A (Long) Musing On The New Contraception Rule

There’s been a long and somewhat intense discussion going on in the comments over at Kyle’s sub-blog about the Obama administration’s rule requiring Catholic institutions to provide coverage for contraception in their health care plans. There are a number of interesting threads I’d like to pull out here and state explicitly in a post that’s longer than a comment. It’s really long, so I’m just putting the whole thing behind the fold.


Health Care Provision

Up front, let me state my opposition to employer-provided health care plans. In my opinion this should be a function of the state. If you’re more of a standard libertarian, maybe you believe it should be a function of some market in general. Very few people who really think about this issue believe it makes much of any sense for employers to be in charge of this process. But that’s something we’ve chosen through some kind of quasi-democratic process, and the ACA is designed to keep that less-than-ideal structure in place while universalizing access to health care. It’s an ugly compromise, and it’s a debate for another day. (For the rest of this, we assume the ACA mandate is constitutional. Again, debate that another day.)

The reality, however, is that that same quasi-democratic process has given us a basic idea of what it means to provide health care. It’s something we have (largely) defined in policy, and we have all kinds of rules about which things have to be covered, which things don’t, and so on. There is a certain set of people who reject even this much government, but this post isn’t really addressed to them. My point is that, for most people, what constitutes health care is a relatively defined set of activities. And that set includes contraception. This rule was necessary only because the law of the land – ACA – enshrined in policy the notion that contraception is part of a basic health care package. 28 states already had such policies in place before ACA, as well.

 

Core  and Non-Core Religious Activities

One of the things that I think really clarifies my position on this debate is a distinction between activities that are a part of a particular set of religious practices and activities that are undertaken by members of that religious group. A law that prohibited eating crackers on Sunday would be prima facie unconstitutional for a few reasons, but one of those reasons is that it interferes with the free exercise of a lot of religions. I made a joke in the thread at Kyle’s blog about how the Obama position doesn’t interfere with the Eucharist, and James pushed back because that’s not the entirety of Catholicism. I take James’ point, but I meant that as an illustration of something that is core to what it means to practice or “exercise” Catholicism.

On the other hand, provision of hospitals and schools is not something I consider part of what it means to be Catholic. Can you be a Catholic (a practicing, devout Catholic, that is; ignore the vast swathes of people who call themselves Catholic for other reason) without taking the Eucharist, being baptized, etc.? The answer appears to be no. Can you be a Catholic without running (or working in) a hospital? I should think you can. It follows, then, that the “free exercise” of a religion is something different (perhaps subtly) from the activities undertaken by members of that religion – even if those activities are sponsored from the very top of the church hierarchy.

A side note: The services provided by Catholic hospitals and religious schools in general are invaluable. As James pointed out in the other thread, churches have been in the education business a lot longer than the state. I hope they stay in. My own soon-to-be-blushing (one hopes) bride went to a Quaker school, where she received a first-rate education. It would be a loss to the nation if such institutions were to cease to exist. (This is my attempt to demonstrate that my position is not [solely, anyway] grounded in animosity.)

 

Regulating Non-Core Religious Activities

Okay, let’s pull it all together. What does Obama administration’s (hereafter we’ll just go with Obama) position do, and how does it fare against the Free Exercise Clause?

It’s important to note that it appears Obama and I more or less agree on the distinction I’ve made above (in case you were keeping score, this actually may be a first for us). The mandate does exempt churches from having to pay for contraception. What it includes are institutions (like hospitals) funded by religious organizations that are not part of the core religious function of those organizations.

This strikes me as exactly the right compromise. Mandating that employers must provide health care coverage (which, again, we’ve already agreed is stupid, but that’s what we have) and then extending that mandate to require payment for contraception would effectively prohibit the Catholic Church from existing in America without violating its own ethics. (The employment of priests and other officials of the Church is something I am putting in the “core” category; I think this is uncontroversial.) That sure looks like an obvious violation of Free Exercise.

Another aside: Note that, if you’re nodding along with this last bit, you have just agreed that a law can be discriminatory or violate someone’s rights without being explicitly intended to do so. This has a lot of applications, arises naturally in any discussion of the Constitution, and is not an invention of liberal activist judges.

Back to my point: the Church does not have to provide hospitals. It is not part of what it means to be Catholic. These hospitals don’t even require employees to be Catholics, nor do they restrict treatment to Catholics. They are a secular enterprise dedicated to a secular goal – health care provision. And health care provision is a thing that we have defined in policy, which does now include contraception. Would we allow a religious exemption for a Christian Scientist hospital that refused to pay for their employees’ health care at all? We would not (again, assuming ACA has to be the framework we’re working from).

