The Tip of the Iceberg

To see the lack of a meeting of minds in the argument over whether forcing Catholic hospitals, schools, and other institutions that aren’t houses of worship per se is a violation of religious liberty you need only contrast John Holbo’s recent post at Crooked Timbers with an open letter signed by members of the faculty of Notre Dame Law School.

Mr. Holbo notes:

Religious liberty is individual liberty. It should now be possible to illustrate how McConnell’s proposal violates this principle without making it sound as though you are worried about creeping sharia, etc. (If two consenting adults want to submit to binding arbitration by an expert in sharia law, or something like that, that’s generally ok. Stuff like that. Group rights grow out of individual rights in this way, without fundamentally abrogating them.) You can explain that you are in favor of same-sex marriage (if you are) not just because someone somewhere says it’s religiously ok – so Bam! it is. For them. Rather, same-sex marriage is justified because it’s a voluntary association between two consenting adults, so forth. All this flows from consistent commitment to optimizing the supply of individual liberty. That means: making sure everyone has as much of the stuff as possible, consistent with everyone having it. When you give groups the right to restrict the religious liberties of individuals, you sacrifice this principle. (Americans are ok with some people having a lot more economic liberty than others, in effect, due to being richer. But I don’t think they think some people should have a lot more religious liberty than others, due to being richer.)

and

Suppose alcohol is made illegal, on purely religious grounds. I think it’s fair to say that forcing people not to drink amounts to compelling a kind of religious observance. (A negative observance, to be sure. But that’s still a form of observance.) Compelling religious observance is a violation of religious liberty, which includes the right not to be observant of any given religion. Suppose it’s just a ‘sin’ tax, not an outright ban. Alcohol is made hugely expensive. Well, if the sin in question is purely religious – if we aren’t making the case that the state has some compelling civic or secular reason for trying to discourage alcohol consumption – then I take it forcing someone to pay more, purely on the grounds that they are ‘sinning’, imposes a religious restriction on them. Purely religious ‘sin’ taxes ought to be regarded as violations of individual religious liberty. See, for example, the history of special taxes on Jews in European history.

Now, the pill. Yes, employees can go out and buy the stuff even if it isn’t covered by employers. But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. If the Catholic church wanted to impose a voluntary sin tax on practicing Catholics – if the Bishops said all Catholics who use birth control should pay a bit extra, to atone for this sin – that would be acceptable (at least legally non-objectionable, in the eyes of the government). But the church can’t ask the state to compel payment of this tax, unless there has been some kind of binding contract to pay. The church can’t compel the state to help them extract payment even just from Catholics, let along non-Catholics. It’s not the government’s business. Quite the contrary.

That is, the issue is not one of religious liberty but of individual liberty competing with group liberty and the individual liberty should prevail.

On the other side the law school faculty:

It is morally obtuse for the administration to suggest (as it does) that this is a meaningful accommodation of religious liberty because the insurance company will be the one to inform the employee that she is entitled to the embryo-destroying “five day after pill” pursuant to the insurance contract purchased by the religious employer. It does not matter who explains the terms of the policy purchased by the religiously affiliated or observant employer. What matters is what services the policy covers.

and

The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health insurance contract that provides abortion-inducing drugs, contraception, and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims, and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.

That last is significant. Subsuming sterilization and abortifacients into a single category with the Pill as “contraception” and then tailoring the argument solely to the Pill, as much of the news and blogospheric commentary has done, is certainly cherry picking.

Is this just the tip of the iceberg? What other controversial rulings will HHS promulgate? For example, what fertility treatments must be covered by an acceptable insurance policy? That’s likely to be as problematic for Catholic institutions as the broadly-conceived contraception provision is. I’ve been unable to locate a consolidated statement of the specific requirements of an acceptable insurance plan. I’m guessing that the details are emerging piecemeal and there currently isn’t such a consolidated statement.

Are the provisions really the minimum requirement? Or are they trying to define some sort of optimal plan?

One final point: I really think there is a lack of meeting of minds on the subject of compromise. The Catholic Church is not a consensus-based institution. What most Catholics do is utterly irrelevant. If the church hierarchy elects to dig in its heels, the Obama Administration will have entered into a struggle from which the most it will exact is a pyrrhic victory.

