Religious Arguments Against the Birth Control Benefit in the ACA Defy Logic

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.”

Hogwash.

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?

Cooper’s arguments, like those of the organizations that have sued the Obama Administration (Hobby Lobby, Wheaton College, Hercules Inc., O’Brien Industrial Holdings, and others) are nonsense.

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
case here
.)

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.

60 replies
  1. 1
    Mike G says:

    Next step:
    Business owners converting en masse to Christian Science, then claiming it violates their religion to provide any healthcare coverage at all, except “We’ll pray for you”.

  2. 2
    Tara the Antisocial Social Worker says:

    Religious freedom belongs to individuals, period. Not to their employers or to some outside organization that wants the government to play enforcer for them.

    My religious belief is that it’s ok to use birth control. Actually my religious belief is that if you’re not prepared to raise a child, it’s MORALLY BETTER to use birth control.

    Oh, and referring to a contraceptive like Plan B as an “abortifacient” is false witnessing. apparently Horace Cooper’s religion doesn’t have a problem with that.

  3. 3
    EL says:

    @Mike G: or a Jehovah’s Witness owned business that refuses to cover blood transfusions.

  4. 4
    arguingwithsignposts says:

    Religious Arguments Against the Birth Control Benefit in the ACA Defy Logic

    There. I think I tightened that up for you.

  5. 5
    Tara the Antisocial Social Worker says:

    @EL:
    Some of my relatives are Hindu and believe eating meat is immoral. I notice no one’s suggested that employers be able to opt out of covering trichinosis, or maybe even all the effects of a high-fat diet.

    Funny how these “moral” stands always seem to come down to punishing women for being slutty slutty sluts.

  6. 6
    red dog says:

    and people wonder why I am an athiest and it really pisses me off that all the spell checks think religion type should be capitalized. Who decided that and why do you kind folks do so?

  7. 7
    Roger Moore says:

    I think the core belief is that people should be allowed to ignore secular laws because of their religious beliefs. It extends beyond contraception to issues like discrimination against gays and non-coreligionists, opting out of school classes that offend their religious sensibilities, and protecting child raping priests from secular justice. They really think their religious beliefs (but not, of course, those people’s) should be given priority.

  8. 8
    Todd says:

    I don’t have a problem with opt outs for sole proprietorships or small general partnerships. Once you invoke the secular power of the state to do any corporate charter beyond making a church or setting up an integral advocacy or divinical training organization, I think you’re bound.

  9. 9
    Elizabelle says:

    OT: do you all want to feel about 105 years old?

    Led Zeppelin are among the Kennedy Center honorees this year.

    And the surviving members showed up.

    In tuxedos.

  10. 10
    Roger Moore says:

    @Tara the Antisocial Social Worker:

    My religious belief is that it’s ok to use birth control. Actually my religious belief is that if you’re not prepared to raise a child, it’s MORALLY BETTER to use birth control.

    And quite a few Jews will tell you that their religious belief is that abortion is required in cases where a pregnancy threatens a woman’s life. But somehow laws protecting the availability of abortion in those cases, much less ones mandating it, are clearly beyond the pale to the wingnuts. Some religious beliefs are more equal than others.

  11. 11
    Citizen_X says:

    @red dog: Proper nouns.

    @Roger Moore: Funny, the people that think that are the same ones the scream the loudest about OMG SHARIA!

  12. 12
    Roger Moore says:

    @Citizen_X:
    The wingnuts’ problem with Sharia isn’t with the theocratic aspect of it; it’s that its advocates spell God wrong.

  13. 13
    arguingwithsignposts says:

    @Roger Moore: And they speak a different language, and they tend to be darker hues.

  14. 14
    Matthew Reid Krell says:

    It’s really inappropriate to refer to the Eighth Circuit as “reversing” O’Brien when all they did was grant a stay pending appeal. Yes, this court is one of the most conservative courts in the country. Yes, it is possible they’ll rule against the administration, and then we have to sort this shit out again at the Supreme Court.

    But playing fast and loose with the procedural posture of the case to make an unnecessary rhetorical point (that is in fact undermined by the link you provide)? I’m sorry, ABL, I love a lot of your work, but this is too much to let pass.

  15. 15
    Charlie Dodgson says:

    It really is peculiar how the religious liberty of the women is never part of this conversation. “In a world where corporations are people and people are serfs…”

  16. 16
    D. Mason says:

    Here the part that confuses me most in this whole debate. Why the hell do insurance companies even offer policies without contraception?? The cost of birth control compared to the cost of child birth is a joke. For the company paying the bill this seems like a no brainer.

  17. 17
    Baud says:

    I don’t see the First Amendment claim succeeding, but I don’t have a clue about the RFRA.

