The various organizations that have sued the Obama Administration, claiming that the birth control benefit in the Affordability Care Act violates the First Amendment and the Religious Freedom Restoration Act, are touting arguments about religious liberty that are intellectually dishonest as well as wholly lacking in common sense.
These arguments prioritize the “religious freedom” to deny healthcare benefits to women over the right of women to access such healthcare benefits. These arguments also dismiss out-of-hand the compelling interest in ensuring that women have access to affordable contraception, and are callous and dismissive of women’s health concerns and needs. (Whether or not ensuring access to contraception is a “compelling interest” is crucial to any legal inquiry, as I explained in my post about the ruling in the Hercules case.)
A review of the standard intellectually-bereft religious liberty arguments set forth by organizations protesting the birth control benefit, as well as by right-wing pundits and policy analysts, illustrates the dismissiveness with which women’s health rights are viewed.
Writing for the National Center for Public Policy Research in an article entitled “The Birth Control Mandate is Unconstitutional,” Horace Cooper exemplifies the intellectual dishonesty that drives the religious conservative efforts to convince the public that the birth control benefit is horribly unconstitutional and unlike any violation of religious freedom perpetrated against God-fearing folk since the dawn of time:
The Catholic Church, to take an obvious example, requires that “human life must be respected and protected absolutely from the moment of conception.” A papal encyclical on the subject prohibits “direct interruption of the generative process already begun,” “sterilizations,” and “any action which either before, at the moment of, or after sexual intercourse, is specially intended to prevent procreation…” But the HHS mandate demands that Catholic schools, charities, and hospitals, for example, must provide their employees with health insurance plans that pay for contraception, sterilization, and even abortifacient drugs such as insurance plans that pay for contraception, sterilization, and even abortifacient drugs such as Plan B – a demand that effectively forces Catholics to violate either their conscience and their religion, or federal law.”
In dismissing the notion that the interest served by the birth control benefit is compelling, Cooper ignores that the purpose of the birth control benefit is to reduce discrimination and inequality in healthcare services. He simply does not care.
While most would agree that providing women with equal and affordable access to healthcare is a compelling interest, Cooper claims says that the “administration’s only interest appears to be in providing women with greater access to contraception. Hardly compelling.” He then goes on to claim that the Administration’s “alleged interest” [sarcastic quotes!] in “greater access to contraception” [more sarcastic quotes!] is to provide free contraception. Of course, that’s what he thinks. That’s what most of these clowns think. It’s the old “free pills to loose women” meme that underscores any discussion of contraception access.
Cooper then goes on to spout traditional right-wing talking points about the availability of contraception at every drugstore for a low-low price. Drugstores practically give it away! Cooper implies that women who believe that they should have access to contraception in employer health insurance plans that they are paying for through labor and premium payments should quit complaining. Why should employers have to offer contraception and thus commit themselves to Hell when sluts can just go to the drug store?
The birth control benefit does not violate religious liberty because nothing in the Obama Administration’s policy forces anyone to use birth control. What the birth control benefit does is offer women a choice as to whether or not to use contraception. And it is the individual choice that should determine, in the eyes of the Church, whether or not a woman has committed a sin.
Catholic and other religious institutions and organizations are stripping women of the choice to use birth control or not by arguing that the sin is in the provision of birth control, not the choice in whether or not to use birth control. (And these arguments may actually violate church doctrine, as I wrote here.) But the sin cannot be in offering women the choice. Certainly, these religious institutions employ women and men who participate in any number of sinful behaviors. If I recall correctly, premarital sex is also a sin. Few would argue that such organizations could outright refuse to pay men any wages out of concern that unmarried men would go out and choose to purchase condoms, after which they would choose to have premarital sex.
This rigorous effort to block the birth control benefit is a rather transparent attempt by Catholic and other organizations to compensate for the fact that members of their flock are not following the Catholic moral code being set for them from on high. Catholics are going rogue, as evidenced by statistics showing that errrrrybody (give or take a few) thinks birth control is morally ok. (The actual number is 82%, according to a Gallup poll conducted in May 2012.) Because the Church can’t seem to control what Catholics do, the Church has decided upon a different tactic – they are controlling what women, Catholic and non-, have access to. And the Church is using increasingly strained arguments to do so.
Alarmingly, it’s not just Catholic organizations anymore making these strained arguments. It’s spreading to for-profit companies as well as non-Catholic groups and organizations (Hobby Lobby, for example is a for-profit non-Catholic organization.) These organizations are claiming that their businesses were built with Jesus’s love and that they, too, should be exempt from providing a full range of healthcare benefits to women.
The organizations balking at the birth control benefit are arguing that the mere provision of health insurance plans offering contraception (plans underwritten by third-party health insurance companies, mind you) violate the religious conscience of not just the owners and operators of the organizations, but also violates the religious conscience of the very organizations themselves – as if the organizations are sentient beings.
But common sense dictates that organizations do not have a religious conscience. Brick and mortal buildings don’t have feelings. Organizations (like certain Catholic hospitals, schools, and charities) may be comprised of individuals who all share a common religious set of values, and in those cases, the Obama Administration has excused them from compliance with the policy. But organizations like Hobby Lobby are really stretching the bounds of credulity with their claims, and courts are starting to notice, as evidenced by Judge Heaton’s (a Bush appointee) ruling in the Hobby Lobby case:
General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters … which is not the province of a general business corporation.
Hobby Lobby has, of course, appealed Judge Heaton’s ruling, and given that the Eighth Circuit just granted a stay pending an appeal of the lower court’s decision in O’Brien and granted an injunction blocking operation of the mandate, Hobby Lobby very well may succeed. (I wrote about the O’Brien
Still, if you try to convince me that a store like Hobby Lobby is going to have its feelings hurt if the law requires it to provide to its female employees health insurance plans that offer contraception coverage, I’m going to roll my eyes at you every single time.
[cross-posted at ABLC]
*** Edited to correct the procedural posture of the O’Brien case.