Short memories make for bad public policy. I can’t help but reflect on that.
As I write this, Congress is about to take a vote on doing something-or-another with Obamacare: repeal, replace, whatever. I’m not sure they know what they’re doing, despite good intentions all around. In all the tinkering, I am not hearing much from Members of Congress about what made the “Affordable Care Act” utterly unacceptable to so many Catholics, including me: the contraceptive mandate. Continue reading “Undermining the First Amendment in the name of “Health Care””
My mom, God rest her, once quipped that the three biggest lies in the world are “the check is in the mail,” “of course I’ll love you in the morning,” and “I’m from the government and I’m here to help you.” I can add a fourth to the list: “They’re coming for your birth control” – a lie that has gained some currency, as a quick Web search will verify.
Brace yourself for more. A year and a half after the Hobby Lobby cases, the U.S. Supreme Court has announced it is taking up more challenges to the contraceptive mandate of the so-called Patient Protection and Affordable Care Act. (The ghost of George Orwell groans with every repetition of that title. I’ll use “Obamacare,” hardly a slur if the President takes as much pride in the law as he says he does.) The Little Sisters of the Poor, among others, will argue that they should not have to be involved in employees’ decisions to use contraception. The Administration holds an opposing view.
The they’re-coming nonsense ignores a few facts: people who don’t want to pay for someone else’s contraception or abortion-inducing drugs are not “coming to take” them; access does not mean “free”; religious liberty under the First Amendment includes religious practice, not mere freedom to worship – at least until and unless the Supreme Court chooses to eviscerate the First Amendment; Americans with religious objections to contraception (myself, among others) want not to be forced to subsidize or provide it to others.
Recall that in this context, “religious” isn’t limited to Catholic. The Hobby Lobby case was won by evangelical Protestants, and the companion Conestoga Wood Products case involved Mennonites. Recall as well that those cases were decided on extremely narrow grounds, with the Court majority acknowledging that it was not addressing the First Amendment issues raised by the plaintiffs. Instead, the decision rested on a statute, the Religious Freedom Restoration Act (RFRA). It was left to Justice Ginsburg and the other three Justices in the minority to say that the First Amendment didn’t protect the plaintiffs in their claim at issue. One more Justice being swayed to that view could make the Little Sisters’ case what Hobby Lobby was not: a landmark in constitutional law.
I am indebted to SCOTUSblog.com and Helen Alvare, Esq. of Women Speak for Themselves for their research and reports on the cases to be heard by the Court. I am mentioning only a few of the issues. Any errors in the following summary are my own.
The Little Sisters are arguing that their sincerely-held religious beliefs, no less than those of the Hobby Lobby plaintiffs, are protected by RFRA. In order for the federal government to prevail, if the Court limits itself to the actual issue in question, it would have to show that the Obamacare contraceptive mandate and the Administration’s efforts to “accommodate” religiously-affiliated employers do not amount to a burden on the Little Sisters’ free exercise of their religious beliefs. Further, the government would have to show that it has a compelling interest in forcing the Little Sisters to violate those beliefs. It would have to show that there is no other way to get “free” contraceptives to the Little Sisters’ employees.
The federal government is quite comfortable making all those arguments. The President and his HHS secretaries – first Kathleen Sebelius, Obamacare’s virtual doula, and now Sylvia Burwell – will litigate challenges to the mandate regardless of time or cost required.
About that “accommodation” for religiously-affiliated employers: employers who provide health care for workers are supposed to advise insurers, or the agencies administering health insurance, to cover contraception as a “preventive” health care item. To accommodate employers like the Little Sisters, the Administration crafted a regulation that allows those employers to advise the government of its objections to the contraceptive mandate, but then requires the employers to provide the government with all the information it needs to provide contraceptive coverage to employees.
The Administration calls this an opt-out for employers. Nope, assert the plaintiffs. Under the accommodation, the government simply turns around and does the paperwork that makes contraceptive coverage part of the health insurance plan provided by the employer. The employer is thus forced to be a party to providing something in violation of the employer’s sincerely-held religious beliefs. To compound the burden on the employer, there are financial penalties for failure to cooperate with the mandate.
We’ve met you halfway, say the feds. You don’t get to tell us what constitutes a violation of our religious beliefs, say the plaintiffs.
Back to “They’re coming for your birth control”
Nowadays, when I hear anything about a threat to women’s basic preventive health care, I immediately go on high alert. The currency of language regarding health care has become so debased that no one can or should take it at face value. “Threat to basic preventive care” has become code for “someone’s trying to get out of paying for your contraception” – a far cry from denying “preventive” care.
The Little Sisters of the Poor are nuns, for God’s sake (literally). They care for the elderly poor. Their vision statement sounds like something that ought to be encouraged: “to contribute to the Culture of Life by nurturing communities where each person is valued, the solidarity of the human family and the wisdom of age are celebrated, and the compassionate love of Christ is shared with all. ”
These are the women who are challenging the mandate. Theirs is the ministry that will be crippled if they have to pay fines. These are the people the Administration and other mandate supporters want to force into compliance. The Sisters take a vow of obedience, all right, but in doing so the Sisters in the U.S.A. didn’t surrender their constitutional rights.
