- In any case like this, you have to look at two separate issues: (1) How important is the secular public purpose of the policy? And (2) how deeply held is the religious objection to it?
- On the first issue, I'd say that the public purpose here is pretty strong. Health care in general is very clearly a matter of broad public concern; treating women's health care on a level playing field with men's is, today, a deep and widely-accepted principle; and contraception is quite clearly critical to women's health. Making it widely and easily available is a legitimate issue of public policy.
- On the second issue, I simply don't believe that the religious objection here is nearly as strong as critics are making it out to be. As I've mentioned before, even the vast majority of Catholics don't believe that contraception is immoral. Only the formal church hierarchy does. What's more, as my colleague Nick Baumann points out, federal regulations have required religious hospitals and universities to offer health care plans that cover contraception for over a decade. (The fact that some such employers don't cover birth control is mostly the result of lax enforcement.) It's true that the Obama regulation tightens this requirement, but only modestly: it covers organizations with fewer than 15 employees and it bans copays. Dozens of states already have similar rules on the books. So when Kirsten Powers says, "One thing we can be sure of: the Catholic Church will shut down before it violates its faith," that's just wrong. They've been working under similar rules for a long time without turning it into Armageddon.
- Some matters of conscience are worth respecting and some aren't. If, say, Catholic doctrine forbade white doctors from treating black patients, nobody would be defending them. The principle of racial nondiscrimination is simply too important to American culture and we'd insist that the church respect this. I think the same is true today of the principle of nondiscrimination against women, as well as the principle that women should have control of their own reproduction. Like racial discrimination laws, churches that operate major institutions in the public square have to respect this whether they like it or not.
- This new policy doesn't apply to churches themselves or their devotional arms. It applies only to nominally religious enterprises like hospitals and universities that serve secular purposes, take taxpayer dollars, employ thousands of non-Catholic women, and are already required to obey a wide variety of secular regulations. At organizations like these, the money that pays for employee health care doesn't come from the church, it comes out of the income stream they get from their customers and clients.
- What's more, this is hardly a unique matter of conscience. Anyone who pays taxes, including Catholic bishops, ends up financially supporting things they disapprove of. Public regulations often involve financial commitments too, and this one is no different. It's also pretty minuscule. This is an issue that's very clearly being blown up for partisan political reasons far beyond its actual impact on religious organizations or religious conscience.
So why am I really feeling so hard-nosed about this? The answer goes back a few years, to the controversy over pharmacists who refused to fill prescriptions for the morning-after pill. I was appalled: If you're a pharmacist, then you fill people's prescriptions. That's the job, full stop. If you object to filling prescriptions, then you need to find another occupation.
But of course, the entire right-wing outrage machine went into high gear over this. And it was at that point that my position shifted: if this was the direction things were going, then it was obvious that there would be no end to religious exemption arguments. The whole affair was, I thought, way over the top, and yet it got the the full-throated support of virtually every conservative pundit and talking head anyway. This was, in plain terms, simply a war on contraception.
So I changed my mind. Instead of believing as a default that we should take religious exemptions seriously and put the burden of proof on the rest of us to explain why they shouldn't be allowed, I now believe that neutral public policy comes first and the burden of proof is now up to churches to provide convincing arguments that (a) An important matter of conscience is being violated, and (b) The public policy in question isn't important enough to be applied across the board. On the matter of contraception, I don't think they've made a convincing case for either one.
Kevin Drum
Most of Obama's "Controversial" Birth Control Rule Was Law During Bush Years
The right has freaked out over an Obama administration rule requiring employers to offer birth control to their employees. Most companies already had to do that.
| Wed Feb. 8, 2012 2:10 PM PST
Despite the longstanding precedent, "no one screamed" until now, said Sara Rosenbaum, a health law expert at George Washington University.
In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don't offer prescription coverage or don't offer insurance at all are exempt, because they treat men and women equally—but under the EEOC's interpretation of the law, you can't offer other preventative care coverage without offering birth control coverage, too.