58 comments… add one
  • michael reynolds

    The federal government informed Mormons that they would no longer be practicing polygamy. Somehow religious liberty survived.

    Various governments have at times informed Christian Scientists and Jehovah’s Witness that their children would not be allowed to die for lack of medical care. And yet, religious liberty survived.

    This is not about religious liberty, its about politics.

    Frankly the notion that anyone, anywhere should pay the slightest attention to the pronouncements of bishops who have jointly and severally engaged in a decades-long cover-up of child rape and then orchestrated smear campaigns against the victims is ridiculous.

  • That’s not actually what happened, michael. The Mormons cut a deal with the federal government as part of the terms for Utah’s entering the Union. The federal government did not inform them. There was an agreement.

  • steve

    Insurance companies will likely save money if they pay for contraceptives. This recognized with the ACA when it came to abortion.

    http://www.kff.org/healthreform/upload/8061.pdf

    (pages 5 and 6)

    So, if it is not paid for, people pay more fro their insurance, a loss of liberty. (This seems very much like a tax paid to appease Church elders.) If it is paid for, it offends the sensibilities of a minority of Catholics, judging by their actions and not their words, a loss of liberty. I cant say I care all that much.

    However, on the political side, I dont know why the administration did this. It was pretty predictable and not necessary. Yes, he was doing what most Catholics really want, but he forgot that the Church is run by a few old men.

    Steve

  • michael reynolds

    Thanks for that correction, I appreciate it.

    The point still stands: government imposes all sorts of restrictions on religious practice. And we regularly require people to pay for things they object to on religious grounds: taxes for defense collected from pacifists, being the obvious example. If we can require a Quaker to pay taxes to buy bombs, or collect taxes from Rastafarians for a drug war, I’m not sure I see where this is any great attack on religious liberty.

  • sam

    @Steve
    “However, on the political side, I dont know why the administration did this. It was pretty predictable and not necessary. ”

    I suggested elsewhere that it played rope-a-dope, and the dopes got roped.

  • steve

    Oops. Forgot to link to numbers on amount we will save if contraceptives are available. As an employer, I want them to be available. (On bad days I have contemplated slipping them into the coffee of my staff.)

    Steve

  • sam

    @Dave

    “The federal government did not inform them. There was an agreement.”

    I dunno, Dave. There’s informing, then there’s informing:

    The Edmunds–Tucker Act of 1887 was passed in response to the dispute between the United States Congress and The Church of Jesus Christ of Latter-day Saints (LDS Church) regarding polygamy. The act is found in US Code Title 48 & 1461, full text as 24 Stat. 635, with this annotation to be interpreted as Volume 24, page 635 of United States Statutes at Large. The act is named after its congressional sponsors, Senator George F. Edmunds of Vermont and Congressman John Randolph Tucker of Virginia. The act was repealed in 1978.

    History

    The act disincorporated both the LDS Church and the Perpetual Emigration Fund on the grounds that they fostered polygamy. The act prohibited the practice of polygamy and punished it with a fine of from $500 to $800 and imprisonment of up to five years. It dissolved the corporation of the church and directed the confiscation by the federal government of all church properties valued over a limit of $50,000. The act was enforced by the U.S. marshal and a host of deputies…

    In 1890 the U.S. Supreme Court upheld the seizure of Church property under the Edmunds–Tucker Act in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States.
    [The Edmuns-Tucker Act]

  • Maxwell James

    What most Catholics do is utterly irrelevant.

    I doubt that very much. This is an issue that hits most Catholic voters in the pocketbook, and they know that. For them it would be an equally pyrrhic victory to stand with the Church and Notre Dame on this. Obama’s compromise proposal is already polling well with them. I think the fight is over.

