Friday, February 10, 2012 3:13:20 AM
Whose Conscience?
By LINDA GREENHOUSE
February 8, 2012, 9:00 pm
In the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees, opposition from the Catholic church and its allies is making headway with a powerfully appealing claim: that when conscience and government policy collide, conscience must prevail.
The rhetoric in which this claim is put forward grows more inflammatory by the day. “The Obama administration has just told the Catholics of the United States, ‘To Hell with you!’ ” according to Bishop David A. Zubik [ http://www.diopitt.org/hhs-delays-rule-contraceptive-coverage ] of the Diocese of Pittsburgh. The Becket Fund for Religious Liberty [ http://www.becketfund.org/ ], a nondenominational organization that litigates on behalf of religious interests, is circulating a petition under the heading: “The Obama Administration is giving you one year to stop believing” (a reference to the one-year delay the regulation offers to religious employers). Mitt Romney, the likely Republican presidential nominee, joined the chorus this week, calling the regulation “a violation of conscience.”
This aggressive claiming of the moral high ground is close to drowning out the regulation’s supporters, inside and outside of the Obama administration. Maybe I’m missing something, but I haven’t seen a comparably full-throated defense of the regulation, issued last month by the Department of Health and Human Services, except on pure policy grounds. (And there are indications this week that even some in the administration, or at least in President Obama’s campaign apparatus, may be getting cold feet [ http://www.nytimes.com/2012/02/08/health/policy/obama-addresses-ire-on-health-insurance-contraception-rule.html ].) While the policy grounds are fully persuasive – the ability to prevent or space pregnancy being an essential part of women’s health care, one that shouldn’t be withheld simply because a woman’s employer is church-affiliated – the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.
An obvious starting point is with the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point during their reproductive lives. So it’s important to be clear that the conscientious objection [ http://www.guttmacher.org/pubs/Religion-and-Contraceptive-Use.pdf ] to the regulation comes from an institution rather than from those whose consciences it purports to represent. (Catholic women actually have a higher rate of abortion [ http://www.beliefnet.com/Faiths/Catholic/2001/01/The-Catholic-Abortion-Paradox.aspx ] than other American women, but I’ll stick to birth control for now.) While most Catholics dissent in the privacy of their bedrooms from the church’s position, some are pushing back in public. The organization Catholics for Choice [ http://www.catholicsforchoice.org/actioncenter/alerts/TellYourLocalMedia.asp ], whose magazine is pointedly entitled Conscience, is calling on its supporters to “tell our local media that the bishops are out of touch with the lived reality of the Catholic people” and “do not speak for us on this decision.”
But suppose the counter-factual – that only half, or one-quarter, or five percent of Catholic women use birth control. The question would remain: Whose conscience is it? The regulation doesn’t require anyone to use birth control. It exempts any religious employer that primarily hires and serves its own faithful, the same exclusion offered by New York and California from the contraception mandate in state insurance laws. (Of the other states that require such coverage, 15 offer a broader opt-out provision, while eight provide no exemption at all.) Permitting Catholic hospitals to withhold contraception coverage from their 765,000 employees would blow a gaping hole in the regulation. The 629-hospital Catholic health care system [ http://www.chausa.org/ ] is a major and respected health care provider, serving one in every six hospital patients and employing nearly 14 percent of all hospital staff in the country. Of the top 10 revenue-producing hospital systems in 2010, four were Catholic. The San Francisco-based Catholic Healthcare West, the fifth biggest hospital system in the country, had $11 billion in revenue last year and treated 6.2 million patients.
These institutions, as well as Catholic universities – not seminaries, but colleges and universities whose doors are open to all – are full participants in the public square, receiving a steady stream of federal dollars. They assert – indeed, have earned – the right to the same benefits that flow to their secular peers. What they now claim is a right to special treatment: to conscience that trumps law.
But in fact, that is not a principle that our legal system embraces. Just ask Alfred Smith and Galen Black, two members of the Native American Church who were fired from their state jobs in Oregon for using the illegal hallucinogen peyote in a religious ceremony and who were then deemed ineligible for unemployment compensation because they had lost their jobs for “misconduct.” They argued that their First Amendment right to free exercise of religion trumped the state’s unemployment law.
In a 1990 decision, Employment Division v. Smith [ http://supreme.justia.com/cases/federal/us/494/872/case.html ], the Supreme Court disagreed. Even a sincere religious motivation, in the absence of some special circumstance like proof of government animus, does not merit exemption from a “valid and neutral law of general applicability,” the court held. Justice Antonin Scalia wrote the opinion, which was joined by, among others, the notoriously left wing Chief Justice William H. Rehnquist.
A broad coalition of conservative and progressive religious groups pushed back hard, leading to congressional passage of the tendentiously titled Religious Freedom Restoration Act. It provided that a free exercise claim would prevail unless the government could show a “compelling” reason for holding a religious group to the same legal requirements that applied to everyone else. After a Catholic church in Texas invoked that law in an effort to expand into a landmark zone where no new building was permitted, the Supreme Court [ http://supreme.justia.com/cases/federal/us/521/507/ ] declared the Religious Freedom Restoration Act unconstitutional as applied to the states. The law remains in effect as applied to the federal government, although its full dimension remains untested.