 

A Practical Rejoinder

Even if all of this is true, it doesn’t make the case that we couldn’t grant an exemption if we really wanted to. That depends on how important we consider the issue. The wide availability of contraception is something a majority supports. Requiring health care plans to cover it is also widely supported. Even Catholics support it. Take a look at Kevin Drum’s statistics rundown for some evidence of these claims. The reality is that the weight of public opinion appears to be on Obama’s side here. I can’t fault him for going with it, and not only because I think it’s the morally correct thing to do (access to contraception being one of the cornerstones of the modern improvements in women’s health).

 

Going Further

Now, just a little bit of a thought experiment. How far does the Free Exercise Clause get us here anyway? Assuming again that the ACA is the law of the land, what if a Christian Scientist church (or whatever they have; I honestly don’t know) refused to provide health care plans that covered any modern medical techniques? Could we reasonably grant an exception to that? It seems to me like the answer is no. In which case, what has Free Exercise bought us?

Kyle suggests a framework predicated on “grave harm” or “substantial harm”. We probably all, or mostly, agree that that gets us to a place in the middle. It would require Christian Scientists to provide actual health care coverage but potentially leave some room for Catholics to refuse to provide contraception. But who defines “harm” in this case? Is it the democratic process? Because, as we see above, people basically agree that everyone should have access to contraception. How long before the Catholic Church’s position becomes as outrageous as the Christian Scientists’?

Mostly that’s food for thought, but it’s also a defense of my initial claim that this entire employer-provided health care coverage regime is patently ridiculous.

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162 thoughts on “A (Long) Musing On The New Contraception Rule

  1. I got into an argument a few years back about viagra and whether or not it should be covered by medicare/medicaid.

    My attitude was that it was a, I believe I used the term, “lifestyle drug” and, as such, should not be subsidized by taxpayer dollars. “Let the guy spend his own 8 bucks on a pill”, I said.

    The counterargument came that having sex was a right and that by denying this subsidy, I was preventing people from exercising their rights.

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    • I wouldn’t say some things are “rights”, per se, but I would say that they are important in the way some things can be even if they aren’t “rights”. All things considered, I think Viagra is (more or less) a drug meant to treat medical conditions that prevent one from doing something that (to many) is an important constitutive part of a fully realized life. I realize this is a lot of wishy-washy talk, but I would err on the side of “let’s just pay for it”.

      Similarly, I don’t think anyone has a right to contraception, but I think people have the right to (or the proper expectation of, if you prefer) a basic level of health care, which we have decided, through the democratic process we have, includes contraception. What’s more, I think that was the right decision – partly for the reasons I stated above w.r.t. Viagra, partly because I think (and people underestimate this) that it is a cornerstone of women’s health and it deserves to be part of a basic notion of what constitutes proper health care.

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      • I would err on the side of “let’s just pay for it”.

        I tend to agree on a personal level but there is a difference between “let’s just pay for it” and “let’s force those other people to pay for it despite their misgivings”.

        I imagine that we’ll see more of these distinctions as Islam becomes more of a prominent force in the US…

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        • Well, see there’s a fun rub.

          Paying for birth control pills is MUCH cheaper than paying for a pregnancy, for instance.

          Looking at a purely “what is cheapest, long term” — the pill is a ridiculously cheap little drug that prevents (or at least minimizes) all sorts of very costly things over a woman’s life.

          So I guess this is a case of telling them they have to offer the pound-wise as well as the penny-foolish choices. :)

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    • Two things:

      1.) It turns out, the majority of women who use birth control pills (and their equivalents) are doing so primarily for non-birth control reasons.

      2.) Even the actual birth control reasons can easily be viewed as health reasons rather than lifestyle reasons, in a way that I don’t think viagra can (and I think viagra can be seen as haing legitimate medical justifications that aren’t just lifestyle reasons).

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  2. The services provided by Catholic hospitals and religious schools in general are invaluable….It would be a loss to the nation if such institutions were to cease to exist.

    So the question is, is that a reasonable price to pay, in your opinion? If the Catholic church decides to get out of the hospital business in the USA (or at least reduce its footprint) because of this mandate and the prospect of future similar regulations, is our society better off? I’m not saying that it is or isn’t, but I think the point should be addressed.

