report

      • Avatar J@m3z Aitch in reply to zic
        Ignored
        says:

        @zic,

        It looks to me as though the argument is that the Greens’ desire not to pay for certain contraceptives is an attack on women’s bodily integrity. If I’m wrong, please forgive me, but that’s how I read it.

        If you’re talking about bodily integrity in terms of not having laws forbidding your access to contraceptives and reproductive health care in general, I’m there with you 100%.Report

  12. Avatar James K
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    says:

    A few points in reaction:

    1) I agree bodily integrity is very important, and isn’t given enough attention in policy and the law.

    2) I can’t imagine why anyone takes Aquinas’s opinions seriously any more (I’m not disputing that they do, I just don’t understand why).

    3) This is why the whole premise of the US health care system (a premise that was only further entrenched by the ACA) is flawed – that employers have any business acting as healthcare providers. It is only because of this policy-induced intermediation of health care services that the Greens are even a party to this transaction. A single-payer system wouldn’t have this problem, nor would the individual-insurance-plus-welfare model I prefer.

    4) I will continue to say this every time health insurance is discussed – insurance is for large, unpredictable expenses. It makes very little sense for contraception to be insurable. Now it may make sense for insurers to offer if it costs the insurers less than they would save from not paying on pregnancy care, but that’s a matter of economics, not human rights. If the government is to secure the bodily integrity of women, it should be doing it directly, not weaselling out by trying to make 3rd parties do it and getting all indignant when the 3rd parties are not so keen on the idea.Report

    • Avatar Michael Drew in reply to James K
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      says:

      When looking at American discussions of the American health care coverage system, it probably makes sense to just read the word “insurance” as “payment system.” What we do probably isn’t really insurance. It’s just flattened, up-front payment for routine and emergent care alike. You can say, “That’s not insurance!”, but so what? It’s the system we have. There’s every reason to evaluate it on the merits, but it doesn’t seem particularly relevant whether it matches any given definition of insurance. Lots of countries have systems that aren’t insurance. Ours is increasingly one of them… but the word remains the catch-all label for “how we pay for health care.” That’s not really important; what’s important is whether what we have is good or bad…. and whether it’s moving in a good or bad direction.

      Also, I question whether you made a sufficient argument for your assertion of a maxim of the form “If the government is to X, it should be doing it directly, not weaselling out by trying to make 3rd parties do it and getting all indignant when the 3rd parties are not so keen on the idea.” (Unless the issue is really just the getting indignant, in which case I’d say that it doesn’t seem to me that the government is getting indignant; it’s just defending and trying to make the mechanism it chose to advance this aim work.) I understand that your priors tell you that this is a true normative statement. And it might be that you ably think this is the case regarding particular government aims, such as securing bodily integrity, but not others. But my inclination is not to take regulation of the actions of third parties off the table as means for pursuing government aims.

      Aren’t some very successful health care models based exactly on the utilization of private utility-like organizations that are regulated to within an inch of their lives? (Germany, if memory serves?) I personally want that kind of thing on the table, which is not of course an argument that I want to adopt it in any given case. As a general matter, I hardly see where I should reject that out of hand. If you want me to think I should, either as general principle or a specific case, you’d have to make the argument. (That’s not an invitation to do so: if you want to, go for it. But my point is just that the truth of either the specific admonition you made nor of its general form is self-evident. As it stands, it’s just simple, unsupported normative assertion. “Things should be this way! Because!”)Report

  13. Avatar LWA
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    says:

    I reach a similar conclusion to zic, from a slightly different path.

    “Bodily integrity” covers much the same ground as “human dignity” which has a long pedigree in social justice teaching. The idea that our bodies are sacred is actually one of the founding notions of classic liberalism- its what animates the injunction against torture, for example.