Senator Rob Portman, an Ohio Republican, sent a letter to Attorney General Eric Holder on Monday asserting that the contraception regulation violates the Religious Freedom Restoration Act, and it’s not unlikely that one or more lawsuits may soon test that proposition. The question would then be whether the case for the mandate, without the broad exemption the church is demanding, is sufficiently “compelling.” Such a case would pit the well-rehearsed public health arguments (half of all pregnancies in the United States are unintended, and nearly half of those end in abortion – a case for expanded access to birth control if there ever was one ) against religious doctrine.
The court has recently been active on the religion front. In a unanimous decision last month, the justices for the first time recognized a constitutionally-based “ministerial exception” from laws concerning employment discrimination. An employee deemed by a church to be a “minister” – in this case, a kindergarten teacher in a Lutheran school who had received ministerial training and taught some religion classes – cannot sue the church [ http://www.supremecourt.gov/opinions/11pdf/10-553.pdf ] over an adverse employment decision, the court held in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.
The plaintiff, supported by the federal government, had argued that the 1990 Employment Division v. Smith decision precluded the recognition of a ministerial exception from generally applicable employment laws. Rejecting that argument in his opinion for the court, Chief Justice John G. Roberts Jr. explained: “But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”
That language is certainly suggestive of deference, beyond the employment area, to a church’s doctrinal claims to special treatment. But while all nine justices signed the opinion, that doesn’t necessarily mean that all nine would agree on its application to the contraception requirement. The question would be whether a church that has failed to persuade its own flock of the rightness of its position could persuade at least five justices.
© 2012 The New York Times Company
http://opinionator.blogs.nytimes.com/2012/02/08/whose-conscience/ [with comments]
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Constitutionality of birth control mandate
By Sarah Muller - Thu Feb 9, 2012 12:50 AM EST
Constitutional expert David Boies said there's no basis for a constitutional fight with the birth control mandate [ http://thelastword.msnbc.msn.com/_news/2012/02/07/10345640-white-house-reevaluating-birth-control-policy ]. On The Last Word [video of segment embedded], he compared the current debate that's heating up in Washington to simple tax law or labor laws.
"There isn't a constitutional issue involved in this case," he told MSNBC's Lawrence O'Donnell on Wednesday. "You don't exempt religious employers just because of their religion. You are not asking anybody in the Catholic church or any other church to do anything other than simply comply with a normal law that every employer has to comply with."
Boies, who represented Vice President Al Gore in Bush v. Gore, said "this case would have trouble getting to the court."
© 2012 MSNBC
http://thelastword.msnbc.msn.com/_news/2012/02/09/10358005-constitutionality-of-birth-control-mandate [with comments] [also at http://www.truth-out.org/constitutional-lawyer-david-boies-constitutionality-birth-control-mandate/1328809623
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In Birth Control Debate, Religious Beliefs Don't Trump Rights
Speaking at a news conference, Sen. Marco Rubio (R-Fla.) criticizes President Barack Obama for insisting that employers must provide health insurance that includes birth control for women.
AP Images
Wendy Kaminer
Feb 9 2012, 12:40 PM ET
You might expect the Catholic Bishops to recognize an Inquisition when they see one. But listening to their laments about the administration's "unprecedented assaults [ http://au.org/church-state/february-2012-church-state/featured/the-bishops-obama-and-religious ]" on religious liberty, you'd think Barack Obama was the second coming of Torquemada. Reasonable people will differ about the justice or wisdom of requiring church-affiliated employers to include contraceptive coverage in employee health insurance plans, but only unreasonable ones will regard this requirement as the coup de grace of religious liberty. Churches are exempt from the obligation to provide reproductive health care coverage; the requirement applies instead to affiliated hospitals, schools, and other institutions that generally receive public support to employ and serve religiously diverse members of the general public.
What accounts for the rhetorical excesses of the Catholic Church and its advocates on the campaign trail and in the media? They reflect some genuine outrage, no doubt. But, in part, the rhetoric is an organizing tool (which may succeed in wresting new concessions [ http://www.washingtonpost.com/politics/obama-advisors-seek-compromise-on-contraception-rule/2012/02/06/gIQAlUwrwQ_story.html ] from the administration). And in part, it reflects larger rhetorical trends: We inhabit a culture of hyperbole, especially during election years. Every argument is a gunfight (to which someone mistakenly brings a knife), every gunfight is a war, and every war a potential apocalypse.
Still, while the fate of American civilization doesn't depend on this debate about the obligations of church-affiliated institutions to abide by secular law, the stakes are relatively high. As government workers are laid off and government programs shrink, the public role of private, tax-exempt non-profits expands. The stronger their right to dispense public funds and deliver public services according to sectarian religious dictates, the weaker our rights to a non-sectarian public sphere. It's a zero-sum game.
