I’ll see your Pastor Rick Warren and raise you a Bishop Gene Robinson.
In the high-stakes symbolism that the Obama Inauguration has become, the President-elect seems intent on one thing, making sure that Americans see themselves reflected in some aspect of the ceremonies, and that everyone is made just a little uncomfortable by the presence of someone with whom they disagree. Obama is certainly not shying away from controversy.
Bishop Gene Robinson of New Hampshire, the first openly gay man elevated to Bishop in the Episcopal Church, will offer a prayer at an inaugural event held on Sunday at the Lincoln Memorial. Robinson’s consecration as Bishop caused a few conservative congregations to affiliate with more socially conservative dioceses in the worldwide Anglican Communion, rejecting their participation in the governance of the US Episcopal Church. Ironically most of those have affiliated with African dioceses, as the first African-American President welcomes the prayers of Bishop Robinson.
With the release of yet another set of interim final regulations on Friday, the Obama administration has ostensibly provided another option for eligible organizations to avail themselves of the birth control accommodation. But in reality, what the administration has done is shot itself in the foot—again.
The Obama administration has consistently bent over backwards in its efforts to appease the religious liberty concerns of employers who complain that the birth control benefit and the existing workaround are violations of their religious faith. And on Friday, with the release of yet another set of interim final regulations, the Obama administration has ostensibly provided another option for eligible organizations to avail themselves of the accommodation. But in reality, what the administration has done is shot itself in the foot—again.
What exactly is the Obama administration’s strategy here? To keep offering more and more accommodations—more and more compromises in the hopes that religious objectors to contraceptive coverage will be mollified?
If history is any indication, that’s not going to happen any time soon.
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As any good negotiator will tell you, when you’re in a negotiation with an obstinate party, it is important to assess the goals of that party and come up with a strategy for making sure that you get what you want. This is called a “concession strategy.” If one party to a negotiation is immovable and the other party is a pushover, the immovable party will inevitably walk away having gotten everything they want while the pushover is left with nothing.
Usually, pushovers are so eager to make a deal that they begin the negotiation without a concession strategy; they will offer a deal, and when it is rejected they will immediately concede their position and offer another deal. When that deal is rejected, pushovers will concede their position again and again until there’s nothing left to concede.
In the battle between the Obama administration and the religious right, the Obama administration is the pushover, and the religious right is the immovable party.
The Department of Health and Human Services has made concession after concession in an effort to ensure all women have access to affordable birth control, while the religious right has remained immovable, demanding acknowledgement of their religious beliefs above the health, well-being, and rights of women.
Friday’s concession—detailed here by my colleague Jessica Mason Pieklo—is no different.
In a traditional negotiation, the concessions being made harm the party making them. In the case of the birth control benefit, however, the concessions that the Obama administration keeps making aren’t really harming the Obama administration itself—they are harming the women that the policy is intended to benefit.
For two years, the administration has attempted to work in its own version of good faith with religious objectors—primarily the religious right and the Catholic bishops—who claim that requiring employers to provide birth control to their employees violates the religious faith of those employers. And for two years, these religious objectors have remained unsatisfied with each and every concession offered to them, even when those concessions were originally suggested by the religious objectors themselves.
After an outcry by the religious right and the Catholic lobby when the birth control benefit was first announced back in February 2012, the administration’s willingness to work with these religious objectors and to take their religious feelings into account seemed like a good idea, at least politically.
The 2012 presidential election was less than a year away, and Republicans were busy trying to fire up their base by accusing President Obama of waging a war on religion.
In early December 2011, Republican presidential nominee Rick Perry released a truly ridiculous television ad, in which he bemoaned the fact that gays can serve openly in the military but kids can’t openly celebrate Christmas or pray in school, and pledged to end Obama’s “war on religion.”
Later that month, the United States Conference of Catholic Bishops took out full-page ads in the Washington Post and New York Times in which 151 Catholic leaders of all stripes responded to the HHS “Preventive Services” Mandate—scare quotes and all—and demanded that the Obama administration protect conscience rights.
The Obama administration was being slammed by claims from Catholics and evangelical Christians alike that its contraception policy demonstrated that the administration was hostile to religion. And at the time, with headlines like “Catholic Church vs. Obama in Election Year Showdown” saturating the news cycle, doing something—anything—to appear respectful of religious freedom while at the same time making certain its policy of ensuring that women would have access to preventive services, including contraception, without co-pay seemed like the best course of action for the administration.
And so the administration blinked. It crafted an accommodation for religious objectors and set itself up for a series of legal disasters that would follow.
Under the accommodation, certain religious groups who oppose providing contraceptive coverage can simply hand that job over to their insurance companies after declaring their religious opposition by filling out a form—Form 700.
This accommodation seemed sensible enough. Unfortunately, it initially satisfied some religious groups but not others.