    Its also what causes me to see futility in trying to discuss the issue only in terms of rights, rather than compelling interests.
    The vision of our society as outlined by the Founders, common law, and society mores, doesn’t see us as having simply a narrow set of inviolable rights, and nothing more. There is a vision that sees a larger purpose that involves a large set of rights, needs and values, all of which need to be balanced, and sometimes enlarged or reduced in relation to each other.

    Part of this large set of values includes the compelling interest of participation in society on an equal footing. This is why separate but equal cannot be. As zic points out, women who are unable to truly control their reproduction are inherently unequal citizens.

    To answer Brandon’s assertion, yes, we CAN force you to provide another with medicine.(by men with guns! Who will put you in cages!). I don’t just mean in a narrow legal sense- although compulsory things like jury duty and national service are on solid legal ground.

    But more that the common set of values- such as respecting a woman’s human dignity and participation in society- that underlies our laws is grounded in the vision of human flourishing, which can at times compel us to positive actions, even against our will.Report

  14. Avatar Road Scholar
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    says:

    I’m pretty sure this conversation, both here at O.T. and nationally, would be a lot different if the Greens were Scientologists and they were objecting to providing insurance that included coverage for mental health care.Report

    • Avatar dhex in reply to Road Scholar
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      says:

      that’d be kinda cool to watch, though.

      (this presumes any large mass of folk would rise to the defense of scientologists…which i don’t think is a 100% sure bet.)Report

    • Avatar Jim Heffman in reply to Road Scholar
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      says:

      That’s a nice ad hom but have you got anything else for us today?Report

      • Avatar Chris in reply to Jim Heffman
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        says:

        In the internet world, “ad hom” basically just means “not nice.”Report

      • Avatar Jaybird in reply to Jim Heffman
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        says:

        I have “ad hom” categorized in my head as “Instead of talking about your argument, let’s talk about *YOU*”.

        So a comment that, instead of talking about the argument, talks about how the people giving the argument would be giving a different argument if Scientologists were involved seems to fit that definition.

        And googling has not dissuaded me from this. What am I missing?Report

      • Avatar Tod Kelly in reply to Jim Heffman
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        says:

        So, on the internet, “ad hom” is essentially used as an ad hom objection?Report

      • Avatar Tod Kelly in reply to Jim Heffman
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        says:

        @jaybird But Road wasn’t asking us to dismiss the HL argument, he was making a separate but related and relevant point to shift our point of view. Is this not what you do, pretty much all the time? (To great effect, I think.)

        Calling that “ad hom” seems a stretch.Report

      • Avatar Jaybird in reply to Jim Heffman
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        says:

        I kinda think that saying “you’re using a fallacy” is talking about the argument rather than about the person. I mean, so long as you’re not saying “you’re using a fallacy and, therefore, we can’t trust anything you say, ever.”Report

      • Avatar Jaybird in reply to Jim Heffman
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        says:

        Oh, I thought he was saying that if we were talking about Scientologists that the yayreligion folks would all be coming down on them like a ton of bricks and, since they weren’t, that demonstrated something about the yayreligion folks (rather than indicated anything about a limiting principle that might kick in somewhere).Report

      • Avatar Road Scholar in reply to Jim Heffman
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        says:

        I’m not sure who you believe I’m ad homming with my comment. Regardless, I surely could have made my point more clearly, so my bad. Let me try again.

        I worry that the specifics of this case tempt many–on both sides!–to reflexively accord the arguments of both sides with more or less weight than they may actually deserve. If the first and fourteenth amendments are to mean anything, the arguments and ultimate decision must necessarily be fully generalizable.