Non-sectarianism may lose out in the end, regardless of the unpopularity of some sectarian ideals (in this case, opposition to birth control). The desires that drive people to behaviors that their religious leaders deem sinful don't generally drive support for eradicating the very concept of sin. Eliminate sin, after all, and you'd eliminate the pleasure, and perhaps the possibility of redemption. And despite the emergence of a coherent non-theist movement, religiosity (in approved forms) remains essential to prevailing concepts of patriotism -- and, with few exceptions, to political success in state or federal elections. (This is not only the case in Republican primaries, where the non-existent threat of a "secular, socialist America" looms large.)
Reproductive choice has been an obvious casualty of sectarianism. State [ http://www.prochoiceamerica.org/media/press-releases/2012/pr01192012_wdrelease.html ] and federal [ http://www.law.cornell.edu/supct/html/05-380.ZS.html ] laws impose dramatic, direct limitations on abortion rights. Conscience clauses allow pharmacists and physicians to refuse medical treatment, even when a patient's life is at stake. This right of refusal is defensible -- so long as it's accompanied by an obligation of the pharmacy or health care facility to ensure that that there are always other providers on the premises willing to dispense contraception and perform elective or medically essential abortions.
But conscience or refusal clauses are also reminiscent of policies allowing white-only hospitals to refuse treatment to black patients, or accommodations to black travelers, in the segregated South. What if belief in segregation were an article of faith, a matter of conscience, for some? (Some clergymen once defended slavery [ http://www.pbs.org/wnet/slavery/experience/religion/history2.html ].) I'm not comparing opposition to birth control with racism, much less slavery. I'm simply pointing out that religious beliefs can, and often do, conflict with civil society and individual rights.
Would we tolerate a religious right to refuse treatment or accommodation on the basis of race as readily as we tolerate a religious right to refuse reproductive health care? Of course not. Your right to act on your religious beliefs is not absolute; it's weighed against the rights that your actions would deny to others. Today, and perhaps for the foreseeable future, claims of religious freedom tend to outweigh claims of reproductive freedom. But that is a consequence of history, politics, and culture and is subject to change. The balance of power is not divinely ordained.
Copyright © 2012 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2012/02/in-birth-control-debate-religious-beliefs-dont-trump-rights/252801/ [with comments]
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Bishops Were Prepared for Battle Over Birth Control Coverage
Archbishop Timothy M. Dolan said the Obama administration had infringed on religious liberty.
Seth Wenig/Associated Press
By LAURIE GOODSTEIN
Published: February 9, 2012
When after much internal debate the Obama administration finally announced its decision to require religiously affiliated hospitals and universities to cover birth control in their insurance plans, the nation’s Roman Catholic bishops were fully prepared for battle.
Seven months earlier, they had started laying the groundwork for a major new campaign to combat what they saw as the growing threat to religious liberty, including the legalization of same-sex marriage. But the birth control mandate, issued on Jan. 20, was their Pearl Harbor.
Hours after President Obama phoned to share his decision with Archbishop Timothy M. Dolan of New York, who is president of the United States Conference of Catholic Bishops, the bishops’ headquarters in Washington posted on its Web site a video of Archbishop Dolan, which had been recorded the day before.
“Never before,” Archbishop Dolan said, setting the tone, “has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This shouldn’t happen in a land where free exercise of religion ranks first in the Bill of Rights.”
The speed and passion behind the bishops’ response reflects their growing sense of siege, and their belief that the space the Catholic church once occupied in American society and the deference it was given are gradually being curtailed by an increasingly secular culture.
The conflict puts not just the White House, but also the bishops to the test. Will their flock follow their lead? And are they sufficiently powerful, now that they have joined forces with evangelicals and other religious conservatives, to outmuscle the women’s groups, public health advocates and liberal religious leaders who argue that the real issue is contraceptive coverage for all women, and that the Obama administration was right?
On the day of the decision, bishops across the country posted similarly dire statements on their Web sites, and at Mass on the following Sundays, priests read the bishops’ letters from their pulpits and wove the religious freedom theme into their homilies. By the bishops’ own count, 147 bishops in the nation’s 195 dioceses have now issued personal letters on religious freedom, which are trickling down to Catholics through their local parish bulletins and diocesan newspapers.
Some bishops called on Catholics to lobby their legislators to overturn the mandate, while a few have called for resistance. Archbishop Timothy Broglio, who oversees Catholic military chaplains, instructed them to read a pastoral letter at Mass that said, “We cannot — and will not — comply with this unjust law.” Army officials ordered him to strike that line because it could be interpreted as a call for civil disobedience.
“I have never seen the bishops mobilize so quickly,” said Stephen S. Schneck, director of the Institute for Policy Research and Catholic Studies at the Catholic University of America, in Washington. “I remember Roe v. Wade, and it took years for them to respond to that, in terms of an organized response.”
