On The Contraception/Religious Freedom Issue

Okay gang, here we go.

[credit: Susan Walsh/AP photo]
I must admit that I hadn't really been following the kerfluffle about the recent Department of Health & Human Services (HHS) mandate. Honestly, I didn't get what all of the fuss was about.

But, because this topic has completely dominated much of the 2012 election coverage (?) lately, I decided to take a look at things.

Firstly, despite all of the hyperbole that is being thrown about, what is the actual policy?

This is from Kathleen Sebelius' statement on the new rule:
[T]he Department of Health and Human Services issued an interim final rule that will require most health insurance plans to cover preventive services for women including recommended contraceptive services without charging a co-pay, co-insurance or a deductible. The rule allows certain non-profit religious employers that offer insurance to their employees the choice of whether or not to cover contraceptive services. Today the department is announcing that the final rule on preventive health services will ensure that women with health insurance coverage will have access to the full range of the Institute of Medicine’s recommended preventive services, including all FDA -approved forms of contraception. Women will not have to forego these services because of expensive co-pays or deductibles, or because an insurance plan doesn’t include contraceptive services. This rule is consistent with the laws in a majority of states which already require contraception coverage in health plans, and includes the exemption in the interim final rule allowing certain religious organizations not to provide contraception coverage. Beginning August 1, 2012, most new and renewed health plans will be required to cover these services without cost sharing for women across the country.

After evaluating comments, we have decided to add an additional element to the final rule. Nonprofit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan, will be provided an additional year, until August 1, 2013, to comply with the new law. Employers wishing to take advantage of the additional year must certify that they qualify for the delayed implementation. This additional year will allow these organizations more time and flexibility to adapt to this new rule. We intend to require employers that do not offer coverage of contraceptive services to provide notice to employees, which will also state that contraceptive services are available at sites such as community health centers, public clinics, and hospitals with income-based support. We will continue to work closely with religious groups during this transitional period to discuss their concerns.

Scientists have abundant evidence that birth control has significant health benefits for women and their families, is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women. This rule will provide women with greater access to contraception by requiring coverage and by prohibiting cost sharing.

This decision was made after very careful consideration, including the important concerns some have raised about religious liberty. I believe this proposal strikes the appropriate balance between respecting religious freedom and increasing access to important preventive services. The administration remains fully committed to its partnerships with faith-based organizations, which promote healthy communities and serve the common good. And this final rule will have no impact on the protections that existing conscience laws and regulations give to health care providers.
My emphasis.

So, as I understand this debacle, HHS is mandating (under the Affordable Care Act -- or "Obamacare" as opponents will call it) that all employers provide co-pay free contraceptives to their employees. While there is an exception for religious organizations, that exception does not extend to religiously affiliated organizations.

Perhaps not-so-shockingly, some people are pissed:
The Obama administration's decision requiring church-affiliated employers to cover birth control was bound to cause an uproar among Roman Catholics and members of other faiths, no matter their beliefs on contraception.

The regulation, finalized a week ago, raises a complex and sensitive legal question: Which institutions qualify as religious and can be exempt from the mandate?

For a church, mosque or synagogue, the answer is mostly straightforward. But for the massive network of religious-run social service agencies there is no simple solution. Federal law lays out several criteria for the government to determine which are religious. But in the case of the contraception mandate, critics say Health and Human Services Secretary Kathleen Sebelius chose the narrowest ones. Religious groups that oppose the regulation say it forces people of faith to choose between upholding church doctrine and serving the broader society.

"It's not about preventing women from buying anything themselves, but telling the church what it has to buy, and the potential for that to go further," said Sister Carol Keehan, president of the Catholic Health Association, representing some 600 hospitals.
Again, my emphasis.

And here is where I get befuddled; what is Sister Keehan talking about?

While the Catholic Health Association is surely affiliated with the Catholic Church, the last time I checked a hospital is not a house of worship.

Moreover, the fuss that is being made regarding this mandate appears to me to be nothing but hot air. As it turns out, there doesn't appear to be anything of real controversy. These issues have already been dealt with in the courts:
[E]mployers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.