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  3. First off, I agree with just about everything here, though I haven’t fully thought it out and considered all the possible implications of such an approach, so I reserve the right to “flip-flop” as they like to say.

    Second, I find this statement interesting: “(This is my attempt to demonstrate that my position is not [solely, anyway] grounded in animosity.)”  Is RB self-victimizing himself?  Or is it common practice for those who oppose this or similar measures to consider those in favor of them because of animosity toward the faith in question or faith in general?

    Lastly, assuming Ryan’s breakdown here is unacceptable to some, what of this compromise: Religious institutions can apply for exemptions to the law.  Whatever aspects of the ACA they refuse to adhere to on valid religious grounds are then offered, free of charge to the employee, by the state.  This is funded by eliminating the church-in-question’s tax-exempt status.

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  4. The notion of what is a “core” religious activity [or belief] is key here, but cannot hold.  First, that an outsider can make definitive judgments on the internal workings of a religion.  For instance, an early issue in American religious pluralism was What is Christianity?, that some doctrinal beliefs like the Trinity defined Christianity.  However, the Founders quickly realized that the government has no standing to make such distinctions.  [Separation of Church and state is far more than an opposition to theocracy.]

    I must demur from many of the assumed premises in the OP here, such as “[Catholic hospitals] are a secular enterprise dedicated to a secular goal – health care provision.”

    The Bible says that faith without good works is in vain, and the Roman Church is in the hospital business rather than the widget business for an explicitly non-secular purpose, that of Christian charity.  Our government has no standing to decree that it is not.

    This issue has been festering for awhile now, and the Obama Administration has just—quite aggressively—popped the pimple.  What “free exercise” as guaranteed by the First Amendment is more than just freedom of worship; religion and the question of God being more than just the kind you wind up on Sundays.

    [As for slippery slopes, far more likely than Mr. Bonneville’s caution of the excesses of Christian Science is that his assertion “access to contraception being one of the cornerstones of the modern improvements in women’s health” can be easily applied to providing abortions as well.]

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    • I think this all a good response. It’s something I find ultimately somewhat uncompelling because I think it rather overdetermines – that is, you say something is your religious prerogative, therefore government can never interfere. At some point, we have to start delineating things if we’re going to have any kind of functioning legal environment. If the Bible said faith without a standing Catholic army were in vain, we’d just have to compromise someone’s values to make that work.

      Your last point is a good one. I’m not much of a hard-liner on the pro-choice side (and my personal preferences are strongly opposed to abortion), but if a democratic majority decided that abortion were part of what we take to be a proper health care regime, I think I would side with the majority. We have not reached that point – and very clearly, given the debates and compromises surrounding ACA – so it’s not something we have to confront just yet.

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    • I share Tom’s reservations with the government deciding what is and isn’t core to religion.  It is one of the seemingly impossible to rectify areas where government and religion brush up against each other.  The government can restrict a Rastafarian’s use of marijuana, which I assume is not only predicated on a (fallacious) insistence on maintaining certain paramters for safety and health, but also because of how “serious” a religion the government considers Rastafarianism.  If it was Christianity instead of Rastafarianism, my guess is that the case would be much less cut and dry.  We also have the government deciding what is and isn’t religion at times; it seems to me that the government even considering the question is a violation of the 1st Amendment.

      I don’t know the solution here.  The government and religion are so intertwined, and I’d argue that most of the major faiths, Christianity in particular, benefit from their relationship.  As such, part of me wants to say that when you dance with the devil (i.e., Government), you dare to get burned.  As I offered above, would the Church be willing to forgo its tax-exempt status if that meant it was exempt from any ACA (or other governmental) provisions that violated its faith?  It reminds me of the case recently with the gazebo or whatever it was, where a church wanted to get all of the benefits of working with the government but not work within any of the parameters that are typically expected of groups working with the government in the public sphere.

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      • I share Tom’s reservations with the government deciding what is and isn’t core to religion.

        Ditto this.  I’m still not sure where I actually come down on this issue, but I am sure that those who don’t have any reservations about letting the government determine what is and is not a core religious function embody the reason I have such a distinct libertarian tilt.

        It’s not that we can’t sometimes make that determination, because in a polity we sometimes have no choice.  But if we don’t struggle to some extent with it and have some actual reservations, we’re just too authoritarian-minded for my comfort.

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        • Agreed that, eventually, a line needs to be drawn.  But we ought to be oh-so-careful as to where to draw it and oh-so-careful as to when to draw it.