“The bishops really are convinced that this is a direct abridgement of their First Amendment religion rights,” Mr. Schneck said. “From their perspective, this really isn’t about contraception.”
The ruling issued by the Department of Health and Human Services, said that only religious organizations that primarily employ and serve their co-religionists would be exempt from the requirement to provide insurance that covers birth control. Churches are therefore exempt, but Catholic hospitals, service agencies and colleges are not. The White House said that 28 states already had such mandates, so this federal rule, which is part of the health care overhaul, just applies the mandate uniformly.
The backlash has prompted the White House to say it is searching for solutions, but neither side appears to have moved toward compromise. A White House spokesman reiterated that the decision allows the Catholic institutions until August 2013 to figure out how they can put the policy into effect.
Administration officials are also waiting to assess how much political damage the decision will cause. The Republican presidential candidates are already wielding religious liberty as a wedge issue. While Catholics do not vote as a bloc, they are part of the swing vote in states like Michigan, Ohio and Pennsylvania.
The bishops have found allies among conservative evangelicals, who do not share the Catholic Church’s doctrinal prohibition on contraception but are delighted to see the bishops adopt the right’s longstanding grievance that government has declared a war on religion. They have been joined by the bishops of Eastern Orthodox churches (like Greek, Russian and Ukrainian) and two Orthodox Jewish groups — small constituencies but ones that lend the cause a touch of diversity.
On the other side are religious Americans and clergy members who are unmoved by the religious liberty theme, and who regard the administration’s ruling as sensible health care policy.
The public policy arm of the United Methodist Church, which like the Catholic Church, runs hospitals and universities across the country, has applauded the mandate to cover contraception. And a coalition of mainline Protestants, Muslims and Reform and Conservative Jews released a declaration on Wednesday supporting the ruling.
The Rev. Debra W. Haffner, executive director of the Religious Institute, a liberal interfaith group that works on sexuality issues and that wrote the declaration, said, “The mainstream religious voice has supported contraception for decades, at least for the last 40 years.”
But many other religious denominations, including white and black Protestant churches, are so far sitting on the sidelines.
The main question is whether this is truly a galvanizing issue for rank-and-file Catholics. If they conclude that the real issue is birth control, the bishops may lose. Humanae Vitae, the papal encyclical issued in 1968 that prohibited artificial contraception because every act of intercourse should be open to procreation, never really took hold in the United States. Some Catholic theologians still argue that it is bad doctrine.
Studies have shown that 98 percent of Catholic women have used artificial contraception at some time in their lives. A poll released on Tuesday by the Public Religion Research Institute in Washington found that 52 percent of Catholic respondents agreed that even religiously affiliated colleges and hospitals should have to provide their employees with health care plans that cover contraception. (Among Catholic voters, however, 52 percent disagreed and only 45 percent agreed).
But Catholics may be persuaded by the argument that the mandate is a violation of religious liberty. One indication is that several prominent Catholic Democrats who supported Mr. Obama in 2008, supported the health care overhaul and defended the president at many junctures, have broken with him on the birth control mandate.
Michael Sean Winters, a writer for National Catholic Reporter, a liberal independent weekly, said: “I think they misjudged that no matter what people think about contraception, that’s an internal Catholic debate. Catholics do not like interlopers.”
Douglas W. Kmiec, who served as ambassador to Malta under Mr. Obama and is now a professor of constitutional law at Pepperdine University, said he was disappointed that such a divisive course was chosen by a president who urged respect for others’ religious traditions.
“For people attracted to him for those reasons, who applaud the very passage of the health care law, we are just sort of baffled by this,” Mr. Kmiec said. “Especially when the train wreck was foreseen, and we kept saying, ‘Not this track, not this track.’ And here came the train and ran us all over.”
*
Related
Birth Control Is Covered, and G.O.P. Vows a Fight (February 9, 2012)
http://www.nytimes.com/2012/02/09/us/politics/boehner-vows-to-fight-contraception-rule.html
Obama Tries to Ease Ire on Contraception Rule (February 8, 2012)
http://www.nytimes.com/2012/02/08/health/policy/obama-addresses-ire-on-health-insurance-contraception-rule.html
*
© 2012 The New York Times Company
http://www.nytimes.com/2012/02/10/us/bishops-planned-battle-on-birth-control-coverage-rule.html [ http://www.nytimes.com/2012/02/10/us/bishops-planned-battle-on-birth-control-coverage-rule.html?pagewanted=all ]
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Barack Obama's Contraception Ruling Backed By Previously Unreleased Survey
02/ 9/2012
http://www.huffingtonpost.com/2012/02/09/barack-obama-contraception-ruling_n_1265333.html [with comments]
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Students At Catholic Colleges Protest Lack Of Access To Birth Control
02/ 9/2012
http://www.huffingtonpost.com/2012/02/09/catholic-college-students-birth-control_n_1265771.html [with comments]
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By LINDA GREENHOUSE
February 8, 2012, 9:00 pm
In the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees, opposition from the Catholic church and its allies is making headway with a powerfully appealing claim: that when conscience and government policy collide, conscience must prevail.