The Catholic Health Association (CHA), which represents over 600 hospitals and 1,400 other health facilities, and is the largest group of nonprofit health-care providers in the United States was appeased. “The Catholic Health Association is very pleased with the White House announcement that a resolution has been reached that protects the religious liberty and conscience rights of Catholic institutions,” said the group’s president and CEO, Carol Keenan, when the accommodation was first announced in February 2012.
Four months later, however, the CHA did an about-face: It sent a five-page letter to the Department of Health and Human Services opposing the compromise.
The Catholic bishops, on the other hand, remained stalwartly opposed to the compromise throughout the Obama administration’s attempt to negotiate a compromise that would appease all involved parties, claiming that compliance with the accommodation would be “material cooperation with evil.”
According to the bishops, it doesn’t matter whether you’re taking birth control, providing birth control to women, or facilitating some process by which birth control is provided to women; all of these violate the Catholic faith, no matter how distant or uninvolved the Bishops are from “the act.” Never mind that, according to the Guttmacher Institute, 98 percent of Catholic women ages 15 to 44 who have had sex have used a contraceptive method other than natural planning, 68 percent of Catholic women and 74 percent of Evangelical women use “highly effective” methods of birth control—sterilization, hormonal birth control, or intrauterine device (IUD)—and 69 percent of women of all religious faiths use such highly effective methods.
Ultimately, the religious right’s staunch opposition to contraception does not reflect the reality of its use among women, some of whom work for the very organizations that are seeking to deny them the birth control benefit.
To date, 65 cases challenging the accommodation have been filed by non-Catholic and Catholic religious organizations, many of which receive federal funds and/or tax breaks to be in the business of denying benefits for the people who work for them. They argue that the accommodation essentially works as a “permission slip” for contraception, and does not adequately separate the religious organization from the flow of contraception between their insurers and their employees.
The most notorious of the lawsuits challenging the accommodation was filed by the evangelical Wheaton College, which, like the University of Notre Dame, offered contraception coverage in its health insurance plans before deciding that to continue to do so in compliance with the birth control benefit would violate its religious liberty. A mere four days after the Supreme Court ruled against the government in Hobby Lobby—citing the accommodation as the reason—the Supreme Court signaled in its Wheaton College order that the accommodation itself might also be a violation of religious liberty.
In blocking the government from applying the accommodation to Wheaton College, the Court said Wheaton College did not have to fill out the self-certification form, Form 700. Wheaton College could simply inform the Department of Health and Human Services of its religious objections in writing.
Some commentators took the Court’s ruling in Wheaton College to be an invitation to further tweak the accommodation to the birth control benefit. And given today’s release of further tweaks to the birth control benefit and accommodation, the government did too.
I fail to see why.
Even though the Court blocked application of the accommodation to Wheaton College, it expressly stated that its ruling was not on the merits: “[T]his order should not be construed as an expression of the Court’s views on the merits.”
In other words, after full consideration, the Court very well could have found that Wheaton College’s objections to filling out the self-certification form have no merit and might have allowed the government’s accommodation to stand.
But the Obama administration—pushover that it is—didn’t bother waiting for the Supreme Court to issue a final ruling in the Wheaton College case. (That will likely happen during the Supreme Court’s next term.)
Instead, taking its cue from the Supreme Court’s Wheaton College order, the administration released new regulations allowing eligible organizations to inform the Department of Health and Human Services in writing of their religious objection to contraceptive coverage so that, as before, a third party can step in and provide that coverage in the religious objector’s stead. In its rush to appease these religious objectors, did the Obama administration stop to think that perhaps these religious objectors cannot be appeased because they are immovable? Has the administration learned nothing from its previous negotiations with the religious right?
The Obama administration’s willingness to accommodate religious objectors has done enough damage.
First and foremost, offering more and more concessions simply sanctions employers’ efforts to deny employees their right to earned health benefits, all in the name of “religious liberty.”
In addition, these concessions have led to disastrous results in court: The accommodation provided the U.S. Supreme Court the ammunition it needed to rule in favor of closely held for-profit corporations like Hobby Lobby and Conestoga Wood, which had complained that they were “persons” under the Religious Freedom Restoration Act and that the birth control benefit forced them to violate their faith. According to the Supreme Court, the very existence of the accommodation allowing for religious exemptions from the birth control benefit necessarily meant that the birth control benefit itself was not the “least restrictive means” of ensuring that women would have access to contraception without co-pay. And that was the key reason for the administration’s profound defeat in Hobby Lobby.
By further tweaking the accommodation, the administration has all but admitted that the current iteration of the accommodation will fail the “least restrictive means” test once the Wheaton College case winds its way back up to the Supreme Court, just as the birth control benefit failed that test in the Hobby Lobby case.