    If these businesses are successful, I might start the Church of Wall Street to take advantage of the ruling. As the recent campaign has shown us, there are a lot of rich people who will throw money at any grifter with a scheme to lower their taxes and exempt them from regulation.

  18. 18
    The Golux says:

    Providing coverage for contraception has absolutely nothing to do with religious freedom because the money used to buy coverage is NOT THE FUCKING CHURCH’S MONEY. It’s part of their employees’ compensation. If they didn’t provide health insurance, one supposes (or hopes) that their employees’ pay would be higher, and they would get their own insurance (provided, of course, that they are the picture of health). And the church has no authority to dictate what kind of health insurance they get.

  19. 19
    Charlie Dodgson says:

    @D. Mason:

    Companies offer these policies because they have customers who are willing to pay for them, even perhaps at a premium. Remember, in an employer-provided health care system, it’s the employer that’s the customer, not the insured employee…

  20. 20
    Odie Hugh Manatee says:

    Hey ABL, you do know that you could have shortened the title to Religious Arguments Defy Logic and have been even more accurate, right?

    :p

    @arguingwithsignposts:

    Ninja’d! :)

  21. 21

    This is a 200 word letter printed in my very conservative area (my reps have been Cunningham/Bilbray/Issa !) :

    TITLE : Freedom expands choice, choices expand freedom

    One feature of Obamacare is the minimal definition of an insurance policy. (Without such definition, the Republican notion of interstate policy sales is a foolish surefire disaster.) Pregnancy is a medical condition; the ability to manage pregnancy is important. Being pregnant only when desired is certainly an aspect of management. A healthy planned pregnancy and subsequent healthy child is in society’s interests; hence the coverage in minimum definition.

    It’s an unfortunate post-WWII fluke that most Americans are insured through their employment – unlike most of the world. The employer offers the policy – not the care. The policy has coverages used or not used at covered’s discretion. Since a business cannot discriminate, all kinds of people perhaps work there. These people are presented with opportunities and choice – Freedom!

    A religious organization is free to have rules; their followers are also free to follow or not. A business follows civic laws that guarantee Freedom. Jobs are open to all religions. Religions are free to have policies. People are free to join a religion or not, and further, free to follow at their own level. Freedom all around.

    Republicans are making a phoney issue here. Freedom, defined as choice and opportunity, is being expanded.

  22. 22
    Narcissus says:

    Wait you mean to say religion and logic don’t get along

    this clears up so much for me

  23. 23
    Shakespeare says:

    The Hyde Amendment that said abortions could not be funded with Federal funds started all this nonsense. We should never allow special opt-out carve-outs. We either all collectively fund the stuff our democracy voted for, or none of us do.

  24. 24
    ruemara says:

    What about my religious freedoms to use birth control? When does that get to be supported? I kinda hate these clowns.

  25. 25
    WereBear says:

    I posted in the Douthat thread that I stumbled across the Barefood and Pregnant blog, where the woman has four children, she and her husband is stretched thin both emotionally and financially, and what they are offered is Catholic Family Planning; which hasn’t worked for the last two pregnancies.

    And what do the devout Catholics offer her for advice? To remember that suffering now will cut short her time in purgatory, that she shouldn’t be trying to impose any control on her life, and she should embrace “death to self.”

    it’s no wonder the poor woman feels a breakdown is imminent.

  26. 26
    Roger Moore says:

    @ruemara:

    What about my religious freedoms to use birth control?

    You have lady parts, so your religious freedom doesn’t count. Didn’t you get the memo? Oh wait, you have lady parts, so you don’t deserve to get memos, either. Don’t trouble your little head about this; we menfolk will make the right decisions for you./wingnut

  27. 27
    MikeJ says:

    @red dog: Proper names are always capitalized. John Wiles Booth, Adolph Hitler, Pol Pot. It doesn’t mean the subject is nice or good or important, it’s the way you write English.

  28. 28
    Roger Moore says:

    @Shakespeare:

    We either all collectively fund the stuff our democracy voted for, or none of us do.

    And the Hyde Amendment decided that none of us do in the case of abortion. That outcome sucks, but the long-term solution is to convince people that abortion ought to be treated like any other medical procedure.

  29. 29
    Mnemosyne says:

    @Charlie Dodgson:

    It really is peculiar how the religious liberty of the women is never part of this conversation.

    Yep. The basic argument seems to be that corporations and churches have the right to freedom of religion, but there’s no individual right to freedom of religion.

    I have no idea how in the hell that will fly even with the Roberts court, but I guess Fat Tony will figure out some way to argue that the First Amendment only refers to organizations, not individuals.