        This case contains elements that make it difficult to generalize. A claim that abortion violates religious belief? Fine. A claim that contraception violates religious conscience? Again, fine. A claim that contraception, per se, is not objectionable but that certain forms of contraception are objectionable based solely on a religious belief that those forms are abortifacients contrary to the scientific evidence? That’s where I start looking at you sideways, particularly given the very real burdens this places on the female employees. To my mind, that last claim is directly analogous to the anti-vaxxers claim that childhood vaccinations cause autism and then attempting to put that claim outside the sphere of legal scrutiny by calling it a religious belief.Report

      • Avatar Jim Heffman in reply to Jim Heffman
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        says:

        Jaybird understands where I was going with this.Report

      • Avatar Stillwater in reply to Jim Heffman
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        says:

        Jaybird may understand what you meant, but even with all that Authoritah backing you up Road’s comment still isn’t ad hom.Report

      • Avatar Jaybird in reply to Jim Heffman
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        says:

        Well, I do think that if we’re in the whole “well, now we’re haggling” place, it’s only fair to actually understand what the limiting principles are, if any.

        To say “if the shoe was on the other foot, you’d have a different opinion!” isn’t that interesting. To say “hey, look at all of these shoes and all of these feet! Is there a method to sorting which are rightfully considered issues of conscience and which are only issues of conscience for crazy stupid people who don’t know science from shinola?” can be fascinating.

        Personally, I think that the whole “I won’t prevent you from Xing, but neither shall I pay for it” is a fair enough position for most folks’ claims to issues of conscience and I can see Scientology Insurance Inc not including “loud birth chambers” on their coverage.

        Or Muslims being opposed to Medicinal MJ.

        But I would.Report

      • Avatar Stillwater in reply to Jim Heffman
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        says:

        Well, I do think that if we’re in the whole “well, now we’re haggling”

        Dude, you’re the only one haggling.Report

      • Avatar zic in reply to Jim Heffman
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        says:

        @jaybird

        Just to be clear: there are many, many ways we can get to a point of making certain women have full, unencumbered access to the contraception and control of their reproductive lives. The contraception mandate is just the one that’s on the table.

        I am also firmly believe in religious rights. I would never insist any individual violate their beliefs. My problem with religion is when it extends from your individual rights into the sphere of each individual woman having her own rights.

        With HL and the Greens, the problem is they want to extend their beliefs to the type of insurance they offer; and they want to do it in such a way that it excludes their employees from other options given that ACA is the system we have. Could we have a better system? Sure. Give me a couple of hours, and I could suggest half a dozen to you in great detail. And not only do they want to extend their beliefs into that sphere for their employees, they want to do it in such a way that it potentially sets legal precedent about when life begins; something the right-to-life movement has been trying to legislate in their efforts to outlaw abortion. So yes, I have a huge problem with what HL is trying to do — I’ve repeatedly said I believe it a 1st amendment violation of their employees rights, under the precedent set in the Covey decision.

        But the greater point here is not ‘paying for someone else’s contraception,’ and it’s really offensive that what I’ve said gets interpreted that way. The real point here is that without contraception, women cannot fully participate. So any discussion that limits that needs to include that perspective, or we have already continued to subjugate women as they have been through history, and as they are in far too many places. An unwanted pregnancy is a violation of our body integrity; it’s seizure of your reproductive organs, and often, our lives.Report

    • Avatar Burt Likko in reply to Road Scholar
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      says:

      My answer would almost certainly be the same. An individual can believe that we house the souls of the oppressed Galactic Empire fleeing the grasp of Xenu, but a corporation cannot. Such as case might be the one that causes a court to examine whether an explicitly religious entity, whether that’s the CoS or a RCC diocese, but the yayreligion folks probably don’t want that case to be one in which CoS is a party.Report

  15. Avatar Michael Drew
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    says:

    I ultimately think it’s more important for us to consider the perspective that Zic offers here than to argue about it. I basically never take that view, as I view argument as the raison d’être o this place. But if there’s one thing that site has had a hard time with over the years, it’s consistently including enough female and minority voices.