          A problem that manifests in parallel to this (though not necessarily germane to this conversation here) is that many of the people making the biggest stink about stopping the government from making rules about Christianity are the same people making the biggest stink about using the government to make rules about other religions.  Which is a brand of cake-eating that makes me want to call their whole position disingenuous.

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    • The issue has been festering for awhile now, and the Obama Administration has just—quite aggressively—popped the pimple.

      It’s not aggressive just because you say it is, or even because you perceive that it is. The policy applies to all insurance plans, was not intended specifically for Catholic employers, and doesn’t seem the least bit aggressive to me.

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  5. If the people speaking for Catholics don’t complain about being forced to contribute, via taxation, to a legal system that features the death penalty, and if Catholics don’t complain about being forced to contribute, via taxation, to a political system that makes war, I simply cannot find enough time in my day to care about their objections to this alleged imposition.

    I think what we’re seeing, once again, from social conservatives is the desire to have sway over a woman’s healthcare decision-making in a way that is simply unimaginable if the regulation was being applied to men.

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    • I found a Catholic who was complaining about war. It’s a woman, though, so I don’t know if that means that she’s a hypocrite or what.

      Is she allowed to hold the position? I’ll try to see if I can get her to post. If she won’t post, can I argue on her behalf? (She says she’s not very good at typing or writing at the level she sees here in the comments.)

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      • I think Sam’s point is that this fight against this regulation has been organized by the Church at the highest levels. No such fight was organized by the Bishop’s against the Iraq War, torture, or anything else Catholic’s are supposedly against. But, make them pay for the same insurance package that Wal-Mart does? Well, then it’s the Reformation all over again and Catholicism is under attack.

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      • There are plenty of Catholics against war. But the Catholic Bishops who are currently doing the wailing and the gnashing of teeth never say boo about it. Just as they never say boo about being forced to pay for the death penalty. But when it comes to keeping women in their place, the Catholic Bishops – the same people who aided and abetted child molesters for decades – suddenly claim to occupy the moral and political high-ground. It’s nonsense.

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  6. There’s a side question I never hear asked in this debate, that I would be curious to see asked (and answered):

    Since Health Plans that do not cover contraception are significantly more expensive to fund, would either side be OK if Catholic/other religious employers were able to opt out of contraception, but in doing so agreed to pay higher premiums so as not to be subsidized by the other plans for that choice?  

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    • Ooooo…

      I touched on this idea in a different way, but I had assumed that the plans with contraception were MORE expensive.  Ultimately, too often religion wants protections and privileged status from the government but never any of the accountability or responsibility that we would expect to come with that protection and privilege.

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      • My, ahem, operation cost $20.

        One $10 co-pay for the initial consultation (which also covered an *AMAZING* little pill that they gave me to take a half hour before the operation) and on $10 co-pay for the, ahem, operation itself.

        I imagine that the insurance company saw it as “and how much will we be saving when it comes to pre-natal care?”

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      • Baby Girl cost well over $10,000 to bring into this world, and that was just delivery, a cost my (employer-subsidized) health insurance paid in full, not to mention all the care prior to and post-arrival.

        That’s a LOT of little pills.

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    • I think I’m still a no. A lot of my position here is based on how I see contraception fitting into a broad understand of women’s health issues. As Chris has noted, it’s about a lot more than simply pregnancy, although I refuse to discount the value of giving women more control over their reproduction. On that I may just have to be at odds with Catholics, which is why my disclaimer says my position isn’t *solely* about animosity.

      What’s more, I think there is a general cultural consensus that supports my position, which policy reflects.

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  7.  

    New Poster here.

    A comment on this:  “Very few people who really think about this issue believe it makes much of any sense for employers to be in charge of this process. But that’s something we’ve chosen through some kind of quasi-democratic process, and the ACA is designed to keep that less-than-ideal structure in place while universalizing access to health care.”

    It’s my understanding that employer provided health care came about due to the wage controls imposed on the economy during WW2.  Since employers could not attract staff with pay, they used this benefit.  The fed gov also allows these employer costs to be deducted from company taxes.  I wouldn’t call that anywhere near “chosen” or even “quasi democratic”. 

    And, given the long standing and extensive “meddling” by gov’t in health care, I reject the assertion that “for most people, what constitutes health care is a relatively defined set of activities.”  Rather, the population has simply grown accustomed to what has been decreed.  What people would consider acceptable standards might very well be much different provided they had access to other viable options.  This, of course, isn’t possible since the very same gov’t meddling has prevented it-albeit with collusion from the industry.