    @D. Mason:

    IIRC, most (private) insurance policies that don’t cover contraception also don’t cover pregnancy, so basically a woman is on her own for all aspects of childbearing. The rationale is that since men can’t get pregnant, it’s unfair to men to cover pregnancy or contraception.

  30. 30
    kathy a. says:

    @Shakespeare: this is really worth some thought, because i think it’s a correct assessment. and it is wrong wrong wrong. bad policy; entrenched bad policy. it is bad medically, in individual cases that are none of your damned business. it is bad for adult living humans, and their kids.

    it has emboldened the zygote-believers so much that any abortion doctor can expect some shootings, and hope they are not fatal personally or to staff or family.

  31. 31
    JoyfulA says:

    @MikeJ: Wilkes, Adolf.

  32. 32
    kathy a. says:

    obviously, i agree with everybody that someone else’s religious beliefs have no place in their employee’s medical care.

    it’s just a little unnecessary alcohol on the large raw wound that viagra is totally non-controversial, coverage-wise.

  33. 33
    Baud says:

    @Mnemosyne:

    Women are big financial winners in this decision [upholding Obamacare] in other ways. The first is the elimination of gender rating, or charging women more because they’re women, pure and simple. The National Women’s Law Center recently found that in states that haven’t banned the practice, over 90% of the best selling plans charge women more than men, even though only 3% of them cover maternity services. In fact, even when maternity care is excluded, almost a third of plans charge women at least 30% more than men for the same coverage. One plan even charges 25-year-old women 85% more than men. All told, the practice costs women about $1 billion a year.

    That will now become illegal in 2014, after the ACA is fully implemented. Insurers will no longer have free reign to charge women whatever they like for no discernable reason. That extra $1 billion in our pockets sounds pretty good.

  34. 34
    efgoldman says:

    I’m not a lawyer and I don’t play one on TV, but it seems to me that the TeaHadis have the initial tactical edge, at least in the framing. The religious freedom issue should be from the other (Jeffersonian) side. The rest of us are free to not be forced to accept the restrictions of any religion.
    I worry that, by the time these cases get to SCOTUS (and they will, because there will be a contrary decision in at least one circuit) at least one stupid decision will have framed the case using Citizens United as a precedent: SCOTUS ruled that corporations are people; people have an absolute right to religious freedom; so corporations can choose not to allow something morally abhorrent to their religion. It will be very narrowly drawn, and 5-4, but Nino might as well sign the decision with a fuck you.

  35. 35
    MikeJ says:

    @JoyfulA: Rules I know. Speeling and typing, not so much.

  36. 36
    RepubAnon says:

    @Mike G: Yeah, lots of business owners will become Christian Scientists (until they themselves get appendicitis.)

    Plus – allowing an “against my religion” exception would have other uses. Lots of racists will suddenly get religious qualms about renting to folks of other races, or serving them in restaurants, etc.

    Of course, some folks will re-institute human sacrifice at some point, claiming that the laws against murder unduly burden the free exercise of their religion. Justice Scalia will undoubtedly explain why the “against my religion” exemption only works for people that he approves of, but the logic will be interesting.

  37. 37
    RepubAnon says:

    @Mnemosyne: If the Supremes go down that road, they’ll say that the women can pay for their own health care if they so choose – but can’t force other to fund choices that they find morally wrong.

    The more interesting question will be the equal protection argument if Viagra is covered but women’s birth control is not. I’m sure there’ll be a “some are more equal than others” argument from the Scalia, Alito, Thomas wing.

  38. 38

    @D. Mason:
    I know that preventative services are generally not offered because the insurance company thinks you’ll have a different (or no) carrier when you get seriously ill.

  39. 39
    ABL says:

    @Matthew Reid Krell: that’s an excellent point, And a mistake I shouldn’t have made. Derp on my part.

  40. 40
    ABL says:

    @Matthew Reid Krell: I actually wasn’t trying to make a rhetorical point. It was simply an error which I have now fixed. Thanks for pointing it out.

  41. 41
    Roger Moore says:

    @Frankensteinbeck:
    More like “preventative services are generally not offered because it gives a short-term juice to profits, making the CEOs’ stock options worth more”. Nothing, not even the long term health of the company, must stand in the way of next quarter’s profits.

    ETA: Or at least this seems like the only plausible reason for refusing to offer contraceptive services. The health condition they’re trying to prevent is predictably going to generate substantial costs in the next couple of quarters, which is probably soon enough that most customers will still be with the company.

  42. 42
    Todd says:

    OT – hahahahahahaha…….

    http://www.politico.com/news/s.....81649.html

    Nader thinks Obama is a war criminal worse than Bush.