    On the merits I think I have to come down with those who think that it’s wrong to say that the HL/contraception case is a question of bodily integrity; I think it’s instead a deep question of equality. (One which ACA address in its way, which is a way that might ultimately be too flawed to hold up given what our constitutional precedent happens to say and not say). But I’m not confirmed in that view, because my primary reaction to Zic’s statement, as I say, is to think that I need to remain cognizant of this perspective, and the extent to which my own perspective may prevent me from immediately, or even on reflection, understanding its logic. I also do acknowledge that Zic was trying to raise the bodily integrity point in a broader way, even though the stimulus for it was clearly the Hobby Lobby discussions. And I fully affirm the value of raising the point as an independent matter.

    But to me the point here is not the merits of how Zic thinks the Hobby Lobby case implicates women’s bodily integrity. The point is make us aware of a perspective on the issue that we may disagree with, but that (like the Greens’) is very real, and very sincere. Brandon Berg is utterly out of line in saying that Zic is somehow disingenuous or dishonest to keep making this point after in his view her opinion has been disposed of. This is the height of arrogance. These are Zic’s genuine views, and simply because an opposing argument has been made does not make her reiteration of them dishonest. Moreover, they are views that, given their prominence in the population, are in fact significantly underrepresented on this website. We should thank Zic for making sure we understand how a significant part of our polity views this group of issues, even if we disagree with her. Perhaps in a way it’s condescending of me to take this view, but I honestly think that is the primary value of Zic’s post here (in addition to the one James H. mentions – just how inherently valuable it is to have a an OP contribution from her, given the overall quality of her thinking. I feel on strong ground in saying that, because I rather take that to be the spirit in which Zic offers this post to us.

    If we don’t understand the power that this perspective has, then we are unlikely to fully comprehend why it is that we will probably not see a Republican win the White House more than once or twice for the next few decades. Even if we steadfastly disagree with her, we should recognize the value of this contribution. We should certainly not deny its full honestly and sincerity.Report

    • Avatar Kazzy in reply to Michael Drew
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      says:

      Awesome, @michael-drew .Report

    • Avatar Chris in reply to Michael Drew
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      says:

      The question of bodily integrity is a more fundamental one, reaching to the beliefs that have led to the Hobby Lobby case, rather than to the legal issues surrounding the case. The Green’s beliefs are, in essence, that women should have less control over if and when they reproduce. This is an issue of bodily integrity. The actual case is one of gender discrimination: because the Green’s believe that women shouldn’t have complete say over if and when they reproduce, they want to give women incomplete basic health coverage (contraceptives aren’t only for birth control purposes!!!). Like I said elsewhere in the thread, I won’t get into the legal issues, because I’m not a lawyer or Constitutional scholar, and even were I right, it would probably be for the wrong reasons. However, what they’re doing is, as I also said, pretty damn shitty. And people should be pointing that out, as I think zic does well here.Report

      • Avatar Michael Drew in reply to Chris
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        says:

        I do agree that the background cultural context for the religious beliefs that the Greens hold very much implicates bodily integrity. But I agree with some of the dissenters that the specific policy means under discussion don’t violate it in the way we typically think of when we think about government policy violating bodily integrity.

        I do see the argument that says, “The former is very much in play here and you’re admitting it, while the latter is just a habit you’ve formed about how to identify intrusions on bodily integrity that there’s every reason for you to update or break out of that.” I concede that. I just also think it’s worthwhile to point out the distinction between the way it’s implicated here and the way it’s usually thought to be (i.e., the government says, “You may not do that with your body or else X.”

        It’s also important to point out that in order to be at all realistic about where we place the value of bodily integrity on the policy value scale, at least many of us have to acknowledge that we don’t hold it be sacrosanct. (Some of us of course do – maybe Zic does.) The issue is most often really balancing reasons to limit bodily autonomy somewhat with the value of bodily autonomy itself, usually producing very circumscribed intrusions on bodily integrity. (I guess I’m thinking of integrity as a slightly more closely-held realm than autonomy here, but they’re pretty close to interchangeable I think).Report

      • Avatar zic in reply to Chris
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        says:

        @michael-drew

        Men, particularly in recent times, have government as the force that limits bodily integrity. Women, on the other hand, have government as the force that’s made access to fully participating possible; and religion has been the force that’s limited them.