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      • Given that less than 50% of the eligible population (my figures aren’t exact) actually vote, I wouldn’t call any president or administration “elected” either, certainly not given the common understanding of “democracy”.  Given the constant exceeding of constitution (strictly interpreted ofc) by the fed gov (most of what they do exceed that authority. ) Given that during this same war, the Census was used to identify Jap-Americans, round them up, and house them in concentration (relocation) camps, I wouldn’t call much of what the administrations did during WW2 as being in support of “democracy” or what the “duly elected” wanted either.  IIRC, the majority of folks didn’t want war with Germany or Japan prior to Pearl Harbor.  On my slide scale of “duly elected  – dictator” I’d put on the side leaning to the dictator, but hey, I think the constitution means what is says it means.  Other opinions differ.  :)

        I’d also like to add a non related comment.  I’m glad I found this website.  I’ve read it for several months and have enjoyed it.  Lots of well reasoned thinking and writing.  While I disagree with a lot written here, the discourse is almost always respectful, something I don’t see much elsewhere on the interwebs.  You all are to be credited.

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    • Welcome, Damon!

      You are quite right about the origins of the tax deduction for health care benefits.  It began as a way for employers to skirt wage controls, one that was apparently blessed by an IRS bureaucrat.

      I wouldn’t dignify it with the term democratically chosen.  And that’s using “dignify” very, very loosely.

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  8. By the way, this is more in reference to something James said in the other thread: condoms aren’t part of this policy. Condoms, morning after pills, and anything else that doesn’t require a prescription, wouldn’t be covered by insurance anyway. This refers only to prescription birth control methods (mostly the pill, ring, etc.).

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    • Which are usable only by women. We’re being silly if we think this is anything more than religious fundamentalists demanding that they be allowed to keep women in their place. They don’t want to change with the times and they’re expecting the world to cheerlead them for it.

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  9. My question is this: is health care a form of concentration? Can employers ban certain uses of other types of compensation? Can they say that employee’s can’t buy condoms with their salaries, for example? If not, then how is saying what they can and can’t buy with their prescription drug coverage different? I’m open to being shown how it’s different, but at the moment, I don’t see it.

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  10. Thank you for your musings, Ryan.  We’ve debated some of these points already, but I’d like to reiterate that official Catholic teaching, which some Catholics desire to follow, considers immoral not only the use of contraceptives, but also any close material cooperation with their use.  Therefore, the HHS mandate will require Catholics to act in a way that violates their religious norms.  Many Catholics already do so and don’t care, but some, a minority, understandably wish to live according to their religious faith.  If religious liberty means anything, then we should honor that wish, unless there’s a sufficient reason to violate their religious liberty.  As universal access to contraceptives could be achieved without requiring church’s to provide coverage, I see no sufficient reason to do the latter in order to attain the former.

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  11. I guess at the end of the day, it comes down to this. I simply find it absurd that the requirement that all employer sponsored health plans (including plans sponsored by Catholic hospitals and universities for their employees) provide coverage for a host of basic services, including those related to family planning, is somehow an attack on religious liberty.  Catholic universities and hospitals are primarily secular institutions, employing, teaching, and treating a hugely diverse cross section of America, charging fees for the services they render, receiving government grants, contracts, subsidies, and payments.  The employees at these institutions, whether they be doctors, nurses, orderlies, janitors, professors, or clerical workers are rarely priests or nuns these days and are employed for their technical and professional prowess rather than their spiritual vocation, and many, if not most, are not Catholics.

    There is no absolutely zero reason that the employees of these institutions should not be entitled to receive the same basic health benefits as those mandated for all other employer based programs in the United States.  No one is being forced to use contraception against her will or conscience by these regulations.  Quite simply, their employer is not being allowed to impose the beliefs of a handful of unelected men to deprive them of a medical service that an expert panel, in accordance with its legislative mandate and the democratic process, has deemed an essential health service.

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          • I point to the 28 states that already have the same regulations without those laws being overturned. If the Catholic Church really thought it was unconstitutinal, they would’ve gone after those state laws. This is PR and more self-victimization by the Bishops of the Catholic Church,

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            • I point to the 28 states that already have the same regulations without those laws being overturned.

              Note: it appears that a large number of those 28 states have religious exemptions of the sort that the HHS is denying here.

