I never write diaries. I'm too busy doing front line work in reproductive health care. I hope you give this diary a read because I haven't seen alot written about this in the progressive blogosphere. We all know that we must seriously push back on the latest maneuver in the War on Women. The maneuver goes like this: constitutionally protected religious liberty is under attack by Health and Human Services (HHS) regulations that do not exempt certain religiously affliated employers from providing birth control coverage in their health insurance plans for their employees.
The fact that 98% of Catholic women have used birth control, in my view, is not an effective push back on the Catholic bishops religious liberty argument. If constitutionally protected religious liberty were really at stake the “everybody’s doing it” argument doesn’t hold water. I think court rulings on this subject are important to incorporate into pushback on the birth control controversy this week.
Legal precedents in the courts have ruled that certain religiously affiliated institutions can NOT opt out of contraception coverage in their health insurance plans. But you wouldn't know it based on commentary within the mainstream media in the past week responding to the Catholic bishops. The bishops are lobbying hard that Obama has “overreached” by assaulting religious liberty in that religious employers will be forced to violate their consciences by paying for birth control in their insurance plans. And they are having an impact in the media. EJ Dionne, Chris Matthews, Melinda Henneberger,, Mark Shields, David Brooksand USA Today, among others, have all parroted the Bishops’ seemingly convincing meme. And, the Obama Administration is not helping with its lackluster messaging on the topic.
But there are other liberties at stake here besides religious liberty, namely, that is, the rights of employees to be free from discrimination (shocking, I know). We are not hearing much about this. Not surprisingly since the MSM no longer does real journalism and therefore hasn't bothered to research the background. But legal case history shows that courts, including the U.S. Supreme Court , have previously ruled in favor of nondiscrimination against employees against the "religious liberties" arguments of certain religious employers on the issue of contraception.
At issue in the Administration's regulations is what criteria permit religious institutions to be exempt from the requirement that health insurance plans under the Affordable Care Act (aka health care reform) cover birth control. In a nutshell, the regulations stipulate that religious organizations that primarily employ and serve people of its own faith (e.g. churches) ARE exempt from covering contraception in their insurance plans (so that parish priest can’t get a vasectomy paid for by the Church). But NOT exempt from the regulations are religiously affiliated institutions that employ and serve people of diverse backgrounds. such as Catholic hospitals and universities. Also the regulations do not change the "conscience" clause that permit health care providers (not insurance carriers) from providing contraception or abortion.
Adam Somfield, in the American Medical Association Journal of Ethics provides an excellent policy and legal history . During the passage of the Affordable Care Act (ACA), Somfield notes:
Congress did not agree to include [a religious exemption] for contraception, despite including several other religious exemptions as part of the ACA….In fact, the decision by Congress not to include a religious exemption in this case was far from unprecedented. Nine of the 28 states that have required insurance coverage of contraception have done so without including any religious exemption for employers [7]
The Obama Administration,when writing the regulations for the ACA last summer, did listen to religious concerns and put in place a religious exemption.
Somfield continues:
When it made its decision in August 2011 on women’s preventive services, HHS also put forward an exemption to the required coverage of contraception for health plans provided by “religious employers” [3]. That key term is defined as an organization that has the inculcation of religious values as its purpose, primarily employs and serves people who share its religious tenets, and is a nonprofit organization under sections of U.S. law that refer to “churches, their integrated auxiliaries, and conventions or associations of churches” and to “the exclusively religious activities of any religious order” [32]. The language mirrors the religious exemptions to contraceptive coverage laws established, and upheld by courts, in California and New York [33, 34].
But as we all now know, that exemption was simply not enough for the Catholic bishops and other religious and political allies. They have been arguing for the aforementioned broader exemption . Unlike the MSM,
Digby, as always, did her homework . She cites what I’m sure was an easily googled ACLU press release dated 10-1-07, that points out that in 2007 the
U.S. Supreme Court ruled against such an exemption requested by Catholic Charities in New York:
The U.S. Supreme Court today turned down a request by Catholic Charities of New York to review a state court decision requiring insurance companies to include contraceptive coverage in drug benefit packages. The Court's refusal to hear the case leaves in place a law that promotes women's health and addresses gender discrimination while appropriately protecting religious freedom.
In other words, religious organizations that employ and serve the larger public cannot violate discrimination in employment laws yet still maintains their religious freedoms. Such employers must adhere to the separation of church and state. More from
ACLU/Digby:
Catholic Charities appealed a 2006 decision by the Court of Appeals for the State of New York, New York's highest court, that concluded that the Women's Health and Wellness Act was a neutral law designed to advance both women's health and the equal treatment of men and women. That court also held that "when a religious organization chooses to hire non-believers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit."(emphasis mine)
And from the same Digby post, even earlier in 2004, Catholic Charities attempted the same under a similar California health insurance law but failed to convince the Court:
In October 2004, the U.S. Supreme Court turned down a request by Catholic Charities to review a similar law, the California Women's Contraceptive Equity Act. The ACLU filed a friend-of-the-court brief in that case, Catholic Charities v. Superior Court, as well.
So there is legal precedent for HHS’ regulations that has been upheld by courts? And even SCOTUS was unwilling to hear the these cases? Why aren’t we hearing about this in the mainstream media? All we are hearing is the talking points of the Catholic bishops. Why?
Digby:
What this proves is that this is yet another partisan political move on the part of the very partisan Catholic Bishops. We saw how they tried to derail the health care bill on behalf of the Republicans --- using Catholic Democrats in congress to do it. Similarly, they are trumping up this controversy on behalf of the GOP. Otherwise, we would have seen a similar rending of garments across the land over these 28 states making the same requirements. And the threats of closing Universities and hospitals rather than violate the "Church's conscience" are obviously phony. If they were going to do that, they already would have.
No, this is not about conscience. It's about the Bishops doing a solid for their Republican allies in an election year. It's not about religion or morality either. It's about politics.
And, the "liberal" media commentary by Shields, Dionne, and Michael Winters accusing the President of violating religious freedom?
Sarah Posner writes in "Four Catholic Men v. Obama":
Of course we expect this reaction from conservatives, and from conservative Catholics. But those three liberal Catholic pundits are taking the president to task, variously, for trampling on the Catholic social justice tradition (theory being that Catholic organizations will close their doors rather than comply with the mandate, a move that's blamed on Obama, not on said organizations' refusal to follow the law like everyone else); reneging on his promise in his 2008 Notre Dame speech to find common ground on difficult issues; and snubbing Catholic supporters of health care reform who had bucked the Bishops by supporting the final package that contained no provision for abortion coverage but was falsely depicted as covering abortion by the Bishops.
Obama's greatest sin, in this view: violating the religious beliefs of the Catholic hierarchy. Not the beliefs or practices of lay Catholics, or the Catholic and non-Catholic employees of Catholic institutions.…
Will Winters and Shields and Dionne cause Catholic Democrats to flee Obama en masse? Maybe we'd know if any of the media outlets that published their opinions had asked a Catholic with ovaries.
I took a break from writing this diary this morning. I was running errands and listening to Ed Schultz' radio program.He was talking with and Barry Lynn of Americans United for Separation of Church and State discuss that this is not just an assault on women, but also on workers' rights. Lynn made an excellent point about how this being somewhat similar to the notion that corporations are people with free speech rights. In this case, the bishops argue that an institution (a Catholic employer) has rights that trump individual employees' rights. Later on the show, Schultz was discussing how the right wings bigger argument will be that an employer who happens to be Catholic (e.g. the Catholic owner of a Taco Bell franchise) should be able to refuse to provide birth control coverage. Hope to hear more about this.