        So it’s possible that the view of the source of bodily-integrity violations may be highly gendered. I don’t think the process is source-dependent; I think it happens for all sorts of reasons, and should be recognized for what it is, no matter the source.Report

      • Avatar Michael Drew in reply to Chris
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        says:

        @zic

        That’s exactly the kind of consideration that was the entire point of my initial comment. My inclination after reflection was that I have an understanding of what an intrusion on bodily integrity looks like and that there isn’t one strictly speaking in the contraception mandate issue (resistance thereto, that is – and, again, in any case there are highly important issues implicated, just maybe not that, or so was my initial inclination). But, as I said, to me the value in your comment is to make me suspend that view, and for precisely the kind of reason you give here – the notion that I don’t understand the way intrusions on bodily integrity against women have been experienced and how they have been carried out against them well enough for my assessment in this case to be definitive. And I think I am coming understand that perspective as our conversation continues.Report

    • Avatar j r in reply to Michael Drew
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      says:

      I agree to a certain extent, but I will add that zic framed the issue explicitly in the context of the contraceptive mandate and of public policy more broadly. As a critique of the reactionary religious perspective of people like the Greens, I am in full agreement. There is a worldview that places the blame for physical temptation and sexual indiscretion almost fully on women. That view ought to be critiqued wherever it is encountered.

      That said, when you start talking about policy, that changes the nature of the conversation.Report

    • Avatar Pinky in reply to Michael Drew
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      says:

      OK, Michael, I don’t mean this in an accusatory way, because I think your motives are good here, but how in a practical way is your recommendation any different from condescension?Report

      • Avatar Michael Drew in reply to Pinky
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        says:

        I suggested that it could seem like condescension, but I am going to retract that. It’s having a view but suspending it in the face of a an earnest, fully presented alternative perspective. As i said, I think that was the spirit in which Zic offered her post, and it’s having the effect on my views that I anticipated remaining unconfirmed in them might. See my response to Zic in this thread above for more.

        My response is that I no longer think it’s even enough like condescension on the surface to really merit an effort to distinguish it. It’s not like condescension at all.Report

  16. Avatar ScarletNumbers
    Ignored
    says:

    is contraception a necessary part of women’s health care (yes, it is)

    Objection: assumes facts not in evidenceReport

  17. Avatar zic
    Ignored
    says:

    I thought I ought share the other inspiration for this piece, and why I very much framed it on the lack of women’s voice in history.Report

  18. Avatar Mad Rocket Scientist
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    says:

    Sometimes, when it’s been a full day/weekend, I get to the party late & find everything I wanted to say said already.

    Sigh… Where is my popcorn, already?Report

    • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist
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      says:

      PS

      While I agree with the @jm3z-aitch, @james-k, etc regarding how it should be, @zic is right that as long as the system we have is the one we have to work with, then women should enjoy the same degree of coverage that men do, and contraception is part of that.Report

  19. Avatar Damon
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    says:

    Zic,
    I’m all for bodily integrity. In fact your quote from Justice Grey is 100% on point. I’d remind you that even if you point of view won day and things changed, you’d still not have bodily intregity. For the ultimate in control of you body, ie your property, is to do with it as you wish. Since there are many current laws preventing one to do this very thing, this issue will remain for a long time.Report

    • Avatar Don Zeko in reply to Damon
      Ignored
      says:

      I’m loathe to, even rhetorically, equate the right to bodily integrity with the general right to property. The whole reason to talk specifically about a right to bodily integrity is because of an view that taking someone’s blood, kidneys, or eggs is a much bigger deal and an inherently more intrusive use of state power than taking somebody’s money, their house, or their car. Both can be very serious breaches of liberty, but to me it seems that the whole point of articulating the right in this way is that the government should have to jump through more hoops to take my kidney than they have to jump through to take my money.Report