              There are a number of states that do not, of course, so your point still stands on the raw constitutionality, but I wanted to point that out.

              A lot of people are suggesting that since 28 states are already doing this that the pushback to making it national cannot be legitimate. But it doesn’t appear that 28 states are doing what the HHS is doing here, but rather 11 (at most, others are saying 8) or so.

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      • That doesn’t seem fair. The law creates entitlements for employees of all other establishments. His claim is that these people should also be entitled to those same things.

        He may believe they are also entitled to these things in the absence of the law, but it seems like it should be relatively uncontroversial to point out that the law has created some entitlements.

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          • Well, it does, right? The entire reason this rule had to be made was because the ACA requires that health care coverage include birth control. If you work for a non-Catholic organization, it’s relatively uncontroversial (assuming that this part of ACA is constitutional) that that organization has to provide you with health coverage that includes birth control. This is certainly an entitlement, right?

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            • Yeah, this always struck me as weird.  Obviously lots of us here are of the understanding that paying for birth control is surely cheaper in the long run than paying for the unplanned pregnancies and the health care of the resulting kids, even though they’d be paying for all women’s birth control in the first case (or at least all those who chose to use birth control) and only some pregnancies/kids in the latter case.

              Is there anyone here with real-world health insurance industry experience that can explain this apparent paradox to us?  Because lord knows we all agree those greedy corporate insurance bastards don’t normally pay out a penny more than they have to.  So what gives?

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              • On this, I’ll probably blame the corporations buying the health insurance instead of the health insurance company.

                Most likely, there are several package offered to large employers, and large employers who pay low or middle-level wages are more likely to choose the more stingy insurance plan that may cover pregnancy because that’s part of every insurance plan but doesn’t cover birth control because that’s considered a “luxury” to some.

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              • I don’t know the answer however i’ve had the experience of being  told by an insurance company they wouldn’t pay for something because it was preventive care. Does that make economic sense, i can’t see how it does but obviously there is some calculation that leads to that.

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                • Tobacco cessation is rarely covered, despite the enormous cost benefits of fewer smokers. As best as I can figure, the reason for this is that I am with one insurance company for a limited amount of time. The costs of Zyban? that they’re paying for. The eventual health costs of a long-term smoker? Well, what are the odds that I will have the same insurer? There’s a decent chance I’ll be on Medicare when it’s time to get fitted for an oxygen tank.

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                    • Oh, I agree. But I think the same mentality can be in effect. It’s less comparing the costs of prevention versus the costs of pregnancy. More, comparing the costs of prevention, minus those that would buy the prevention for themselves OOP, versus the cost of pregnancy, minus those who will quit their jobs during pregnancy or change carriers.

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                    • Assuming the math works out, that could explain it.

                      In that case it would be a sort of collective action problem.  Each insurer would be better off if all insurers offered contraceptive coverage (because then they wouldn’t inherit another insurer’s unplanned pregnancy/child), but no one would be better off doing it on their own, and each would be best off every insurer but themselves covered it.

                      Prisoner’s dilemma sure has lots of explanatory power.

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              • To follow up on my own question, here is a study demonstrating that emergency contraception is cost effective. And here’s one showing that 15 different contraceptive methods are all cost effective.

                I don’t think we can assume that health insurance executives are so in love with the idea of population growth that they are willing to expend corporate resources on producing more babies.  And while claims of sexism are common, I find those rather hard to reconcile with claims of corporate greed (corporations are greedy and want to maximize their profits except  that they’re willing to forgo profits just to keep women in their place).

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  12. Fished up thread.

    The issue, that apparently, my Libertarian/librul friends can’t figger out is that gummint is forcing the Micks to participate in an action that violates certain doctrines/tenets of their faith. Any libertarian worth a pint of urine would be at the barricades with the Micks on this, it ain’t rocket science.

    Fish that Kenyan-Marxist and his coterie of drooling ideologues.

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  13. If Churchs are exempt, what stops Big Corp X from establishing the Church of Big Corp X with a primary tenet being that the enforcement of a minimum wage is immoral and claiming an exemption to the minimum wage law?