So why is the administration forcing the error? Does the Obama administration have a concession strategy, or is it simply going to keep bending to the religious right’s will and, in so doing, undermining women’s reproductive rights?
The Obama administration should have allowed the courts time to sort out the current contraception conundrum because if history is any indication, there’s no concession that the Obama administration can offer the immovable religious right that will make them happy.
So rather than try, the Obama administration should have just let the legal chips fall where they may.
Instead, the Obama administration has opened itself up to a host of new lawsuits that jeopardize its ability to maintain its commitment to providing a full range of reproductive health-care benefits—including contraception—to the women who have earned them.
In a windowless room in a Washington hotel, a religious summit of sorts is taking place. The protesters who make an annual pilgrimage to the nation’s capital for the March for Life have gathered to “meet and greet” the very Catholic Rick Santorum, father of seven, and the very Protestant Jim Bob Duggar, father of 19.
What unites the two is a simple belief: that a woman should be willing to break her body in childbirth for the sake of bearing as many children as possible.
The march is an annual protest, held on the anniversary of the Supreme Court decision Roe v. Wade, which legalized abortion, making it the perfect platform for Santorum, the former contender for the Republican presidential nomination whose signature issue is his no-exceptions opposition to abortion, even if he is better known for his views on gay sex. (Santorum also opposes contraception.)
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In one corner, several children and young people converse with the older two Santorum girls; across the room Jim Bob Duggar, star of the TLC reality show 19 Kids and Counting, is talking with an elderly couple from Wisconsin, cheering the 2013 passage of that state’s forced ultrasound law, which he calls “the heartbeat bill” for its requirement that technicians performing the medically unnecessary ultrasound mandated by the law for women seeking abortions also “provide a means for the pregnant woman to visualize any fetal heartbeat.” His wife, Michelle, is chatting up another couple.
As Santorum makes his way toward the door, an older man approaches to ask the former U.S. senator from Pennsylvania if he’ll be running for the GOP presidential nomination in 2016, as he did in 2012. “I’m thinking about it,” Santorum replies with a smile.
* * *
The meeting room areas of the Hyatt Regency Washington on Capitol Hill, which served as home base for the March for Life activists, have all the charm of an underground bunker. Down the escalator from the room where the Santorum-Duggar meet-and-greet took place, exhibits by anti-choice groups, all with a distinctly religious flavor, occupied a drab conference space in the building’s basement.
Crossing the threshold into the exhibition hall was like entering a time warp into Catholic culture as it existed before the modernization attempted by the Second Vatican Council in the 1960s. There were booths staffed by nuns in habits—the medieval dress abandoned by most orders after Vatican II—and one staffed by robed monks.
Ubiquitous among the give-away trinkets that graced exhibit tables were plastic rosary beads. And everywhere, there were images of Mary, mother of Jesus, in her many incarnations. Human Life International favored Our Lady of Czestochowa, otherwise known as the Black Madonna, depicted in the famous icon as a dark-skinned woman with a dark-skinned baby. Our Lady of Guadalupe is another popular image among the anti-choice Catholics who dominate the March for Life scene. The monks used a Madonna image as the logo of their Cafe 4 Mama, “the pro-life coffee.”
At the table for Archangel Gabriel Enterprises Inc., staffed by a middle-aged Black man (one of very few Black people among the March for Lifers), a statuette of a Mary-like white woman was styled as a kind of hipster teenage mom, her veil replaced with a floppy white beret, her customary blue-and white robes reinterpreted as a loose tunic-and-vest ensemble. But what really set her apart from standard images of the Blessed Mother was her big, pregnant belly, complete with protruding navel. Surrounding her was a set of blue glass rosary beads. Each bead, said the man staffing the booth, was to represent a tear, and inside each “tear” was the image of a fetus, rendered in gold-colored metal. The set could be had for $20. Laid out within the circle formed by the beads were three small models of beige-colored fetuses.
Here was the fundamental difference between the pre-Vatican II church and the right-wing Catholic cults of today: In the old days, such a graphic depiction of a pregnant Mary would be unthinkable, and fetal imagery was absent from religious paraphanalia. Before women had access to birth control and the legal right to abortion, such explicit depictions were unnecessary as objects of veneration. Church and state were in agreement on the limits of a woman’s freedom.
Then, with the rise of the women’s movement, state betrayed the patriarchy, first with the Supreme Court decision in Griswold v. Connecticut in 1965, which guaranteed a right to birth control, and then in 1973, with Roe v. Wade. The patriarchy responded with all the elegance of an abusive husband.
For respite from the fetuses and madonnas, I visited a booth whose materials featured slick and appealing graphics, devoid of developing embryos or religious regalia. “Save the Storks,” read the backdrop behind the table. “Are you saving actual birds?” I asked of the young white woman who staffed it. “No,” she said, laughing. The organization, she said, provides vans equipped with state-of-the-art ultrasound equipment that “can be parked right outside Planned Parenthood clinics.” The vans are painted in cheerful shades of blue and pink, some with the slogan, “You Have Options!”