    • Avatar Kim in reply to Damon
      Ignored
      says:

      I too am against American eugenics laws.Report

  20. Avatar Mad Rocket Scientist
    Ignored
    says:

    Question for those in the know with regard to the insurance industry:

    Aside from health plans being an untaxed employee compensation, is there any other financial incentive for tying health insurance to employment? I recall once hearing the argument that employer plans can cost less because the employer can leverage the entire population of the workforce to gain a discount on premiums, but now that seems less relevant, if it ever was (if group leveraging was really effective, why don’t insurance co-ops form to reduce the premiums of other forms of insurance?).Report

    • Avatar Patrick in reply to Mad Rocket Scientist
      Ignored
      says:

      employer plans can cost less because the employer can leverage the entire population of the workforce to gain a discount on premiums

      This is true, but it necessarily is an unequal distribution of advantage, turning into disadvantage for some. A very large employer gets a break with little risk, and a small employer might wind up screwing everybody that works for him except the one person with a massively expensive health condition.

      is there any other financial incentive for tying health insurance to employment?

      Well, for insurance companies, it gives them the ability to eject people from the insurance pool with reasonable deniability. It’s at best a bug, and at worst a feature.

      Bob works for a small employer. Bob gets an expensive medical condition. Bob’s fellow employees see their insurance costs go up every year, because the pool isn’t big enough to offset Bob’s costs. Employees start departing the employer for companies with better medical coverage. Bob’s boss regretfully comes up with some pretext to get rid of Bob so that they can keep the rest of their employees. Bob, being without a job, can’t afford COBRA after his severance runs out. Bob loses insurance. Bob now has a preexisting condition and no way to get back under insurance coverage, really.

      Note that the preexisting exemption being removed doesn’t solve this problem, because Bob can now legally get insurance but any small employer still can’t take Bob on without screwing their other employees (and of course, they can’t ask Bob about his medical conditions, that’s a no-no, so there’s that information asymmetry problem).

      Employer-provided insurance is bananas, unless you’re a gigantor company.Report

  21. Avatar ktward
    Ignored
    says:

    I can’t thank you enough for writing this post, zic. So many of us are incapable of laying it all out on the table with such expository precision and elegance.

    You’re taking a lot of heat for it, sure, but as I read through the threads (in all honesty, try as I might I can’t make heads or tails of Murali’s post), I’m seeing a few heroes. Tod’s one of them, no surprise there.

    Anyhoo. Thanks again. It occurs to me that perhaps you’re one of the reasons why, after so many blog years, I still gravitate toward The Gents instead of Jezebel.Report

    • Avatar zic in reply to ktward
      Ignored
      says:

      Thank you, @ktward.

      I think it’s really easy to be shrill, to be anti-male, and that is not my intent. But it’s also really easy to take all the built-in bias toward being male, and think it’s the norm.

      We are incredibly blessed, living in the time where the human condition has the ability to be redefined to include both men and women with agency. That is a wonder.Report

  22. Avatar j r
    Ignored
    says:

    I am not going to say anything here that has not already been said on this thread. I would, however, like to try and isolate what I see as the main disconnect between those who do and who do not accept the bodily integrity argument in this particular context.

    I am guessing that there almost no one who comments here who would argue that a woman’s body and health and reproductive choices are not her own purview or that such decisions ought to be subject to the traditions, whims or arbitrary morality of the collective. I would also guess that most people here want to see a world in which anyone is denied access to basic medical services on the grounds of cost.

    The disconnect largely flows from the fact that you are making a claim based on natural rights (privacy and bodily integrity) and using that claim to posit a legal right (access to health care in the form of the ACA) and using the legal right to justify a particular policy provision (the employer mandate). All of that is fine. However, when you jump from the former to the latter to the last, the strength of the rights claim being made diminishes. Just because we recognize Party A’s claim to right X, does not mean that Party B is morally compelled to provide Party A with the means to X. You are asserting a claim on other people’s actions without doing the philosophical work to justify that claim.