    Oh… because the Church of Big Corp X isn’t a REAL religion?  Well, well… now who is stepping on religious liberty…

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      • I think we sometimes play too fast and loose with the term “discrimination”. It is not discrimination for a bus company to refuse to hire blind people as drivers, since sight is a legitimate requisite of the job. I can see a case being made that being a member of a faith is requisite to hold certain, but not all, positions in a religious institution. I’m sure there exist positions where the requisites might be questionable, but probably better to err on the side of allowing the business to dictate the terms of their hiring. Numerous jobs require high school or college degrees, when it is certainly possible to do the job without them and/or to acquire the necessar skills through other means. Yet these criteria stand without being labeled discriminatory.
        Basically, it is not discriminatory to refuse to hire unqualified people.

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    • The word discriminate has picked up a negative connotation, but I’m not intending it that way.

      I know, for example, that you must agree to a certain code of behavior to work at BYU.  My understanding (and it may be incorrect) is that this is generally a latitude given to religious organizations.

      Is this incorrect?

      If it isn’t, then the Catholic church has a solution here: just hire people who agree not to use contraception.  You give them the health coverage with a benefit they won’t use, and you’re golden.

      I mean, I think this is hamfisted and stupid and all, but I don’t see that there aren’t already a couple hundred other workarounds, too.  The Catholic church has operated just fine in California with these requirements.

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  14. I think we can look at this as an issue of honesty in advertising. The state has established specified requirements for what can be called a “hospital” or an “insurance”, an important regulatory function. And because these things serve the common good, the state has also carved out benefits and exemptions for them that ordinary commercial services do not receive. If an organization objects to these definitions they should be able to run their own pseudo-service at the cost of sacrificing the state benifits and having to tell potential employees explicitly that they are only providing a pseudo-service.

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  15. So question to the objectors:
    This ruling is essentially a ruling on what qualifies to the Feds as “health insurance” under the mandate. Hypothetically avoiding this provision is as simple as opting to not provide health insurance and simply providing a market rate boost to someone’s income to buy on the private market.The question here I guess is: Why not do that if it’s really a matter of conscience?

    The tax benefits of offering benefits (insurance) over a tax increase? Well sorry, bub but if this is such an outrage worthy moral issue, then an extra few percentage points for taxation shouldn’t be a huge issue, right?

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  16. First time poster here, after just finding your site. I’m really impressed by the level of the conversation, looking through several topics. On this issue I have 2 comments, and they come from the point of view of a non-Catholic who works for a Catholic organization.

    First, how many “Catholic organizations” are really part of the church? Most Catholic universities are functionally independent, with bishops having no say in their operation. (See, e.g., the inability of the bishops to prevent Obama’s appearance at Notre Dame’s commencement.) Is the same true for the hospitals? And if a university can call itself Catholic without being a direct part of the church hierarchy, what’s to prevent a trucking company from doing the same? Or Domino’s Pizza? Canon law probably wouldn’t allow it, but canon law should have no legal standing in US courts.

    Second, if the 1st amendment means anything, it has to mean that each of us is free to exercise our religion as we define it, not as some outside hierarchy defines it. That is, the view of the bishops on what is or is not Catholic should be no more important to our government than the view of Jane or John Doe in the pew. And since each of us could define our own religions in whatever crazy way we wanted, the only way for the government to operate is to pass laws that treat all citizens exactly the same. Of course, this also means not passing laws specifically designed to harm one particular religious group, but I don’t see the contraception rule as a specific attempt to hurt Catholic citizens.

    In my view, the bishops should be treated exactly like CEOs of other large, non-profit organizations. If the board of the Red Cross suddenly decided that they were against minimum wage laws, I don’t think we would consider waiving them. We would all miss the Red Cross if it suddenly closed its doors, but we wouldn’t seriously contemplate redefining our system of legal rights just to satisfy that one board’s viewpoint. And no one would even think to bring up the 1st amendment in the discussion.

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    • Hi Christopher!

      The short answer to your Domino’s question is that you cannot be a for-profit entity and a religious organization at the same time. There is a question as to whether Harvard University could suddenly declare itself Catholic. The issue is not whether the Catholic Church recognizes it as such, but whether it convinces the government that it has a religious, in addition to educational, mission. Being involved with the Catholic Church may make that argument easier, but it’s not necessary. Abilene Christian University is associated with the Churches of Christ, which has absolutely no hierarchical structure whatsoever.

      The distinctions between religious and non-religious entities goes far beyond this discussion. Even though religious entities get some perks, we have had surprisingly little in the way of abuse of this. Mostly because being a religious organization means that you are a non-profit. That’s not a decision you enter in to just to avoid paying for contraception.