The rhetoric in which this claim is put forward grows more inflammatory by the day. “The Obama administration has just told the Catholics of the United States, ‘To Hell with you!’ ” according to Bishop David A. Zubik [ http://www.diopitt.org/hhs-delays-rule-contraceptive-coverage ] of the Diocese of Pittsburgh. The Becket Fund for Religious Liberty [ http://www.becketfund.org/ ], a nondenominational organization that litigates on behalf of religious interests, is circulating a petition under the heading: “The Obama Administration is giving you one year to stop believing” (a reference to the one-year delay the regulation offers to religious employers). Mitt Romney, the likely Republican presidential nominee, joined the chorus this week, calling the regulation “a violation of conscience.”
This aggressive claiming of the moral high ground is close to drowning out the regulation’s supporters, inside and outside of the Obama administration. Maybe I’m missing something, but I haven’t seen a comparably full-throated defense of the regulation, issued last month by the Department of Health and Human Services, except on pure policy grounds. (And there are indications this week that even some in the administration, or at least in President Obama’s campaign apparatus, may be getting cold feet [ http://www.nytimes.com/2012/02/08/health/policy/obama-addresses-ire-on-health-insurance-contraception-rule.html ].) While the policy grounds are fully persuasive – the ability to prevent or space pregnancy being an essential part of women’s health care, one that shouldn’t be withheld simply because a woman’s employer is church-affiliated – the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.
An obvious starting point is with the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point during their reproductive lives. So it’s important to be clear that the conscientious objection [ http://www.guttmacher.org/pubs/Religion-and-Contraceptive-Use.pdf ] to the regulation comes from an institution rather than from those whose consciences it purports to represent. (Catholic women actually have a higher rate of abortion [ http://www.beliefnet.com/Faiths/Catholic/2001/01/The-Catholic-Abortion-Paradox.aspx ] than other American women, but I’ll stick to birth control for now.) While most Catholics dissent in the privacy of their bedrooms from the church’s position, some are pushing back in public. The organization Catholics for Choice [ http://www.catholicsforchoice.org/actioncenter/alerts/TellYourLocalMedia.asp ], whose magazine is pointedly entitled Conscience, is calling on its supporters to “tell our local media that the bishops are out of touch with the lived reality of the Catholic people” and “do not speak for us on this decision.”
But suppose the counter-factual – that only half, or one-quarter, or five percent of Catholic women use birth control. The question would remain: Whose conscience is it? The regulation doesn’t require anyone to use birth control. It exempts any religious employer that primarily hires and serves its own faithful, the same exclusion offered by New York and California from the contraception mandate in state insurance laws. (Of the other states that require such coverage, 15 offer a broader opt-out provision, while eight provide no exemption at all.) Permitting Catholic hospitals to withhold contraception coverage from their 765,000 employees would blow a gaping hole in the regulation. The 629-hospital Catholic health care system [ http://www.chausa.org/ ] is a major and respected health care provider, serving one in every six hospital patients and employing nearly 14 percent of all hospital staff in the country. Of the top 10 revenue-producing hospital systems in 2010, four were Catholic. The San Francisco-based Catholic Healthcare West, the fifth biggest hospital system in the country, had $11 billion in revenue last year and treated 6.2 million patients.
These institutions, as well as Catholic universities – not seminaries, but colleges and universities whose doors are open to all – are full participants in the public square, receiving a steady stream of federal dollars. They assert – indeed, have earned – the right to the same benefits that flow to their secular peers. What they now claim is a right to special treatment: to conscience that trumps law.
But in fact, that is not a principle that our legal system embraces. Just ask Alfred Smith and Galen Black, two members of the Native American Church who were fired from their state jobs in Oregon for using the illegal hallucinogen peyote in a religious ceremony and who were then deemed ineligible for unemployment compensation because they had lost their jobs for “misconduct.” They argued that their First Amendment right to free exercise of religion trumped the state’s unemployment law.
In a 1990 decision, Employment Division v. Smith [ http://supreme.justia.com/cases/federal/us/494/872/case.html ], the Supreme Court disagreed. Even a sincere religious motivation, in the absence of some special circumstance like proof of government animus, does not merit exemption from a “valid and neutral law of general applicability,” the court held. Justice Antonin Scalia wrote the opinion, which was joined by, among others, the notoriously left wing Chief Justice William H. Rehnquist.
A broad coalition of conservative and progressive religious groups pushed back hard, leading to congressional passage of the tendentiously titled Religious Freedom Restoration Act. It provided that a free exercise claim would prevail unless the government could show a “compelling” reason for holding a religious group to the same legal requirements that applied to everyone else. After a Catholic church in Texas invoked that law in an effort to expand into a landmark zone where no new building was permitted, the Supreme Court [ http://supreme.justia.com/cases/federal/us/521/507/ ] declared the Religious Freedom Restoration Act unconstitutional as applied to the states. The law remains in effect as applied to the federal government, although its full dimension remains untested.