"It was, we thought at the time, a fairly straightforward application of Title VII principles," a top former EEOC official who was involved in the decision told Mother Jones. "All of these plans covered Viagra immediately, without thinking, and they were still declining to cover prescription contraceptives. It's a little bit jaw-dropping to see what is going on now…There was some press at the time but we issued guidances that were far, far more controversial."
After the EEOC opinion was approved in 2000, reproductive rights groups and employees who wanted birth control access sued employers that refused to comply. The next year, in Erickson v. Bartell Drug Co., a federal court agreed with the EEOC's reasoning. Reproductive rights groups and others used that decision as leverage to force other companies to settle lawsuits and agree to change their insurance plans to include birth control. Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained, and over the following decade, the percentage of employer-based plans offering contraceptive coverage tripled to 90 percent.
"We have used [the EEOC ruling] many times in negotiating with various employers," says Judy Waxman, the vice president for health and reproductive rights at the National Women's Law Center. "It has been in active use all this time. [President Obama's] policy is only new in the sense that it covers employers with less than 15 employees and with no copay for the individual. The basic rule has been in place since 2000."
Not even religious employers were exempt from the impact of the EEOC decision. Although Title VII allows religious institutions to discriminate on religious grounds, it doesn't allow them to discriminate on the basis of sex—the kind of discrimination at issue in the EEOC ruling. DePaul University, the largest Roman Catholic university in America, added birth control coverage to its plans after receiving an EEOC complaint several years ago. (DePaul officials did not respond to a request for comment.)
As recently as last year, the EEOC was moderating a dispute between the administrators of Belmont Abbey, a Catholic institution in North Carolina, and several of its employees who had their birth control coverage withdrawn after administrators realized it was being offered. The Weekly Standard opined on the issue in 2009—more proof that religious employers were being asked to cover contraception far before the Obama administration issued its new rule on January 20 of this year.
"The current freakout," Judy Waxman says, is largely occurring because the EEOC policy "isn't as widely known…and it hasn't been uniformly enforced." But it's still unclear whether Obama's Health and Human Services department will enforce the new rule any more harshly than the old one. The administration has already given organizations a year-long grace period to comply. Asked to explain how the agency would make employers do what it wanted, an HHS official told Mother Jones that it would "enforce this the same way we enforce everything else in the law."
"We have used [the EEOC ruling] many times in negotiating with various employers," says Judy Waxman, the vice president for health and reproductive rights at the National Women's Law Center. "It has been in active use all this time. [President Obama's] policy is only new in the sense that it covers employers with less than 15 employees and with no copay for the individual. The basic rule has been in place since 2000."
Not even religious employers were exempt from the impact of the EEOC decision. Although Title VII allows religious institutions to discriminate on religious grounds, it doesn't allow them to discriminate on the basis of sex—the kind of discrimination at issue in the EEOC ruling. DePaul University, the largest Roman Catholic university in America, added birth control coverage to its plans after receiving an EEOC complaint several years ago. (DePaul officials did not respond to a request for comment.)
As recently as last year, the EEOC was moderating a dispute between the administrators of Belmont Abbey, a Catholic institution in North Carolina, and several of its employees who had their birth control coverage withdrawn after administrators realized it was being offered. The Weekly Standard opined on the issue in 2009—more proof that religious employers were being asked to cover contraception far before the Obama administration issued its new rule on January 20 of this year.
"The current freakout," Judy Waxman says, is largely occurring because the EEOC policy "isn't as widely known…and it hasn't been uniformly enforced." But it's still unclear whether Obama's Health and Human Services department will enforce the new rule any more harshly than the old one. The administration has already given organizations a year-long grace period to comply. Asked to explain how the agency would make employers do what it wanted, an HHS official told Mother Jones that it would "enforce this the same way we enforce everything else in the law."
