In his two appearances before Congressional committees to testify about the recent contraception regulations proposed by HHS, Catholic Bishop William Lori has made clear that he sees the new rule as a violation of the First Amendment right to religious liberty, arguing that it’s unconstitutional to force any religious individual or organization to pay for services that violate tenets of their faith.
This is the reasoning that led the U.S. Conference of Catholic Bishops to endorse the Respect for Rights of Conscience Act (also known as the Blunt amendment in the Senate and the Fortenberry bill in the House), which would amend the Affordable Care Act to allow any employers to drop any service from their insurance coverage because of moral or religious objections.
As many have noted, this broad expansion of religious liberty would create a dangerous slippery slope in which individual corporate executives could haphazardly drop coverage of all sorts of services like cancer screenings, maternity care, diabetes testing, or practically anything.
This legislation would put into effect the scenario Justice Scalia himself warned about in a 1990 opinion dealing with a religious objection to drug laws: “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
The easiest to spot problems don’t even require that much slipping down the slope. Established religious groups like Jehovah’s Witnesses and Christian Scientists are well-known for their opposition to common medical services such as blood transfusions and pharmaceuticals respectively.
The Respect the Rights of Conscience Act doesn’t mention any medical procedure. It doesn’t mention anything specifically. It treats Christian Scientists like Catholics, and Muslims just like Methodists,” Blunt says. “The principle is you cannot tell people they have to do things that violate their faith beliefs. It’s as simple as that.
Under the RRCA, any employee of a company run by an adherent of these faiths could presumably see his or her access to these services dropped. Do the Catholic bishops really support these results?
Luckily, at yesterday’s hearing Rep. Bobby Scott (D-VA) asked Bishop Lori this exact question, giving him the chance to explain whether he thought the rights of religious objectors were limitless or if they ultimately came up against a line.
REP. SCOTT: But the Catholic Church policy on contraception isn’t the only religious exemption, religious situation we have. Christian Scientists, for example, Jehovah’s Witnesses have different health care religious beliefs. Should they be required to conform to the general law that applies to everybody else?
BISHOP LORI: I believe that as a general principle rights of conscience should be broadly accommodated unless there is a compelling government interest. And if that compelling government interest is established then I believe it should be carried forward in the least intrusive way possible.
This, of course, is the exact opposite of the principle of the RRCA Lori claims supports, which suggests the government can never have a compelling interest to overrule religious objections. Not only does Bishop Lori acknowledge this trade-off, he appears to suggest that the objections of Christian Scientists and Jehovah’s Witnesses shouldn’t qualify for exemptions. In short he seems to be arguing that Catholic objections should get an automatic free pass, but those of other religions should have to pass a rational test first.
Further, it undermines the argument that this debate is exclusively about religious freedom rather than contraception itself. Accepting Bishop Lori’s test means we’re no longer debating first principles and religious beliefs, but policy specifics relying on evidentiary claims and predictions about social and health outcomes.
The Bishops certainly have strong feelings on these issues, and they have every right to express them in the public square, but they have to accept that their arguments will be weighed against all others. This was the entire point of the the extensive review and public comment period about which preventive services should be covered without cost sharing by policyholders.
In the end, the government decided that yes, this is one of those times where the interests of the public outweigh some absolutist religious objections. However, the Obama administration also struck an accommodation that ensures, among other things, that Catholic institutions will not have to pay for services they find morally objectionable.
The Bishops may not like or agree with the decision our democratic process produced, but they don’t get to flash the First Amendment card as some kind of instant-nullification process.
After Rep. Darell Issa (R-CA) deemed Georgetown Law School student Sandra Fluke “unqualified” to speak at his hearing on the contraception coverage mandate and religious liberty, Fluke testified before a special committee last week about the effect this new policy will have on women.
As Tara covered last week, Fluke described the challenges of a fellow law student and friend who required oral contraceptives to treat her ovarian disease. When the university refused to cover her prescription, she was unable to afford the cost out of pocket and forced to stop taking them. Soon afterward she developed dangerous ovarian cysts and had to undergo an expensive, invasive surgery that might prevent her from ever having children.
Yesterday on America Live with Megyn Kelly, Kelly hosted fellow Fox anchor Trace Gallagher to talk about Fluke’s testimony. What followed was the most brazen display of shoddy journalism and old-fashioned misogyny I’ve ever seen on television news.
Following a clip of Fluke explaining that out-of-pocket costs of oral contraceptives can reach over $3,000 during law school—a prohibitive amount for a full-time student—Gallagher cited unnamed “critics” who calculated the large number of condoms that amount of money could buy and impugned the students:
GALLAGHER: Critics, of course, used her statement to kind of do the math, saying 3,000 over 3 years of law school for birth control is a lot of birth control. They mentioned that condoms are about a buck a piece, that equals about a thousand condoms and other birth control, Megyn. So, the question is, they wonder exactly what’s going on at Georgetown Law School. “When do they study?” was the response.