      I’m not particularly worried about Red Cross abolishing the minimum wage. Why? First, lots of organizations have people working for them that make less than minimum wage: volunteers. But when they want someone to show up on time, use skills they actually have, and so on… well, sometimes they can get volunteers to do it, but ultimately they end up paying people something close to market wages (minus some feel-good discount) because if they didn’t, those people would work somewhere else.

      None of this is to say that I am with the Catholic Church on this. I actually agree with a fair amount of what you are saying. I just think the examples are a little off. I may write a post with my thoughts on the matter, but for me it comes down to this: If freedom of conscience is important here, I’m not sure why you should have to be a church – rather than just a moral individual – to exercise it. And if it’s something too important to allow from freedom of conscience, then I don’t exactly see why churches should be exempt.

      I could, I suppose, see a reason to treat for-profits and non-profits differently, giving the non-profits more latitude as we do with a lot of other things. But, if anything, but that’s not a religious thing. And to me, I’m not sure any of it should be. This should be a freedom of conscience issue, and not a freedom of religion issue. Whichever way we decide.

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      • Will, thank you for some very helpful clarifications to the point I was circling around in vain.

        I don’t want to go too far from the original topic, but you’ve raised a question I’ve never considered before: in our modern, highly pluralistic society, is there any functional difference between freedom of conscience and freedom of religion?  I know nothing of the underlying constitutional law, but I have a hard time thinking of any difference between these two ideas that doesn’t just serve to give preferential treatment to large, organized religions over the individual with his/her own personal set of moral and philosophical beliefs.

         

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  17. It turns out religious liberty might have been dead for the past 12 years.

    http://motherjones.com/politics/2012/02/controversial-obama-birth-control-rule-already-law

    President Barack Obama’s decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.

    [Despite the longstanding precedent, “no one screamed” until now,” said Sara Rosenbaum, a health law expert at George Washington University.

    In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don’t offer prescription coverage or don’t offer insurance at all are exempt, because they treat men and women equally—but under the EEOC’s interpretation of the law, you can’t offer other preventative care coverage without offering birth control coverage, too.

    “It was, we thought at the time, a fairly straightforward application of Title VII principles,” a top former EEOC official who was involved in the decision told Mother Jones. “All of these plans covered Viagra immediately, without thinking, and they were still declining to cover prescription contraceptives. It’s a little bit jaw-dropping to see what is going on now…There was some press at the time but we issued guidances that were far, far more controversial.”

    After the EEOC opinion was approved in 2000, reproductive rights groups and employees who wanted birth control access sued employers that refused to comply. The next year, in Erickson v. Bartell Drug Co., a federal court agreed with the EEOC’s reasoning. Reproductive rights groups and others used that decision as leverage to force other companies to settle lawsuits and agree to change their insurance plans to include birth control. Some subsequent court decisions echoed Erickson, and some went the other way, but the rule (absent a Supreme Court decision) remained, and over the following decade, the percentage of employer-based plans offering contraceptive coverage tripled to 90 percent.

    “We have used [the EEOC ruling] many times in negotiating with various employers,” says Judy Waxman, the vice president for health and reproductive rights at the National Women’s Law Center. “It has been in active use all this time. [President Obama’s] policy is only new in the sense that it covers employers with less than 15 employees and with no copay for the individual. The basic rule has been in place since 2000.”

    Not even religious employers were exempt from the impact of the EEOC decision. Although Title VII allows religious institutions to discriminate on religious grounds, it doesn’t allow them to discriminate on the basis of sex—the kind of discrimination at issue in the EEOC ruling. DePaul University, the largest Roman Catholic university in America, added birth control coverage to its plans after receiving an EEOC complaint several years ago. (DePaul officials did not respond to a request for comment.)

    As recently as last year, the EEOC was moderating a dispute between the administrators of Belmont Abbey, a Catholic institution in North Carolina, and several of its employees who had their birth control coverage withdrawn after administrators realized it was being offered. The Weekly Standard opined on the issue in 2009—more proof that religious employers were being asked to cover contraception far before the Obama administration issued its new rule on January 20 of this year.

    “The current freakout,” Judy Waxman says, is largely occurring because the EEOC policy “isn’t as widely known…and it hasn’t been uniformly enforced.” But it’s still unclear whether Obama’s Health and Human Services department will enforce the new rule any more harshly than the old one. The administration has already given organizations a year-long grace period to comply. Asked to explain how the agency would make employers do what it wanted, an HHS official told Mother Jones that it would “enforce this the same way we enforce everything else in the law.”

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