Here's how the EEOC put it at the time: "The Commission concludes that Respondents' exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes."

But it's not only the EEOC that has ruled on the issue. More than half the states have similar "contraceptive equity" laws on the books, many with religious exceptions similar or identical to the one included in the administration's regulation.
There are now lawsuits challenging the constitutionality of the policy, including a new one filed on behalf of the religious television network EWTN. But the exemptions have already been tested in court, at least at the state level.

In 2004, the California Supreme Court upheld that state's law, in a suit brought by Catholic Charities, on a vote of 6-1.

The court ruled that Catholic Charities didn't qualify as a "religious employer" because it didn't meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):
  • The organization's primary purpose is "the inculcation of religious values."
  • It primarily employs people of that religion.
  • It primarily serves people of that religion.
  • It's a registered nonprofit organization.
Two years later, in 2006, New York's top state court rejected a claim by Catholic Charities and several other religious groups that the state's contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups.

"When a religious organization chooses to hire nonbelievers, 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," the justices wrote.
So, that takes care of that.

But, what is of greater concern to me is the ridiculous hyperbole that we're hearing from Republicans like Newt Gingrich, Mitt Romney and Rick Santorum -- not to mention the right-wing blogosphere.

Newt is decrying that Obama is infringing on religious liberty.

Romney said, "We have found from liberals across the country an effort to impose their will on religious organizations and on the population at large, and that is something we have to fight at every turn."

And Rick Santorum is really no different: "[The President is] now telling the Catholic Church that they are forced to pay for things that are against their basic tenets and teachings. It's not about contraception. It's about economic liberty."

Look guys, we get it; you don't like Obama or "Obamacare" and you want to make the President a one-termer. Shocking.

But, here is the question that continues to rattle around in my puny brain: Where were all of this "religious freedom" rhetoric during the Park51 debate? What is the Park51 Project you say?

You might remember it as the "Ground Zero Mosque". Yeah. Many of the same folks who are crying foul over the HHS mandate are the same people who wanted to stop -- at all costs -- the so-called Ground Zero Mosque from ever being built. How's that for some delicious hypocrisy for you?

But, back to the task at hand.

I understand that contraception is a hot-button issue for many religiously-minded folks. I get that. If the HHS mandate was telling a church, of any faith, that they were being forced to do something that was contrary to their religious tenets, then I would be pissed.

What I don't understand is why everyone is so up-in-arms over a religiously-affiliated organization -- and the keyword here is affiliated -- having to provide certain benefits to their employees.

As it happens, TPW was formerly employed by a small, private Catholic-affiliated college. Ostensibly, this type of institution falls under the auspices of what so many conservatives (and some liberals too) are saying should not have to provide contraception options for their employees. And yet, when TPW worked at this small college, she was not (and still is not) Catholic. Nor were the majority of her co-workers, be they faculty or staff. Indeed, many of the students at this particular institution were of a faith other than Catholocism.

I would argue that the Catholic church -- the religious organization itself -- employs more actual Catholics than its' religious affiliates (schools, hospitals, etc.), while the latter employs more of a mixture of faiths (and non-believers too).

For an employer to foist its belief system onto its employees strikes me as a bit odd. If I were interviewing for a job and the person sitting across the desk said, "hey, you'll need to sign a statement of faith", I would seriously re-consider working for that person or organization.

But that's just me.

Now, apparently all of this blather appears to be for not; the President is trying to be more, errr, inclusive:
President Barack Obama announced a compromise Friday in the dispute over whether to require full contraception insurance coverage for female employees at religiously affiliated institutions.Under the plan, religiously affiliated universities and hospitals will not be forced to offer contraception coverage to their employees. Insurers will be required, however, to offer complete coverage free of charge to any women who work at such institutions.
Or, would it be less inclusive? Ugh.

Honestly, I'm not sure who looks more ridiculous; the President, or the Catholic Bishops that are making a stink.