Aside from apparently not knowing the difference between condoms and oral contraceptives, Gallagher completely ignored the entire point of Fluke’s testimony, which focused on women who use oral contraceptives for non-contraceptive purposes. Unless condoms have some medicinal properties I’m not aware of, Gallagher is turning a serious discussion about a woman’s health crisis into a sick, sexist joke meant to distort the debate and demean a brave woman. It’s truly stunning.
Fox News did a disservice to both their viewers and women everywhere by airing such insulting nonsense. They owe Ms. Fluke and her friends a correction and an apology.
Two weeks ago during Rep. Darrell Issa’s hearing on the contraception mandate and religious liberty, Catholic Bishop William Lori made an elaborate analogy in his testimony comparing the mandate to a kosher deli being forced to serve pork to its customers.
As I explained, this was a terrible analogy. Employers providing health insurance are entirely different than restaurants serving customers, and birth control is nothing like pork.
Apparently, the Becket Fund for Religious Liberty’s Asma Uddin didn’t get the message. Responding to a question from Chairman Smith at today’s Judiciary Committee hearing on the same subject, Uddin made the following similarly problematic analogy:
SMITH: What are other examples, what else could the government force religious organizatiosn to provide if this madnate were to remain in effect as is unchanged.
UDDIN: Well, I mean, this mandate has been justified on the basis of the fact that there’s health benefits to providing contraceptives. But the issue of health benefits is not the point. If the government mandated everything that had positive health benefits, it could possibly mandate that everyone drink red wine for heart health even though it violates the religious beliefs of Muslims and Mormons. And it could mandate that everyone eat shellfish even though that violates the religious beliefs of Jews.
Uddin’s comments hearken back to the conservative canard that the Affordable Care Act’s individual coverage mandate would allow the government to force you to eat broccoli.
I don’t know what it is with conservatives and force feeding, but let’s be clear here; no one is going to force anyone to ingest anything, pork, shellfish, birth control pills, you name it. Nor, as Republican committee members fretted about in the hearing, does the government now have the power to force individuals to stop smoking, exercise or make any other personal behavior changes.
The policy question at stake is about setting a minimum requirement of services in commercial health insurance plans — services that are optional for the planholder to use.
Even if Uddin were complaining that the preventive service coverage requirement merely sets a precedent for the government to require that shellfish and wine be included in this list of mandated services in the future, she’d still be off base.
The required free preventive services such as cancer screenings and contraception were recommended by the independent Institute of Medicine (IOM), which reviewed evidence-based scientific and medical research and expert opinion to develop a list of services that fit the guidelines set out by Congress in the Affordable Care Act. So long as the IOM isn’t supplanted by the National Restaurant Association, we don’t have to worry about doctors being forced to write prescriptions for shrimp cocktails.
The IOM’s review was professional, rigorous, comprehensive and open to public comment. To suggest that this process might lead to frivolous inclusions of random foodstuffs demonstrates both a misunderstanding of the system and disrespect for the experts involved.
Exasperated protestations against the unprecedented consolidation of power by a “Big Brother” government intent on taking control of every aspect of Americans’ personal lives may make for exciting campaign speeches, but they have absolutely nothing to do with the policies in question.
In another piece of news about Catholics reacting positively to the Obama administration’s religious accommodation on contraception coverage, faculty members at John Carroll University have written a letter to their university president urging him to drop his opposition.
47 of John Carroll University’s roughly 215 faculty members signed a letter to school president Robert L. Niehoff, SJ, asking him to accept the contraception “accommodation” and include such coverage in employee health plans. The faculty members express their concern that “the bishops have chosen a path of continued confrontation.” Given that the bishops “have rejected the accommodation offered by the administration,” they continue, “leads us to wonder what motivates their continued resistance.”
These faculty members join the Catholic Health Association, the Association of Jesuit Colleges and Universities, Catholic theologians and Catholic social justice leaders in expressing support for President Obama’s sensible approach to protecting the conscience rights of religious employers and women’s health.
In contrast, Catholic bishops have continued to fight the Obama administration, insisting that their particular legal analysis is the only valid Catholic position. But just like the way the Bishops’ misconceptions about abortion funding became a contentious issue in the health care reform debate, this controversy isn’t simply a matter of moral principles, but rather a policy question of how to apply those principles in a complex legal and regulatory environment.
In this video from the Center for American Progress, Jonathan Gruber, MIT economist and former special advisor to the President on health care (he also worked on Masschusetts’s health care reform) explains with visual aids how the Affordable Care Act is working and debunks some of the common myths about the law.
Gruber also has written a comic book elaborating on this message.