    In other words, natural rights are indeed inalienable, but legal entitlements are not. The legal mandate for employers to provide a certain basket of health care goods and services to their employees is, in fact, the product of the legislative process. It is completely contradictory, therefore, to argue that it ought to exist as self-evident and above that legislative process.

    As I have written before, you cannot base your claim on privacy and bodily integrity while simultaneously petitioning the government to compel a third party to provide you with something. You can, but it is a contradictory argument. Once you compel an employer to provide health coverage then you have, in fact, made it the employer’s business.Report

    • Avatar Mike Schilling in reply to j r
      Ignored
      says:

      Similarly, you need to stop complaining about the video cameras in the ladies’ rooms. Once you compel an employer to provide a place for you to pee, then you have, in fact, made it the employer’s business.Report

    • Avatar zic in reply to j r
      Ignored
      says:

      @j-r

      Did you missed the bit about the company wanting special exemption to provide a lacking insurance in such a way that female employees are excluded from full insurance? If HL decided to offer lacking insurance without the exemption they seek or if they opted to not provide insurance, their employees could purchase full insurance in the exchange. Their action to limit based on their religious beliefs passing through the corporate veil is the problem.Report

      • Avatar j r in reply to zic
        Ignored
        says:

        Yes. I almost in full agreement with you here. I think that HL’s case is spurious and the claim to religious liberty largely disingenuous. They don’t like the law and this is a way to fight it.

        My point, however, is that this is a valid legal and political issue and not the obvious moral argument that you and others are trying to make it. It certainly has moral ramifications, but that’s not the same thing.

        If you are going to make a moral claim, then you have to make a valid moral argument and not just an assertion. An individual’s right to privacy and bodily integrity comes with it an obligation on the part of others not to violate that right. You can even claim a moral obligation on the part of others to take active steps to ensure an individual’s right. However, once you get to the point of legislating that a particular third party must provide a particular basket of goods, you are no longer making a moral argument. You are making a political argument. And once you make this a political argument, you can no longer claim that the right to privacy is the most important consideration, because it was the action of the law that brought the third party into this situation in the first place.Report

      • Avatar Kim in reply to zic
        Ignored
        says:

        jr,
        I think it’s still a moral argument, but I think that the farther away from the central tenet of the moral argument you go, the more “fringy” it becomes (having less argumentative power, as you have other morals coming into play).

        HL’s actual argument is that they should get an exemption just like the Church does.

        This to some extent invalidates the claim that this is about controlling women’s bodies — the executive has already said that’s okay (in this narrowly defined area of health insurance), and if you want to get militant about that (I do!), you should rightly point yer bile somewhere else.

        I truly think that there should be no exceptions (basing this on the monopsony power of Catholic hospitals).

        However, I am more happy with the government’s point that “church gets to decide what church does” and not “religious believer gets to decide what constitutes insurance.” The former is something that we’ve to some extent already carved into laws (we don’t compel churches to marry same-sex folks, for example). The latter is something that we’re quite busy debating in other realms (see that photographer in the Southwest).

        I think the government is reasonably consistent with our current moral debate…Report

      • Avatar zic in reply to zic
        Ignored
        says:

        I don’t think there’s such a swath of difference between moral rights and politics. Most people do not make that distinction; and politics is, at its heart, the compromise people reach over conflicting interests, including moral beliefs.

        I would have preferred single payer or a government-provide option, such as a Medicare buy-in. That was not on the table. So given the structure we have to work with, I have every right to make the moral arguments I’m making in the political, because the political realm is where moral rights are established. Consider it this way: because of the political realm, when my grandmothers were born, neither had access to a legal right to vote. When I was born, there was no legal access to either abortion or contraception, and it was legal for a husband to rape his wife. Until just a few years ago, it was legal to pay me less then the man working next to me. In Jan. of this year, it became illegal for health-insurance policies to discriminate against women. These are all moral issues that occur in the political realm.