  • michael reynolds

    More on the feds and the Mormons. http://en.wikipedia.org/wiki/Morrill_Anti-Bigamy_Act

    From the always-reliable Wikipedia:

    The Morrill Anti-Bigamy Act (37th United States Congress, Sess. 2., ch. 126, 12 Stat. 501) was a federal enactment of the United States Congress that was signed into law on July 8, 1862 by President Abraham Lincoln. Sponsored by Justin Smith Morrill of Vermont, the act banned bigamy and limited church and non-profit ownership in any territory of the United States to $50,000.[1]
    The act was designed to target the Mormon practice of plural marriage and the property dominance of The Church of Jesus Christ of Latter-day Saints in the Utah Territory. The measure had no funds allocated for enforcement, and Lincoln chose not to enforce this law; instead Lincoln gave Brigham Young tacit permission to ignore the Morrill Act in exchange for not becoming involved with the Civil War.[2] General Patrick Edward Connor, commanding officer of the federal forces garrisoned at Fort Douglas, Utah beginning in 1862 was explicitly instructed not to confront the Mormons over this or any other issue.[2]

  • @Michael Reynolds: Your various straw men miss the real point.

    First of all, we are not talking about a tax. We are talking about a mandate to purchase a product. The Institutional Mandate is as obnoxious and unconstitutional as the Individual Mandate.

    Number two -providing for the national defense *is* in the constitution, whereas providing contraceptives is *not.*

    I think we can agree on the drug war thing, though. Let the Rastafarians buy their own damn pot, and everybody else can buy their own dam morning after pills. Deal?

    d(^_^)b
    http://libertyatstake.blogspot.com/
    “Because the Only Good Progressive is a Failed Progressive”
    d(^_^)b
    http://libertyatstake.blogspot.com/
    “Because the Only Good Progressive is a Failed Progressive”

  • Polygamy was the issue that delayed Utah’s admission to the Union until 1896. It had been petitioning for statehood almost since the Compromise of 1850.

    In 1890 LDS President Wilford Woodruff started moving against polygamy (the “Manifesto”). That paved the way to statehood and Utah wrote an anti-polygamy statute into its state constitution.

    Monogamy was unenforced by gentleman’s agreement for quite a while, then enforced with varying degrees of force for 30 years, then the LDS starting moving in the direction of monogamy, then it was admitted to the Union.

    The Catholic Church is not the LDS and (to my dismay) is actually becoming more conservative. The bishops won’t back down.

    I condemn the child abuse perpetrated by priests and the cover-up by the bishops as loudly as anyone. I believe in a married clergy, 50% of the college of cardinals being comprised of women, and the clergy leaving the temporal control of church property, etc. in the hands of the laity. I believe priests who abused children and the bishops who covered it up should be prosecuted to the full extent of the law.

    However, none of this has any effect on the bishops’ authority. Look up “Donatism”.

    I think intelligent people can differ on this subject but I don’t think that sterilization and abortifacients as essential components of a healthcare insurance plan are worth the Obama Administration’s going to the wall and that could be what it takes. At the margins it will lose the president some votes and probably gain him zero. IMO it was an error.

  • Icepick

    The Catholic Church is not the LDS and (to my dismay) is actually becoming more conservative.

    Funny that a millenia old institution predicated on the absolute authority of its ruler and inflexible Laws handed down by God HisOwnSelf wouldn’t be more flexible and accomidating of the whims of the moment. It is almost (but just almost) shocking.

  • michael reynolds

    However, none of this has any effect on the bishops’ authority. Look up “Donatism”.

    You’re talking about their doctrinal authority within the church, which may be unaffected — though how much authority they really have given that Catholics ignore them on birth control as frequently as non-Catholics is a good question.

    This is not about their authority in the church. This is politics in the public arena. And in the public arena when a body has participated in, indeed directed, a massive, long-term cover-up of child rape they can no longer claim to have any authority to speak on any topic whatsoever. In fact, had they an ounce of decency we’d have heard that the entire crowd had toddled off to some distant monastery to take vows of silence and spend the rest of their lives praying for forgiveness.

    I’d as soon take policy advice from the inmates at San Quentin — they at least are paying for their crimes.

  • steve

    http://www.businessgrouphealth.org/benefitstopics/topics/purchasers/condition_specific/evidencestatements/contraceptiveuse_es.pdf

    Finally. The savings would not be trivial if insurance companies offer contraceptives. Besides the savings from delivery and child care costs, businesses would save in direct costs with fewer unplanned pregnancies.