Next to Save the Storks was a booth staffed by nuns, a display rife with religious trinkets and literature. An enormous tapestry of Our Lady of Guadalupe provided their backdrop. I plunked down $5 for a sticker book, Saints for Girls. I don’t know why. Most of them, naturally, met terrible fates.
Near the table that displayed “A Window to the Womb: 4D Ultrasound Images,” was a booth for Tradition, Family and Property (TFP), an organization born in 1960 of the backlash to land reform in Brazil, whose founder, Plinio Corrêa de Oliveira, described the Spanish Inquisition as “a glorious moment” for the Roman Catholic Church. TFP, which was also allied with the Pinochet regime in Chile and made common cause with the leaders of apartheid South Africa, is an all-male organization that trains young men in medieval combat.
* * *
As the marchers made their way to the National Mall on a sunny, frigid day with windchills below zero degrees, the streets seemed flooded with the green-and-white signs doled out by the Knights of Columbus stamped with black block letters reading “Defend Life.”
Several women drifted by with pink signs. One read “Conceived From Rape: I Love My Life.” An analog version read “Mother From Rape: I Love My Child.”
Young people were everywhere, recruited from Catholic colleges and high schools. Many carried signs that read “I Am the Pro-Life Generation.”
About a block from where a rally was staged on the National Mall as the kick-off event for the march, which would culminate at the Supreme Court, was a makeshift platform festooned with yellow balloons and flanked with yellow-and-white papal flags. Three young men in matching, hippie-style, hand-woven hoodies chanted anti-choice slogans, while a drum corps below, wearing the same outfit, performed in response. A big, yellow banner behind them simply read “LIFE.” It was as if the young people figured Pope Francis was just kidding when he urged the church to lighten its emphasis on opposition to abortion and LGBT rights. Surely they took heart from his shout-out, via Twitter, to March for Life activists earlier in the day.
The display was clearly influenced by the protests of the Occupy movement, yet interpreted, without irony, in a framework of uniformity and precision.
Three vans from Save the Storks were parked across the street.
Groups carrying wide banners represented Catholic dioceses and archdioceses from across the nation: St. Augustine, Chicago, Kansas City, Omaha, Newark, and more. Along the route, the red standards of TFP flailed in the stiff winds.
One man carried a large photograph of Duck Dynasty patriarch Phil Robertson, inscribed with this quote from the right’s favorite victim: “You have a God-given right to live! And, of all places, inside your mother. What in the world happened to us?”
As marchers assembled in front of a large stage erected on the Mall, a military-style chant was roared by a group of young men. I didn’t catch the first part, but the second half went: “Nothing finer in the land than an Irish Catholic pro-life man.”
The crowd of thousands stood patiently, listening to speakers for an hour in temperatures that barely broke into the double-digits. March for Life President Jeanne Monahan read the pope’s tweeted message to the crowd. House Majority Leader Eric Cantor (R-VA) promised a vote on the House floor next week for HR 7, a sweeping anti-choice bill. Rep. Chris Smith (R-NJ) stepped up to accuse President Obama of promoting “abortion violence.”
The theme of this year’s march was adoption, said Monahan, and Rep. Vicky Hartzler (R-MO) was on-message, saying that since there weren’t enough babies available for adoption, every unexpected pregnancy should be brought to term. (See Rewire’s report on the rally, here.)
By the time a youth activist who organized her high school homecoming event around the issue of “adoption, not abortion” came to the podium, I calculated that my toes had been numb for at least 20 minutes, so I briefly sought warmth in a nearby McDonalds, then headed for the subway, figuring to meet the marchers at their final destination, the Supreme Court.
By the time I hiked from Union Station to the Court building, they had already arrived. The street in front of the Court was filled with banner-bearing and sign-carrying marchers, the sidewalk clogged with anti-choicers holding ad hoc prayer vigils. In front of the Court, marchers held a large banner that read “We Are Abortion Abolitionists.”
A young woman and a young man, who looked to be of high school age, built a small snowman, and affixed a “Pro-Life Generation” sign to it. Another young woman had a friend snap her photo with an iPhone as she jumped up, both heels to one side, holding the same sign.
A group of six or so young men in blue plastic ponchos parted the crowd as they walked toward the steps of the Court bearing a statue of Our Lady of Fatima on a platform that rested on their shoulders, quickly drawing a gathering around them of people praying the Apostles’ Creed. The appearance of the Blessed Mother to three schoolchildren in Fatima, Portugal, in 1917, is a favorite of anti-communists, as the children said she called for the consecration of Russia.
The windchill was said to be -2 degrees Fahrenheit. Three hours after the kick-off rally began, the anti-choice activists were still out in force.