Senator Rob Portman, an Ohio Republican, sent a letter to Attorney General Eric Holder on Monday asserting that the contraception regulation violates the Religious Freedom Restoration Act, and it’s not unlikely that one or more lawsuits may soon test that proposition. The question would then be whether the case for the mandate, without the broad exemption the church is demanding, is sufficiently “compelling.” Such a case would pit the well-rehearsed public health arguments (half of all pregnancies in the United States are unintended, and nearly half of those end in abortion – a case for expanded access to birth control if there ever was one ) against religious doctrine.
The court has recently been active on the religion front. In a unanimous decision last month, the justices for the first time recognized a constitutionally-based “ministerial exception” from laws concerning employment discrimination. An employee deemed by a church to be a “minister” – in this case, a kindergarten teacher in a Lutheran school who had received ministerial training and taught some religion classes – cannot sue the church [ http://www.supremecourt.gov/opinions/11pdf/10-553.pdf ] over an adverse employment decision, the court held in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.
The plaintiff, supported by the federal government, had argued that the 1990 Employment Division v. Smith decision precluded the recognition of a ministerial exception from generally applicable employment laws. Rejecting that argument in his opinion for the court, Chief Justice John G. Roberts Jr. explained: “But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”
That language is certainly suggestive of deference, beyond the employment area, to a church’s doctrinal claims to special treatment. But while all nine justices signed the opinion, that doesn’t necessarily mean that all nine would agree on its application to the contraception requirement. The question would be whether a church that has failed to persuade its own flock of the rightness of its position could persuade at least five justices.
© 2012 The New York Times Company
http://opinionator.blogs.nytimes.com/2012/02/08/whose-conscience/ [with comments]
===
Constitutionality of birth control mandate
By Sarah Muller - Thu Feb 9, 2012 12:50 AM EST
Constitutional expert David Boies said there's no basis for a constitutional fight with the birth control mandate [ http://thelastword.msnbc.msn.com/_news/2012/02/07/10345640-white-house-reevaluating-birth-control-policy ]. On The Last Word [video of segment embedded], he compared the current debate that's heating up in Washington to simple tax law or labor laws.
"There isn't a constitutional issue involved in this case," he told MSNBC's Lawrence O'Donnell on Wednesday. "You don't exempt religious employers just because of their religion. You are not asking anybody in the Catholic church or any other church to do anything other than simply comply with a normal law that every employer has to comply with."
Boies, who represented Vice President Al Gore in Bush v. Gore, said "this case would have trouble getting to the court."
© 2012 MSNBC
http://thelastword.msnbc.msn.com/_news/2012/02/09/10358005-constitutionality-of-birth-control-mandate [with comments] [also at http://www.truth-out.org/constitutional-lawyer-david-boies-constitutionality-birth-control-mandate/1328809623
===
In Birth Control Debate, Religious Beliefs Don't Trump Rights
Speaking at a news conference, Sen. Marco Rubio (R-Fla.) criticizes President Barack Obama for insisting that employers must provide health insurance that includes birth control for women.
AP Images
Wendy Kaminer
Feb 9 2012, 12:40 PM ET
You might expect the Catholic Bishops to recognize an Inquisition when they see one. But listening to their laments about the administration's "unprecedented assaults [ http://au.org/church-state/february-2012-church-state/featured/the-bishops-obama-and-religious ]" on religious liberty, you'd think Barack Obama was the second coming of Torquemada. Reasonable people will differ about the justice or wisdom of requiring church-affiliated employers to include contraceptive coverage in employee health insurance plans, but only unreasonable ones will regard this requirement as the coup de grace of religious liberty. Churches are exempt from the obligation to provide reproductive health care coverage; the requirement applies instead to affiliated hospitals, schools, and other institutions that generally receive public support to employ and serve religiously diverse members of the general public.
What accounts for the rhetorical excesses of the Catholic Church and its advocates on the campaign trail and in the media? They reflect some genuine outrage, no doubt. But, in part, the rhetoric is an organizing tool (which may succeed in wresting new concessions [ http://www.washingtonpost.com/politics/obama-advisors-seek-compromise-on-contraception-rule/2012/02/06/gIQAlUwrwQ_story.html ] from the administration). And in part, it reflects larger rhetorical trends: We inhabit a culture of hyperbole, especially during election years. Every argument is a gunfight (to which someone mistakenly brings a knife), every gunfight is a war, and every war a potential apocalypse.
Still, while the fate of American civilization doesn't depend on this debate about the obligations of church-affiliated institutions to abide by secular law, the stakes are relatively high. As government workers are laid off and government programs shrink, the public role of private, tax-exempt non-profits expands. The stronger their right to dispense public funds and deliver public services according to sectarian religious dictates, the weaker our rights to a non-sectarian public sphere. It's a zero-sum game.