    Steve

  • sam

    “In 1890 LDS President Wilford Woodruff started moving against polygamy (the “Manifesto”). That paved the way to statehood and Utah wrote an anti-polygamy statute into its state constitution.”

    Extraordinary how Woodruff had that revelation from God about polygamy just months after the Court upheld the confiscation of Mormon properties in the case cited above.

  • sam

    As for the issue being at best a political wash for Obama, or at worst, a net loser, not with allies like this:

    McConnell: GOP Will Fight To Let ANY Employer Deny Birth Control Coverage

    Not satisfied with President Obama’s new religious accommodation, Republicans will move forward with legislation by Sen. Roy Blunt (R-MO) that permits any employer to deny birth control coverage in their health insurance plans, Senate Minority Leader Mitch McConnell (R-KY) said Sunday.

    “If we end up having to try to overcome the President’s opposition by legislation, of course I’d be happy to support it, and intend to support it,” McConnell said. “We’ll be voting on that in the Senate and you can anticipate that that would happen as soon as possible.”

    The Blunt amendment he was specifically referring to would “ensure that health care stakeholders retain the right to provide, purchase, or enroll in health coverage that is consistent with their religious beliefs and moral convictions” under the Affordable Care Act. Similar legislation was introduced by Sen. Marco Rubio (R-FL) before the White House announced Friday that it would allow religious nonprofits such as charities, hospitals and universities to opt out of paying for contraception coverage and force the insurance company to do so instead.

    That’ll poll well with women.

  • michael reynolds

    sam:

    I’m in favor of the GOP attempting to allow all employers to cut off insurance for contraception. By all means they should take the side of the bishops against the vast majority of women (and men) in this country. As you say: should poll really well.

  • PD Shaw

    Holbo is already off on the wrong foot by stating that religious liberty is an individual liberty. The First Amendment does not say anything about individuals, and the establishment clause in particular probably cannot be understood without reference to the concern that the government would endorse what were then called “ecclesiastical corporations,” and what are now known as religious corporations.

    The establishment problems in our system (probably uniquely) are always immense. The courts cannot decide what sharia law; they cannot decide who a sharia expert is. To do so, would be for the government to”establish” what is or what is not sharia law. The courts can only get involved if they don’t need to know what sharia is, such as enforcing an agreement for arbitration by a specific iman or Islamic arbitration panel.

    Similarly, people are far too comfortable stating what is or what is not religious practices of the Catholic Church. It places the government on quite dicey grounds.

    These limitations don’t always make sense; there have been disputes in religoius corporations about property or management that have persisted for decades and the courts refuse to get involved.

    After that I have no idea what Holbo is talking about. We pass sin taxes all of the time. Hell, it would be legal to ban alcohol in toto, if the Constitution hadn’t reversed itself.

  • michael reynolds

    Liberty:

    The Institutional Mandate is as obnoxious and unconstitutional as the Individual Mandate.

    Then I’m sure the Supremes will reach that conclusion. In the meantime, just because a hospital is owned by some element of the Catholic church that is not an excuse for them to avoid a set of rules promulgated for everyone. A kosher meatpacker still has to follow sanitation standards set by the feds, even when they answer to a higher authority.

    If you want to argue that the laws and regulations have to be set aside whenever some subset of a religion decides it has an objection, then I assume you’ll apply the same thinking when the most conservative Muslims decide that a husband has a right to deny his wife the freedom to get a drivers license? Or to forbid her to travel unless accompanied by a male relative? (How about infibulation?) And can enforce those paternalistic rulings with physical force?

    The law applies equally to everyone. There’s no opt-out.

  • PD Shaw

    Opposition to polygamy was a staple of the anti-slavery movement. They were seen as similar concepts. Of course, the anti-slavery movement was primarily religious. IIRC Lincoln read the Book of Mormon before signing that law and satisfying himself that it was Constitutional, again very likely seeing it as an extension of his commitment to reduce the spread of slavery and federal control over the territories (in opposition to the Dred Scott ruling). He did apparently tell someone though that he would leave Brigham Young alone if he left him alone, i.e. Lincoln was not going to enforce it so long as the Mormons didn’t take sides in the conflict.

