An Acceptable Compromise? Let Us Hope

Cross posted from The Stars Hollow Gazette

President Barack Obama presented a compromise addressing the objections of the religious right, so-called pro-lifers and extremest conservatives to the provision in Affordable Care Act requiring religiously affiliated employers to provide contraceptive coverage to women. Women will still be guaranteed coverage for contraceptive services without any out-of-pocket cost, but will have to seek the coverage directly from their insurance companies if their employers object to birth control on religious grounds. Insurers will absorb the cost insuring that access to birth control as well as cancer screening, mammograms and check ups would remain free to all women.

Planned Parenthood and the Catholic Health Association both expressed pleasure about the new plan, however, there were still objections from the Catholic Bishops and right wing politicians who vowed to continue the war on women.

Many of those voicing objections to this provision have cited the 1st Amendment stating that forcing churches to provide something that is opposed by their tenets violates their 1st Amendment right to freely practice their religion. But does it? The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Contraception is not about freedom of religion, as Scarecrow at FDL so eloquently explains:

What’s happening here is that the government has chosen to adopt a rule relating to health care.  Proponents often say this, and some media may dismiss this as ducking the religious issue, but it’s not.  It’s consistent with what we’ve done for decades.  Contraception is about health care, mostly women’s health care, and sometimes life-saving health care; but it’s clearly health care.  When government addresses contraception, it does so for health reasons, not religious reasons.  Government can adopt rules to protect women’s health and safety without violating the First Amendment.

What about the “establishment clause”?  This is how the bait and switch happens.  The Catholic Bishops do not believe contraception should be used; it shouldn’t be available at all.  They don’t mean just unavailable to Catholics; they mean not available to anyone. They want the legal rule to be: no contraceptives for anyone, so no insurance coverage for contraception services for anyone.

Religious freedom says they are free to believe contraception is wrong, that it violates their religion.  Government can’t force them to believe otherwise; it can’t force them to exercise a religion they don’t believe, except that government can, for health and safety reasons, require everyone to obey reasonable rules to protect peoples’ health and safety, even if some believe such regulations are inconsistent with their religious beliefs.

Religious freedom doesn’t mean the Catholic Bishops, or any other religious leaders, have the right to impose what they believe on everyone else.  When we cross over to the realm of what the rules should be for everyone, and the pushing is coming from a religious purpose, it’s more likely we’re talking about that other clause, the establishment clause.  And that’s exactly where the Bishops are.

Those who oppose any contraception insurance coverage want to prevent the government from having a rule that requires contraception, or have it adopt a rule prohibiting the coverage of contraception.  And they want this not for health/safety reasons, but for declared religious ones.  In other words, they want a government rule that imposes their religious beliefs on everyone else.  That’s not about the “free exercise” clause; that’s “establishment of religion.”

Constitutional lawyer David Boies, who represented VP Gore and successfully opposed California’s Prop 8. appeared with Lawrence O’Donnell on The Last Word, explaining the constitutionality of the birth control mandate.

3 comments

    • TMC on February 11, 2012 at 5:32 pm
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    • TMC on February 11, 2012 at 5:46 pm
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    and the religious right. That’s how some see this and after reading this from article by Charles Pearce in Esquire and re-listening to Boies’ interview, I agree that constitutionally it’s the Catholic Church who is in violation of the 1st amendment by forcing their religious doctrine on the nation and Obama has enable them:

    The Church has claimed – and the president has tacitly accepted – the right to deny even its employees of other faiths the health-care services of which it doesn’t approve on strictly doctrinal grounds. That is not an issue of “religious liberty.” That’s the enshrinement of religious thuggery in the secular law. By accepting that frame, the president has left himself dependent on the avaricious to bail him out against the arrogant. This is not a comfortable place to be.

    And that’s not even to get into the obvious fact that women’s-health issues have been treated as little more than a bargaining chip by a Democratic president. Again.

    From Riverdaughter at The Confluence

    This issue is going to look different to you depending on your gender. If you’re male, or simply a loyal Democrat who doesn’t want Republicans to win this fall, you’re probably all “what’s the big deal? He helped out the Liberal Catholics who were looking for cover. Slam dunk! Partay!”. If you’re a woman, you see this as capitulation to the very idea that anyone needed cover to do the right thing. It just makes it necessary to jump through yet another hoop to get the medical services you want and need. It’s another fucking bothersome workaround in a world of workarounds. [..]

    We are forced to workaround and workaround and workaround for services and resources and recognition. It’s absurd that this decision by Obama to give liberal Catholics is treated as some kind of victory for him and women. The problem is between liberal Catholics and their anachronistic, unrealistic, celibate, patriarchal church hierarchy. The rest of American women don’t care what Catholics do and we should not be under any obligation to give them cover and make it easy for them while making it harder on ourselves.

    But it’s worse than that. Because now that Obama has allowed religious liberty to creep into the election year issues, he has taken the bait for the religious conservatives to push their agenda and for Republican operatives to use it as a way to split the Democratic base. Once again, Obama has failed to treat women as adults and equal citizens who shouldn’t be forced to endure yet another workaround to appease some religious institution. And that religious institution is even more despicable because they know that there’s no way to enforce their rigid belief system on their own female adherents much less the rest of the country’s women. It’s simply an inconvenience that must be endured so that some liberal catholics can save face.

  1. of the outrageous to divert attention away from the larger picture of crappier health care plans for all which government forces you to buy.

    At the peak a choice of five health plans used to be a possibility.  Each plan came with a whole book of coverages, doctor and hospital lists.

    This eventually dwindled down to a single insurance company.  This one.  See William McQuire exit compensation

    http://en.wikipedia.org/wiki/U

     

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