Most inconvenient truth of all, in the face of the mandate: women aren’t broken and they don’t need to be fixed. Calling contraception “preventive” health care is the same as saying that women in their childbearing years are defective. Treating contraception as a choice, an option, is far different from treating it as a public health imperative.
It just might take a group of nuns to drive that point home.
The national March for Life is organized by a nonprofit business of the same name, which is one of many groups challenging the Obamacare contraceptive mandate (also known as the HHS mandate) in court. March for Life recently prevailed in federal court. Yesterday, the Obama Administration – specifically, the Secretaries of the Treasury and Health and Human Services – filed an appeal.
And by the way, what’s the Treasury secretary doing signing on to the appeal against March for Life? Is that a heavy-handed way of serving notice that the March’s tax-exempt status is on the line here?
This Administration can’t stand the thought of a business owner not paying for or subsidizing an employee’s contraception insurance coverage (with no co-pay), even if that “contraception” is actually abortifacient. Further, the Administration can’t stand challenges from people who believe in the right to live out religious beliefs seven days a week, not just freedom to worship one hour a week. When the Hobby Lobby decision came down, exempting a narrow group of business owners from the mandate, Obamacare apologists whined that employers were making birth control decisions for employees. “Not my boss’s business,” was the cry.
Here’s a cry right back: Not my boss’s problem – and a co-pay isn’t a war.
The Washington Times has a brief story about the Administration’s appeal in the March for Life case. The story quotes the federal judge whose ruling in favor of March for Life – the ruling the Administration seeks to overturn – is at issue: “HHS may be correct that this objection [to the mandate] is common among religiously affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.”
Hobby Lobby should have settled that question. The company isn’t a religious organization, but its owners have religious beliefs that they refuse to shelve in order to accommodate the mandate.
This all started when “contraception” was classified as a preventive service under Obamacare, with no co-pay for the user, and with coverage required under health insurance policies. Why suppression of women’s fertility should be such a federal priority is an argument the President has never successfully made to me. Our federal government is spending money litigating against not only March for Life but other people as well – Little Sisters of the Poor, for example – in a an effort to get them to buy in, literally, to that misplaced priority.
The federal government can litigate indefinitely if the Chief Executive so chooses. Must be nice. The March for Life and fellow mandate resisters aren’t in that position, many of them relying on public interest law firms which themselves rely on donor support. David vs. Goliath, of course.
Why not just go along? Because religious liberty matters. It’s not simply a matter of worship, taking place in a building once a week. The mandate forces the question of how Americans may exercise their beliefs in everyday life. If an American holds the religiously-based belief that contraception and abortion are immoral, can that American be forced to pay for them? How about a business owner who wants to provide employees with health insurance, but on religious grounds wants no part of helping fund contraception and abortion as “preventive care”?
Now, more than a year after the limited but welcome Hobby Lobby victory, those questions are still hanging.
The marriage decision seems to bump into that difference. Here’s something from Justice Kennedy’s opinion, addressing dissenters from the decision. Substitute “abortion rights” or “contraceptive mandate” for “same-sex marriage” and see how it sounds. This statement is now part of constitutional law. If it applies to differing beliefs about marriage, it ought to apply to other issues as well.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
So if “it must be emphasized,” I’ll do so:
…religions, and those who adhere to religious doctrines, may continue to advocate …The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths …
So does “proper protection” mean protecting freedom of worship or freedom of religion? Do “advocate” and “teach” refer to speech and action in the public square, or merely the right to advocate and teach within the walls of a house of worship or a private home? Just how does all this translate into the daily give-and-take of civic action?
It’s not lawyers who have to make these decisions in the first instance. Ordinary citizens (and I count myself as one) going about their business day-to-day are the ones wondering if they have what the Court calls proper protection. It’s fitting that long before the marriage decision came down, the country’s Catholic bishops chose “freedom to bear witness” as the theme of this year’s Fortnight for Freedom.
The Fourteenth Amendment now covers marriage between any two consenting adults. The First Amendment covers religion (or is it worship?), presumably including the religions that hold to one-man-one-woman marriage. So what happens when lawsuits and criminal charges are filed against business owners who decline on religious grounds to participate in same-sex marriage ceremonies? Early signs are not encouraging for the business owners. One can take either side of the proposition that Jesus would bake the cake, and still see that for the people who are now marriage dissenters, Justice Kennedy’s reassurance that they may “advocate” for their view is a little shaky.
Abortion rights rest on a “penumbra” of constitutional rights adding up by some judicial calculus to “privacy.” Abortion dissenters have the First Amendment, including, for those who so choose, a right to pray outside abortion facilities – or do they? New Hampshire legislators seeking to discourage pro-life presence outside abortion businesses could have resorted to any of several methods that have been found to be constitutional. Instead, in 2014, with the full cooperation of the governor, the legislature made it illegal for most people regardless of intention or behavior to stand on public property outside an abortion facility for any reason, at times and locations to be determined by the abortion facilities’ management. Legislators actually left the interpretation and implementation of the buffer zone law up to abortion providers.