  • sam

    @PD
    “Holbo is already off on the wrong foot by stating that religious liberty is an individual liberty. The First Amendment does not say anything about individuals”

    Holbo is making a philosophical point, e.g., the church cannot take communion, only individuals can.

  • Drew

    “But, since it would be free otherwise, by law, the church groups are, in effect, imposing a ‘sin’ tax, to express religious disapproval of what these individual are up to. Surely that’s a violation of religious liberty: to wit, the right not to regard being on the pill as sinful. ”

    Holbo had me somewhat interested until this piece of pure crap.

    I’m agnostic. I really don’t have a dog in this hunt other than intellectual honesty, and the notion that this case could be applied more broadly. The notion that an employer be required to fund for employees outside of religious philosophy or simply of free will is just preposterous. What next? Boston employers must fund Red Sox tickets?

    Michael – I think you make a horrible mistake when you devalue the issue from religion to politics. As I said, I have no religious dog in the fight, but when you pit politics vs liberty you also pit the prevailing mob mentality against principle.

    And you have an ally here on the the horrible record of the church and child abuses (a topic for another day) but that simply is not a predicate for an action that no doubt will be applied outside of the church and is an unwarranted expansion of government.

  • Drew

    A kosher meatpacker still has to follow sanitation standards set by the feds, even when they answer to a higher authority.

    This is just simply misguided. No one is suggesting that the church should be absolved of providing tainted food to paritioners. But they shouldn’t have to pay for your porn, either. That’s a private matter.

  • sam

    “I’m agnostic. I really don’t have a dog in this hunt other than intellectual honesty”

    Why don’t you ask your daughter what she thinks?

  • Drew

    “Why don’t you ask your daughter what she thinks?”

    Inane, but in no way shape or form surprising.

  • sam

    Hey, it’s a legitimate question. After all, she, and other women, are the ones to be directly affected by whatever policy is arrived at. Not you or me or Michael, or any other male in the country. I’d think a father would be interested in his daughter’s opinion.

  • michael reynolds
  • sam

    As for this:

    “The notion that an employer be required to fund for employees outside of religious philosophy or simply of free will is just preposterous. ”

    Consider this:

    Start with the assumption that ObamaCare is repealed, in its entirety, tomorrow. The day after tomorrow Abdul Hussain, owner and CEO of a large private firm with 5,000 employees, announces that his firm will no longer offer employees health insurance that permits women to visit male doctors or male employees to be treated by female doctors. This is a newsworthy event, and the day after the day after tomorrow Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder both offer the opinion that this is a form of illegal discrimination and that if it’s not already illegal it should be made illegal. Will Mitch McConnell and other congressional Republicans stand up for Hussain’s “freedom of conscience” in this case? Will my conservative Twitter followers?[Yglesias]

    I’d bet not.

  • michael reynolds

    Drew:

    This is just simply misguided. No one is suggesting that the church should be absolved of providing tainted food to paritioners.

    That has to be deliberate misunderstanding on your part. There is one law in this country. We don’t have separate systems for each denomination. There is not a Mormon law, a Jewish law, a Catholic law, a Muslim law. There is law.

    What these bishops — this collection of criminals — wants, is to be exempt because they — but not their parishioners — don’t like the law. They want to substitute their religious insight — again, an insight in no way accepted by their own co-religionists — for the law that applies to everyone else. They want special Catholic law. Handed down by them. And so we all have to snap a salute and say “Amen.”

    As I pointed out: I can’t wait to hear what guys like you have to say when we substitute mullahs for bishops.

  • Drew
  • Drew

    I have to go right now, but I’ll be back, you no good ignorant……

    Let’s reverse it. Suppose employees were compelled to provide funding of handguns to all employees. how would you feel?

  • michael reynolds

    Let’s reverse it. Suppose employees were compelled to provide funding of handguns to all employees. how would you feel?

    Would I argue that certain denominations did not have to comply while others did? No. Of course not.

