for those who do not know, Greenhouse was the long-time Supreme Court reporter for the New York Times who won the 1998 Pulitzer Prize for her beat reporting. Since taking an early buyout she has been a senior fellow and journalist in residence at Yale Law, from which she got her legal training after graduating from Radcliffe College in 1967.
Her piece is occasioned by the decision of the Supreme Court to take the two cases of employers claiming that the requirement of birth control coverage under the Affordable Care Act violates their rights under the Religious Freedom Restoration Act. In a piece titled Doesn’t Eat, Doesn’t Pray and Doesn’t Love, she argues that the real import about these cases is less about the rights of corporations than it is about other important issues.
Please keep reading.
Greenhouse provides a thorough analysis of the substance of the cases. She notes that the objection to contraception coverage has to confront several realities, among which is that Catholic women use birth control and obtain abortions at the same rate as do other women, and access to affordable long-term contraception by poor women reduces both unwanted pregnancies and abortions, but absent the mandate of the ACA many poor women will not be able to afford such contraception. She then notes
To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.And that last sentence is what is key to Greenhouse.
The heart of the column comes in the final three paragraphs. She set this up by noting that for the Obama administration the requirement for contraception coverage is one of a panoply of preventative services that should be provided in a comprehensive health care system.
The administration has framed this aspect of the Affordable Care Act as the implementation of evidence-based medicine, which of course it is and should be. But there’s a missing piece. One of the failures of the Affordable Care Act saga, it seems to me, has been the president’s unwillingness or inability to present universal health care as a moral issue, a moral right in a civilized society. Thus the administration meets the moral claims of its opponents in technocratic mode, one hand tied behind its back.Is is puzzling to many of us why the administration did not make health care a moral argument. As close as we have seen to having that argument made was by Howard Dean in his unsuccessful campaign for the 2004 Democratic Presidential nomination. The moral argument exists in places like the words of Franklin Roosevelt's Second Bill of Rights and in the Universal Declaration of Rights of the United Nations. For anyone who has ever encountered a real medical crisis in their family or with someone else to whom they are close, the moral argument is a no-brainer. I wrote yesterday this piece after seeing what would have been a humongous bill for my wife's autologous stem cell transplant, which was covered under her insurance as a federal employee, which reminded me again of the life and death and/or possibilities of bankrupcty absent access to GOOD insurance.
Greenhouse's penultimate paragraph is long, but important:
There’s a powerful argument to be made, both in policy and law, that an employer of any faith or no faith who chooses to enter the secular marketplace can’t pick and choose which rules to follow. As some of the federal judges who have rejected the religious claims in these cases have pointed out, no employer would have the right to tell employees that they can’t use their wages to obtain contraceptives, abortions or any other legal product or service. By paying employees as the law requires, neither a corporation nor its owner is endorsing the employees’ choice of what to spend their money on – no more than a local government endorses a parent’s choice to use a taxpayer-funded voucher for religious-school tuition. The Supreme Court for decades has embraced the notion that an intervening private choice of this sort, even when a government program is clearly designed to channel public money to religious institutions, avoids what would otherwise be a violation of the First Amendment’s Establishment Clause.I think the reasoning contained herein will provide Chief Justice Roberts, if he wants to retain the Affordable Care Act (and remember, he wrote the opinion upholding its basic constitutionality) the wiggle room on the topic without necessarily feeling he is violating his conscience as a conservative Catholic. I suspect even given his distaste for ACA, on this issue it is possible that Justice Kennedy MIGHT be persuaded that there is no First Amendment violation.
Still, it is possible that there are five votes to kill the contraception provision. So Greenhouse writes in her concluding paragraph
So now, once again, the court will have the last word. A ruling against the contraception mandate won’t kill the Affordable Care Act – much as some justices might fervently desire that result. If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.As a statutory exemption it avoids the conflict that Scalia so fervently wants.
But then ACA does not REQUIRE a company to even offer health care. Thus an owner who has a religious exemption can simply choose to not offer health care, and to take the consequences in the difficulties that might create in hiring/retaining employees.
But then, so long as ACA stands, those employees would be able to go into exchanges at either the state or federal levels, and still be able to obtain contraception coverage.
Thus unless some mechanism appears by which ACA is overturned - and these cases do not appear to be that mechanism - the long-term affect even of winning these cases may be two-fold
1. To make ACA more effective and move it more towards a single-payer model
2. to further alienate large numbers of Americans who want access to affordable contraception and who do already accept the notion that one should be able to have sexual relations without the possibility of pregnancy away from those who seek to impose their contrary religious views upon the rest of us.
That, too, is a moral argument that can and should be made.
It is important.
It is nevertheless subsidiary to the moral right to access to affordable health care, which for most people means affordable medical insurance that covers all reasonable medications including contraception.
Read the article.