Non-sectarianism may lose out in the end, regardless of the unpopularity of some sectarian ideals (in this case, opposition to birth control). The desires that drive people to behaviors that their religious leaders deem sinful don't generally drive support for eradicating the very concept of sin. Eliminate sin, after all, and you'd eliminate the pleasure, and perhaps the possibility of redemption. And despite the emergence of a coherent non-theist movement, religiosity (in approved forms) remains essential to prevailing concepts of patriotism -- and, with few exceptions, to political success in state or federal elections. (This is not only the case in Republican primaries, where the non-existent threat of a "secular, socialist America" looms large.)
Reproductive choice has been an obvious casualty of sectarianism. State [ http://www.prochoiceamerica.org/media/press-releases/2012/pr01192012_wdrelease.html ] and federal [ http://www.law.cornell.edu/supct/html/05-380.ZS.html ] laws impose dramatic, direct limitations on abortion rights. Conscience clauses allow pharmacists and physicians to refuse medical treatment, even when a patient's life is at stake. This right of refusal is defensible -- so long as it's accompanied by an obligation of the pharmacy or health care facility to ensure that that there are always other providers on the premises willing to dispense contraception and perform elective or medically essential abortions.
But conscience or refusal clauses are also reminiscent of policies allowing white-only hospitals to refuse treatment to black patients, or accommodations to black travelers, in the segregated South. What if belief in segregation were an article of faith, a matter of conscience, for some? (Some clergymen once defended slavery [ http://www.pbs.org/wnet/slavery/experience/religion/history2.html ].) I'm not comparing opposition to birth control with racism, much less slavery. I'm simply pointing out that religious beliefs can, and often do, conflict with civil society and individual rights.
Would we tolerate a religious right to refuse treatment or accommodation on the basis of race as readily as we tolerate a religious right to refuse reproductive health care? Of course not. Your right to act on your religious beliefs is not absolute; it's weighed against the rights that your actions would deny to others. Today, and perhaps for the foreseeable future, claims of religious freedom tend to outweigh claims of reproductive freedom. But that is a consequence of history, politics, and culture and is subject to change. The balance of power is not divinely ordained.
Copyright © 2012 by The Atlantic Monthly Group
http://www.theatlantic.com/national/archive/2012/02/in-birth-control-debate-religious-beliefs-dont-trump-rights/252801/ [with comments]
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Bishops Were Prepared for Battle Over Birth Control Coverage
Archbishop Timothy M. Dolan said the Obama administration had infringed on religious liberty.
Seth Wenig/Associated Press
By LAURIE GOODSTEIN
Published: February 9, 2012
When after much internal debate the Obama administration finally announced its decision to require religiously affiliated hospitals and universities to cover birth control in their insurance plans, the nation’s Roman Catholic bishops were fully prepared for battle.
Seven months earlier, they had started laying the groundwork for a major new campaign to combat what they saw as the growing threat to religious liberty, including the legalization of same-sex marriage. But the birth control mandate, issued on Jan. 20, was their Pearl Harbor.
Hours after President Obama phoned to share his decision with Archbishop Timothy M. Dolan of New York, who is president of the United States Conference of Catholic Bishops, the bishops’ headquarters in Washington posted on its Web site a video of Archbishop Dolan, which had been recorded the day before.
“Never before,” Archbishop Dolan said, setting the tone, “has the federal government forced individuals and organizations to go out into the marketplace and buy a product that violates their conscience. This shouldn’t happen in a land where free exercise of religion ranks first in the Bill of Rights.”
The speed and passion behind the bishops’ response reflects their growing sense of siege, and their belief that the space the Catholic church once occupied in American society and the deference it was given are gradually being curtailed by an increasingly secular culture.
The conflict puts not just the White House, but also the bishops to the test. Will their flock follow their lead? And are they sufficiently powerful, now that they have joined forces with evangelicals and other religious conservatives, to outmuscle the women’s groups, public health advocates and liberal religious leaders who argue that the real issue is contraceptive coverage for all women, and that the Obama administration was right?
On the day of the decision, bishops across the country posted similarly dire statements on their Web sites, and at Mass on the following Sundays, priests read the bishops’ letters from their pulpits and wove the religious freedom theme into their homilies. By the bishops’ own count, 147 bishops in the nation’s 195 dioceses have now issued personal letters on religious freedom, which are trickling down to Catholics through their local parish bulletins and diocesan newspapers.
Some bishops called on Catholics to lobby their legislators to overturn the mandate, while a few have called for resistance. Archbishop Timothy Broglio, who oversees Catholic military chaplains, instructed them to read a pastoral letter at Mass that said, “We cannot — and will not — comply with this unjust law.” Army officials ordered him to strike that line because it could be interpreted as a call for civil disobedience.
“I have never seen the bishops mobilize so quickly,” said Stephen S. Schneck, director of the Institute for Policy Research and Catholic Studies at the Catholic University of America, in Washington. “I remember Roe v. Wade, and it took years for them to respond to that, in terms of an organized response.”