    The issue is not the mandate, that’s a separate matter. The issue is whether we have a system of law, or a system of laws-unless-you-disagree. An opt-out system of law. Because if that’s the case then I’m pretty sure my new religion doesn’t think I can be forced to drive my car at some arbitrary speed limit. I’m opting out of traffic laws as a matter of conscience.

    Now, can these things occasionally be fudged, as Lincoln did with Brigham Young? I’m a pragmatist. But as a matter of principle: one nation, one law.

  • Icepick

    There is one law in this country.

    No, there is a multitude of bodies of laws in this country. And even within one body of law many laws have built-in exemptions that exclude certain categories from particular laws. For example, property tax laws often don’t apply to religious institutions. One person killing another isn’t always murder, even if done with intent. Tax laws of every kind have exemptions built into them to shield favorite behaviors, people, corporations, vices from the deleterious effects of those taxes. Those with money and influence are often exempt from ANY law enforcement efforts. And so on and so on.

  • Icepick

    As I sit here I am subject to at least four different bodies of law that I can think of. No, make that at least five. And I’m not even trying to think of them, those are just the ones right off the top of my head. I am subject to the laws of:

    1. The United States of America
    2. The State of Florida
    3. Orange County, Florida
    4. The Saint Johns River Water Management District
    5. The State of West Virginia
    6. Lewis County, West Virginia

    So make it six bodies of law (it’s like the freakin’ Spanish Inquisition) that I am subject to either wholly (#s 1-4) or partially (#s 5 & 6). And that’s without getting off my ass in Pine Hills, Florida. If I start moving around I end up getting into other kinds of legal jeopardy.

  • steve

    @PD- Do we need to prove harm in this case? Insurance will actually cost less if contraceptive coverage is included. The church will be paying less for their insurance if contraceptives are included, but they may still be offended for some reason. Is there a constitutional right to not be offended?

    Steve

  • Icepick

    Insurance will actually cost less if contraceptive coverage is included.

    So why haven’t more private insurance companies (and self-insured companies) provided contraceptive coverage for their covered employees?

  • PD Shaw

    @steve, given that the Catholic hospitals are mostly, if not all, self-insured, I’m not sure why it would matter if they are operating against self-interest. They were arguably doing that last year by not providing this coverage if it was so desirable.

  • So why haven’t more private insurance companies (and self-insured companies) provided contraceptive coverage for their covered employees?

    And why don’t insurance companies require such coverage in plans? It’s an interesting question. Possibilities include:

    1. They’re ignorant.
    2. They’re wrong.
    3. Inertia
    4. The cost savings are non-existent or exaggerated.

    Others?

  • PD Shaw

    @michael, religious bodies get tons of exemptions in our system. I’ve read more pieces about how these exemptions are hallowing out local government than I do read, as I suddenly have in the last week, surprise that these exemptions exist.

    Obama just lost a unanimous Supreme Court case about the religious exemptions from the Americans with Disabilities Act. Religious entities are winning cases around the country on their exemption from paying unemployment insurance. I would not at all be surprised that a kosher meatpacker is partially exempt from regulations that apply to other meatpackers; frankly I would assume the opposite.

  • PD Shaw

    @Dave,

    5. Required by State Law (unless self-insured)

  • sam

    @PD

    “Obama just lost a unanimous Supreme Court case about the religious exemptions from the Americans with Disabilities Act.”

    Right, but as I said over at OTB when someone cited the case (Hosanna-Tabor Church v. Equal Employment Opportunity Commission):

    I think you’re looking at the wrong case. Employment Division, Department of Human Resources of Oregon v. Smith (494 U.S. 872) is the one to consult, here. And Scalia wrote the opinion, which asserted that religious liberty is an insufficient ground for being exempt from laws:

    To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself

    Hosanna-Tabor Church does not undo Smith in a way that should give comfort to the bishops. Justice Roberts wrote:

    The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) , precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted).

    It is true that the Congress passed the Religious Freedom Restoration Act in an attempt to undo the ruling in Smith(because of the facts in the case, some have called it the “Indian Peyote Law”). The Court ruled that law unconstitutional as applied to the states (hence 28 impose the birth control mandate on Catholic hospitals, etc.), but not as applied to the federal government. The law requires that federal law not be a substantial burden on religious practice; that it be consistent with a compelling state interest; and that it be narrowly constructed to satisfy that interest.