To the surprise of no one but the law’s sponsors, the law has been enjoined by a federal judge. It has not yet had a full hearing in court. It’s still on the books, and a repeal effort failed this year. I have yet to hear any of the buffer zone’s fans in New Hampshire announce a change of heart on the basis of Justice Kennedy’s assurance that advocacy of dissent may continue. What’s to stop any legislative body from following New Hampshire’s egregious example of supporting a law to suppress peaceful demonstrations?
The HHS mandate
Obamacare’s HHS/contraceptive mandate is in place, buffeted but not bowed. The President and the members of Congress who passed Obamacare allowed HHS regulations to define contraception as “preventive care.” There are people who own businesses and who out of religious belief do not wish to participate in the provision of contraceptives and abortion-inducing drugs to female employees. In the face of the HHS regulations enforcing the Affordable Care Act, they hold the dissenting view that women aren’t broken and that it’s not “preventive care” for women to be chemically altered. The Administration has issued accommodations in a piecemeal manner to certain institutions dissenting from the mandate, and Hobby Lobby won at the Supreme Court on behalf of owners of closely-held businesses.
Yet litigation goes on, because religious institutions still must wait for a determination that they’re religious enough to be covered under one of the Administrations “accommodations,” and it’s still an open question whether those accommodations are adequate. Are owners of public-stock corporations going to be accommodated? Fines will be punitive for anyone who dissents, sues, and loses. Are dissenting business owners being given proper protection for their advocacy of their beliefs? Or so Justice Kennedy’s words mean must that advocacy remain private?
The Court majority that gave us Obergefell left Americans with much to think about beyond a definition of marriage. At the end of another Fortnight for Freedom, only days after a landmark Supreme Court decision, the religious-liberty landscape remains unsettled. Are Justice Kennedy’s words true reassurance that each American is free to exercise a religion, publicly as well as privately?
There’s a way to divert attention from this question: call marriage dissenters bigots. Say that people opposed to the Affordable Care Act want to deny health care to their neighbors. Claim that opponents of buffer zones are endangering women (never mind that six of the seven plaintiffs challenging the New Hampshire buffer zone law are women). Say anything – just keep that pesky First Amendment offstage.
Justice Kennedy won’t let me. He says the First Amendment gives us all proper protection. We have yet to see what that means.
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The New Hampshire Senate will vote Thursday on a measure designed to shame employers who choose not to play any role in providing contraception to employees. [Note: on March 5, the Senate voted to table the bill.] Senators David Pierce (D-Lebanon) and Martha Fuller Clark (D-Portsmouth) want to make sure the world knows how displeased they are by the Supreme Court’s Hobby Lobby decision, and SB 42 is their megaphone. They need only eleven of their Senate colleagues to join them in order to send the bill over to the House. The Commerce committee has already approved the bill on a 4-1 vote.
The bill has been amended since its introduction, but its essence is intact. If it passes, any employer who wants to provide health insurance as an employee benefit via a self-funded health plan, but who refuses to cover any or all forms of contraception, has to put that refusal in writing on job applications, or include it as a separate notice to be handed out with each application.
Not with each new-hire human resources package – but with each job application. Keeping employers disentangled from employees’ birth control decisions is simply an unacceptable concept to Senators Pierce and Fuller Clark. Apparently, they are not equally offended by insurance plans that fail to cover cancer treatments, or drugs to manage chronic conditions, or therapy for disabled children, or the cost of your bifocals. You might think that applicants ought to be advised of those exclusions in writing before filling out a job application. But no; the only health insurance information Senators Pierce and Clark want to see “prominently displayed” on job applications is a warning that a boss won’t pay for your birth control. Remember that the owners of Hobby Lobby claimed (and won) the right to refuse coverage for only four particular contraceptive methods, all of them abortion-inducing. They apparently cover about sixteen other methods without objection. That’s not enough for the likes of the sponsors of SB 42, who want to marginalize employers who demur even slightly from paying for employees’ birth control decisions. A “Catholic Citizenship News” email from the Diocese of Manchester (N.H.) this weekend took a tone far calmer than the bill deserves. “SB 42’s stated intent is to require employers to specify the details of contraceptive coverage to prospective employees, but based upon the text of the bill and testimony at the hearing, this measure clearly targets employers with religious objections to providing contraceptive coverage.” I was at the hearing, and I can vouch for that. The diocesan email continues: “…[I]f SB 42 becomes law, when individuals apply for jobs with Catholic parishes, schools, or institutions in New Hampshire, their first introduction to our ministries will be a ‘prominently displayed’ notice that the diocesan insurance plan does not cover contraception or abortifacients. As a State, we have been reluctant to place restrictions on employers requiring these types of burdens – additional paperwork or particular forms at the time of hire. It is troubling that SB 42 would create this first mandate that is clearly aimed at employers that decline to offer coverage that includes abortion or other life-denying drugs or devices that violate their moral and religious convictions.” Troubling? That’s one way to put it.