“The bishops really are convinced that this is a direct abridgement of their First Amendment religion rights,” Mr. Schneck said. “From their perspective, this really isn’t about contraception.”
The ruling issued by the Department of Health and Human Services, said that only religious organizations that primarily employ and serve their co-religionists would be exempt from the requirement to provide insurance that covers birth control. Churches are therefore exempt, but Catholic hospitals, service agencies and colleges are not. The White House said that 28 states already had such mandates, so this federal rule, which is part of the health care overhaul, just applies the mandate uniformly.
The backlash has prompted the White House to say it is searching for solutions, but neither side appears to have moved toward compromise. A White House spokesman reiterated that the decision allows the Catholic institutions until August 2013 to figure out how they can put the policy into effect.
Administration officials are also waiting to assess how much political damage the decision will cause. The Republican presidential candidates are already wielding religious liberty as a wedge issue. While Catholics do not vote as a bloc, they are part of the swing vote in states like Michigan, Ohio and Pennsylvania.
The bishops have found allies among conservative evangelicals, who do not share the Catholic Church’s doctrinal prohibition on contraception but are delighted to see the bishops adopt the right’s longstanding grievance that government has declared a war on religion. They have been joined by the bishops of Eastern Orthodox churches (like Greek, Russian and Ukrainian) and two Orthodox Jewish groups — small constituencies but ones that lend the cause a touch of diversity.
On the other side are religious Americans and clergy members who are unmoved by the religious liberty theme, and who regard the administration’s ruling as sensible health care policy.
The public policy arm of the United Methodist Church, which like the Catholic Church, runs hospitals and universities across the country, has applauded the mandate to cover contraception. And a coalition of mainline Protestants, Muslims and Reform and Conservative Jews released a declaration on Wednesday supporting the ruling.
The Rev. Debra W. Haffner, executive director of the Religious Institute, a liberal interfaith group that works on sexuality issues and that wrote the declaration, said, “The mainstream religious voice has supported contraception for decades, at least for the last 40 years.”
But many other religious denominations, including white and black Protestant churches, are so far sitting on the sidelines.
The main question is whether this is truly a galvanizing issue for rank-and-file Catholics. If they conclude that the real issue is birth control, the bishops may lose. Humanae Vitae, the papal encyclical issued in 1968 that prohibited artificial contraception because every act of intercourse should be open to procreation, never really took hold in the United States. Some Catholic theologians still argue that it is bad doctrine.
Studies have shown that 98 percent of Catholic women have used artificial contraception at some time in their lives. A poll released on Tuesday by the Public Religion Research Institute in Washington found that 52 percent of Catholic respondents agreed that even religiously affiliated colleges and hospitals should have to provide their employees with health care plans that cover contraception. (Among Catholic voters, however, 52 percent disagreed and only 45 percent agreed).
But Catholics may be persuaded by the argument that the mandate is a violation of religious liberty. One indication is that several prominent Catholic Democrats who supported Mr. Obama in 2008, supported the health care overhaul and defended the president at many junctures, have broken with him on the birth control mandate.
Michael Sean Winters, a writer for National Catholic Reporter, a liberal independent weekly, said: “I think they misjudged that no matter what people think about contraception, that’s an internal Catholic debate. Catholics do not like interlopers.”
Douglas W. Kmiec, who served as ambassador to Malta under Mr. Obama and is now a professor of constitutional law at Pepperdine University, said he was disappointed that such a divisive course was chosen by a president who urged respect for others’ religious traditions.
“For people attracted to him for those reasons, who applaud the very passage of the health care law, we are just sort of baffled by this,” Mr. Kmiec said. “Especially when the train wreck was foreseen, and we kept saying, ‘Not this track, not this track.’ And here came the train and ran us all over.”
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Related
Birth Control Is Covered, and G.O.P. Vows a Fight (February 9, 2012)
http://www.nytimes.com/2012/02/09/us/politics/boehner-vows-to-fight-contraception-rule.html
Obama Tries to Ease Ire on Contraception Rule (February 8, 2012)
http://www.nytimes.com/2012/02/08/health/policy/obama-addresses-ire-on-health-insurance-contraception-rule.html
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© 2012 The New York Times Company
http://www.nytimes.com/2012/02/10/us/bishops-planned-battle-on-birth-control-coverage-rule.html [ http://www.nytimes.com/2012/02/10/us/bishops-planned-battle-on-birth-control-coverage-rule.html?pagewanted=all ]
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Barack Obama's Contraception Ruling Backed By Previously Unreleased Survey
02/ 9/2012
http://www.huffingtonpost.com/2012/02/09/barack-obama-contraception-ruling_n_1265333.html [with comments]
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Students At Catholic Colleges Protest Lack Of Access To Birth Control
02/ 9/2012
http://www.huffingtonpost.com/2012/02/09/catholic-college-students-birth-control_n_1265771.html [with comments]
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