    It might be difficult for the bishops to successfully argue that the compromise offered by the administration does not satisfy the three-part test of the RFRA.

  • steve

    6) Insurance plans that do not cover deliveries/abortions would have no incentive to offer contraceptive coverage.

    Steve

  • PD Shaw

    I may be misreading steve’s point, but I will point out that where I work, there is no insurance coverage for childbirth. Where my wife works, which is for a non-religious hospital system, such coverage is extra. IIRC it nearly doubles the monthly premium for a woman in her prime childbearing years.

    Contraception is not an insurable risk in the sense that it is not premised on the occurrance of an unplanned event. I would assume most insurance companies don’t see this as what insurance is about. It drives up the cost, and unless specifically requested by the consumer, it doesn’t attract the customer.

    There is a difference between pricing for risk and for planned events. The insurance company won’t stop people from becoming pregnant by giving them partial payment towards birth control if they are planning to become pregnant or are reckless. All they can probably do is pass the cost onto the insured and if allowed, pass it on to young women.

  • PD Shaw

    steve, beat me to it.

    @sam, an almost unanimous Congress disagreed with Scalia, and there lies the issue, both political and statutory.

  • michael reynolds

    Others?

    They’d rather save a dollar today than two dollars later?

  • I care little about the religious opinions of the the hierararchy of the Catholic church. I’m not Catholic.

    I do care about birth control, which I’ve used successfully in one form or another for more than 40 years.

    If this becomes a political point, I’ll weigh in with women like me.

  • steve

    ” IIRC it nearly doubles the monthly premium for a woman in her prime childbearing years.”

    It is a prime driver of our insurance costs.

    Not to pester you PD, but since you are the lawyer, am I wrong of thinking of this as a civil suit? Regardless of what the church is doing now, dont they have to soem kind of damage to show in this case? If the insurance company wants to offer contraceptives to lower costs, if employees want to use them, what is the harm to the church? In the case of self insured hospitals, they will see lower costs. I fail why to see why the costs of more expensive insurance should be passed onto employees because of their choice of faith, ie being non-Catholic.

    Steve

  • Putting everything on “the Pill” sets me off, too. I used the pill for a short period before I used an IUD. That was my form before I met my husband, who had a vasectomy when I met him nearly 19 years ago.

  • Drew

    I care little about the religious opinions of the the hierararchy of the Catholic church. I’m not Catholic.

    I do care about birth control, which I’ve used successfully in one form or another for more than 40 years.

    If this becomes a political point, I’ll weigh in with women like me.

    In between planes. Really, Janis? Have i missed your point? In a free society y ou are perfectly capable of choosing any form of contraception, or not, you choose. Can you tell me whatlegitimate role government has here? This is classic government intrusion. Suppose an alternative government view came into vogue………and restricted contraception?

  • michael reynolds

    This is not Catholics vs. the Feds or an assault on religious liberty. The majority of Catholics support the Obama position. As do a number of Catholic institutions:

    Washington, DC – The Association of Jesuit Colleges and Universities (AJCU) acknowledges and appreciates the compromise that President Obama has made to accommodate religious institutions in regard to the birth control mandate under the Affordable Care Act. We commend the Obama Administration for its willingness to work with us on moving toward a solution, and we look forward to working out the details of these new regulations with the White House.
    . . .
    “Sister Carol Keehan heads the Catholic Health Organization. She says the compromise “has responded to the issues we identified that needed to be fixed.”
    . . .
    “Catholics United has been calling on both sides of this heated debate to work towards today’s win-win solution,” said James Salt, executive director of Catholics United. “President Obama has shown us that he is willing to rise above the partisan fray to deliver an actual policy solution that both meets the health care needs of all employees and respects the religious liberty of Catholic institutions.”

    This is not Catholics, this is the bishops, as thoroughly discredited a bunch of men as can be found anywhere. Their claim to moral authority is laughable. Their influence over their own fellow Catholics is negligible. Their standing as officers in the church derives from a non-elected hierarchy led by a foreign head of state.