    Fuck him.

  43. 43
    efgoldman says:

    @Todd:

    Fuck him.

    …and the jackass he rode in on.

  44. 44
    Big R says:

    @ABL: Many thanks. I appreciate the acknowledgment, something Bernard Final wouldn’t do. :-)

  45. 45
    Mike Lamb says:

    Isn’t it simpler than your argument? Health “benefits” aren’t a gift from an employer. They are compensation. In essence, employers are saying that you, Jane Doe Employee, can’t spend your money in a way that allegedly offends my religious sensibilities.

    Where in the First Amendment can someone dictate how I spend my money based on their religious beliefs?

  46. 46
    Persia says:

    @Charlie Dodgson: Corporations are people, people are serfs, and women are below notice.

  47. 47
    Egypt Steve says:

    I think job creators who are Jehova’s Witnesses should not be forced to purchase insurance policies that will pay for their employees’ blood transfusions.

  48. 48
    Chris says:

    @Tara the Antisocial Social Worker:

    Religious freedom belongs to individuals, period. Not to their employers or to some outside organization that wants the government to play enforcer for them.

    Good luck getting them to recognize that individuals are the ones with inalienable human rights and freedoms.

    The entire history of the conservative movement in this country has been based on the notion of granting “rights” to amorphous and impersonal entities, allowing the people who control these to then use these “rights” to trample all over the actual rights of the actual human beings under their control. States’ rights, corporations’ rights, churches’ rights. Anything but people’s rights.

  49. 49
    The Very Reverend Battleaxe of Knowledge says:

    I think Job Creators™ who are Orthodox Jews should not be forced to pay their employees at all, because what if they used some of the money to buy pork? What about them apples, huh, Libtards?

  50. 50
    Bago says:

    Brick and mortal buildings might actually have feelings as they ponder their mortality, giving the side eye to those upstart condos with their fancy California style glass and steel construction. Those LEED certified hussies.

  51. 51
    Viva BrisVegas says:

    As a curious furriner, I don’t get what the deal is. I thought that over your way health insurance cover was (often) provided as part of your remuneration package.

    As such, just how does your employer get to determine the disposition of your remuneration?

    Even if an insurance plan covers birth control, how would an employer know if an employee actually made use of BC? Please don’t tell me that your employer has access to your health records. If so, wow. So much for the integrity of your personal freedom.

    How would this apply to corporations? How can a corporation have a religion?

    This all sounds nuts. I suggest you all migrate to an actual free country with universal health care. I know of one with some very nice beaches, although it is a bit hot right now.

  52. 52
    Yutsano says:

    @Viva BrisVegas: If I could adjust to Christmas with no snow (and get a job) I’d seriously consider it. I already have several friends there.

  53. 53
    👽 Martin says:

    @The Golux: This. The church can no more dictate the contraception coverage (which costs them nothing) than they can dictate whether their employees buy contraception from their wages.

  54. 54
    BillinGlendaleCA says:

    @Yutsano: What is this snow you speak of?

  55. 55
    TooManyJens says:

    and even abortifacient drugs such as Plan B

    Would some court, somewhere, please ask these people to back up this claim? Because it’s not true. People legitimately thought, at one time, that it might be true, but now we know better. And it seems like, you know, that ought to matter.

  56. 56
    Yutsano says:

    @BillinGlendaleCA: It’s a mystical magical substance. I hear reindeer are involved in the making of it.

  57. 57
    Roger Moore says:

    @BillinGlendaleCA:

    What is this snow you speak of?

    It’s that white stuff you’ll see on top of the mountains sometimes when it has been raining in Glendale.

  58. 58
    Anoniminous says:

    @Viva BrisVegas:

    This all sounds nuts.

    It sounds nuts because it is nuts.

    A great deal of US Public Policy is effectively determined by people in Alabama with no money, no job, no education, and no teeth. They look upon these lacks with Pride and consider themselves capable of deciding complex questions of biology, medicine, and personal ethics because Invisible Sky Daddy of a bunch of Bronze Age sheep fucking nomads (read Leviticus for details.)

    Nothing about the United States will make sense until you realize, cognitively and emotionally, over 60% of GOP voters think they can be possessed by demons. Put another way, roughly 62 million US adults are incapable of rational thought.

  59. 59
    Anoniminous says:

    I was immoderate.

  60. 60
    Howlin Wolfe says:

    @Richard W. Crews: Good point, but I think they want to have a feudal power over everything that’s “theirs”. The logical conclusion of providing an exemption in the birth control mandate is that an employer could require as a condition to the employees’ wages that the employees not do anything that violates the employer’s “religious freedom”. 14th century, here we come!

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