        I’d prefer this discussion not be about the basket of goods HL provides as employee benefit; but because we have employer-provided health insurance, that’s where the discussion has to occur. There is no other place to have it. And I do not believe that the owner’s of a corporation have more legal right to their religious beliefs than women have to be fully free. The political will of how to provide a health-care transaction system puts the employer’s basket on the table, so the moral rights of what health insurance should and should not cover include the contents of that basket.Report

  23. Avatar Sierra Nevada
    Ignored
    says:

    The central conceit of common strains of libertarianism, that it represents a somehow more objective set of criteria for evaluating claims of the rights and responsibilities of societies and individuals, is unfounded. That libertarianism is such a handy cudgel for the powerful and privileged corporate ownership to use against women employees in the Hobby Lobby case should give libertarians pause.

    But I doubt it will.Report

  24. Avatar Sierra Nevada
    Ignored
    says:

    @j-r wrote:

    “As I have written before, you cannot base your claim on privacy and bodily integrity while simultaneously petitioning the government to compel a third party to provide you with something. You can, but it is a contradictory argument. Once you compel an employer to provide health coverage then you have, in fact, made it the employer’s business.”

    With a free labor contract, this might be true. But here in the real world, in the U.S., in 2014 the following conditions obtain:

    – The labor contract is not entirely free. Not by a long shot. Especially for women with children.

    – The corporate veil has been reconfigured into a one-way mirror, retaining its liability protections that shield ownership, but magically allowing their personal beliefs free transmission into the corporate “person.”

    Under those conditions, it is totally logically consistent to simultaneously hold that claims of privacy and personal integrity and at the same time petition the government to compel the privileged corporate owners provide certain universal benefits. To claim otherwise is absurd.Report

  25. Avatar Kazzy
    Ignored
    says:

    @zic

    As I continue to embark on the adventure that is teaching 8th grade health class, how might you advise me to discuss contraceptives such that I can lay a foundation different for my students than what seems to predominate. Keep in mind I have to take a somewhat neutralish stance on some things. But I’m sure there are some things I can say that can engender enlightenment on the topic. For instance, I’m sure it is better to talk about oral contraceptives as a medicine that is prescribed for various reasons, including preventing pregnancy, than it is to simply say, “They stop the baby maker from baby making!” What else might you recommend?

    Thanks.Report

    • Avatar zic in reply to Kazzy
      Ignored
      says:

      I think I would approach it from the point of respect. First, to point out that without contraceptives, women’s lives were constrained, and that this limited their freedom to do things like become doctors and lawyers and presidents. So respecting women as people includes recognizing that they have a right to choose if they want to have a child, and a right to space their children as they see fit.

      Secondly, is respect for children. And there are two parts here. First, we want parents to be ready and able to be good parents. Second is respect for each child’s body; because while they are adolescent and dependent on their families, they are in the process of becoming adults; their bodies are able to procreate before they may be ready to be parents. So this is really important information for them to have to respect the potential of their own bodies and their futures.

      Next, there are tremendous variations between how women will respond to different contraceptives; rather akin to different people having different food allergies and different food preferences. Some women may not be reliable at taking a pill every day; some may have a bad reaction to the ingredients in pills, others may want something long term, some may need emergency contraception, some may decide they don’t want to have children at all; so the different types contraception reflect the complex needs of women, and it is important to responsibly find the methods (including abstinence, if that is your choice) that is appropriate for you.

      Finally, I would stress that this is not just a woman’s responsibility, it is a human responsibility; a baby requires both an egg and a sperm, and males have equal responsibility to approach sexuality, sex, reproduction and parenting with respect.Report

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