    This is not a fight between the Obama administration and Catholics. This is a fight between the Obama administration and most Catholics on one side, and what has amounted for decades to a criminal conspiracy to protect rapists on the other. If those old men want a fight on contraception, fine, let’s have that.

  • michael reynolds

    oops.

  • Like Rick Santorums’s?

  • Drew, I’m a woman. I have paid for contraception. But when the cost of an average intrauterine device has popped from $300 to $800 dollars, I need to take a loan.

  • Andy

    I think most are missing the big picture here, which is that this is a side-show for bigger problems in our health care system. Matt Yglesias makes a good point:

    An underplayed angle in all this is that it highlights the extreme awkwardness of trying to build a health care system around a set of subsidies and regulations on employers. If people’s health care coverage was instead some blend of things they paid for out of pocket and things the government pays for as a social service, then we’d just be having an argument about whether or not the government should pay for women to get free or discounted contraceptives.

    “Awkward” is way too charitable a word in my view. Frankly, I think people should be worried over the precedents these fights over federal authority could set, but everyone seems focused on achieving the tactical victory, whatever the cost. Whoever “wins” it’s a temporary victory until a future administration decides to interpret the regulations differently. To me this is just another example for why it is so important for us to abandon employer-based health care and reform the entire system.

  • PD Shaw

    steve, its my understanding most insurance policies did not provide contraception coverage until women’s groups began lobbying the states to mandate it. These are new developments. The SCOTUS ruled in a 1976 case, General Electric Co. v. Gilbert, that an employer didn’t discriminate by not offering contraception coverage. There was a more recent Eighth Circuit Case a few years ago that reached that same conclusion, pointing out that the policies were gender neutral because they didn’t cover condoms and vasectomies. One underlying problem I believe is that courts are reluctant to mandate aspects of employment benefits when the benefits themselves are optional; otherwise the employer might just drop the coverage (or the more common dispute, the pension).

  • sam

    Actually, that’s not quite right, PD. In GE vs. Gilbert, the Court ruled that GE did not discriminate against women by not offering insurance coverage for pregnancy-related disabilities. Contraception is not mentioned anywhere in the opinion. The Eighth Circuit case, Standridge v. Union Pacific Railroad Company is binding only the states of that circuit, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. (Interestingly, Arkansas, Iowa, and Missouri have the employer mandate in place, with only Arkansas allowing a religious exemption [Source] ) FWIW, Union Pacific RR added the coverage subsequent to the litigation. Outside of the Eighth Circuit, the EEOC ruling is still applicable. Here’s a story on it.

    Most of Obama’s “Controversial” Birth Control Rule Was Law During Bush Years:

    President Barack Obama’s decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.

    Despite the longstanding precedent, “no one screamed” until now, said Sara Rosenbaum, a health law expert at George Washington University. [Not entirely accurate, as we saw above.]

    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.

  • sam

    Steve Taylor has a nice post over at OTB on the current state of the law. Pretty informative, and is a corrective to something I wrote above — the SCOTUS ruling in GE vs. Gilbert was reversed via legislation.

    In 1978 Congress amended Title VII of the Civil Rights Act of 1964 to enact the Pregnancy Discrimination Act (PDA) (P.L. 95-555, 92 Stat. 2076). This act was passed to reverse the Supreme Court’s decision in General Electric Company v. Gilbert (1976) in which the Supreme Court held that Title VII’s prohibition against “sex” discrimination does not include a ban on pregnancy-based discrimination. Title VII generally bans sex discrimination in employment. By amending Title VII, Congress extended that prohibition to include pregnancy-based discrimination. In Gilbert, the Supreme Court held that General Electric’s disability plan did not discriminate against women in violation of Title VII when it provided coverage for virtually all nonoccupational illnesses and accidents except pregnancy. Quoting analysis that it had used in a previous constitutional law decision, the Supreme Court explained that General Electric’s plan did not constitute sex discrimination because “the program divides potential recipients into two groupsâpregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes” (Geduldig vs. Aiello [1974]). [Pregnancy Discrimination Act (1978)

  • I do have problems with mandating that insurance companies cover, in my case, an elective intervention, forget the bishops.

Leave a Comment