Commentary Contraception

Four Ways to Show How the “Religious Liberty” Claim Against Contraceptive Coverage Is Nonsense

Amanda Marcotte

Conservatives are now claiming religious liberty gives them the right to dock their employee's compensation package for having differing beliefs about contraception. Four reasons why that argument won't fly.

Nancy Scola has a piece at Salon on the Republican delusion that the newly loud anti-choice war on contraception can somehow be repackaged as “religious liberty” and sold to the public, accomplishing the real goal–undermining women’s fundamental right not to just basic health care but also to make their own sexual and family decisions–and dressing it up as a fight for freedom. The strategy is to cast “religious liberty” as such a broad right, held only by fundamentalist Christians, that it actually extends far past their noses and right into your face and beyond, into your uterus. In this view, women securing equal rights to fair compensation from employers and to comprehensive basic health care coverage is framed as a violation of the right of religious misogynists to control and punish them. It’s a bold tactic, and while many liberals, who are used to rolling over for the right and letting them have whatever they want, fear it’s going to work, there’s reason to be skeptical.

Well, some reason to be skeptical. It is true that if we roll over and let the right define religious liberty as the right to interfere with other people’s personal and religious choices, then we will lose. But if we fight, we can win. We just need to be clear on the arguments here. So I put together a quick rundown of how to argue for women’s basic right to equal protection under the Constitution in light of these new HHS regulations.

1) Women’s right to be sexual beings is protected under the First Amendment’s religious liberty clause. Yes, Catholic bishops and their teeny group of avid followers have a right to believe that God wants women to either be virgins or non-stop baby factories. But women have a right to believe that God has a different plan for them—or to not believe in a God at all. Women have equal rights to their own religious beliefs around sex and reproduction. The Catholic bishops demanding the right to force women not to be able to go directly through insurers for contraception coverage—in essence, giving them extra-governmental power to levy a fine against women for being sexual—is a direct violation of a woman’s religious freedom. These employers cannot require women to attend Catholic mass as a condition of their employment, so why should they be able to require women to pay what amounts to a penance for what the church teaches is a sin as a condition of their employment? Religious liberty exists for all Americans, even women.

2) Religious liberty certainly doesn’t give you a right to tear down entire social systems because someone in them might differ from you on a matter of theology. Since Obama exempted Catholic hospitals and universities from covering contraception directly, the argument conservatives are making to attack women’s access to contraception is that if you pay into a system, you have the right to ban coverage for disliked services for every other person in that system. While they’re pretending to limit this principle to the employees of misogynist employers, if you think about it, believing this means that any single individual who gives an insurance company any money has the right to veto any procedure for any reason, as long as they dress it up as “moral.” Which means that if a Catholic hospital buys insurance from a company, if, say, Planned Parenthood does too, under this principle, the Catholic hospital should be able to deny Planned Parenthood the right to coverage contraception for their employees. Or, heart disease treatments, for that matter, if they dress it up in enough religious garb.

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And that would extend beyond just employers. Employees pay into the system, too, so presumably if a single dollar from your wallet goes to an insurance company and gives you ultimate veto power over how all the money is spent, then any random person anywhere in the system has this power. In essence, this principle would mean that insurance companies couldn’t function at all.

3) Insurance isn’t a gift your employers give you; it’s a part of your compensation package. If your employer has the right to force you not to use your compensation package in this way on general (and suddenly invented) principles, then why not in other ways? Once the principle that your compensation is your employer’s “money” and that they get to control it is established, then why can’t they step in and stop you from spending your salary on contraception? After all, if health insurance money is still theirs after they write the check, then your salary is, too.

4) Conservatives’ claim to support the right of the religious to intrude on others is an inch deep. While conservatives are claiming that the First Amendment is so broad that it gives your employer a right to discriminate against you for having different religious beliefs regarding sexuality, they don’t generally believe that religious liberty trumps generally applicable laws. For instance, last year a Muslim man in Pennsylvania was accused of assaulting another man who was dressed as zombie Mohammed. The judge dismissed the case, citing a lack of evidence, and the right wing media went wild, accusing the judge of “sharia law” for supposedly letting off the defendant because he took offense at a slight at his religion.

Regardless of the facts of the case, let’s look at the right wing argument. They claim, correctly, that having religious faith should not be grounds for having an exception to a generally applicable law against assault. Because you’re religious, they argue, doesn’t mean you have a right to force your faith on someone who doesn’t share it, especially in direct violation of the law.

By their own reasoning, therefore, employers should not be allowed under the guise of “religious liberty” to opt out of federal regulations requiring employers to compensate their employees fairly for their work. Nor should “religious liberty” give anyone a right to try to force their beliefs on others by withholding medical care. As it stands, conservatives are trying to argue that employers should be able to force women to pay twice for their birth control—once when they paid for it through labor/money when they got their insurance and again when they pick it up—to appease someone else’s religious sensibilities. If their right to religious belief continues well past where their nose ends and where yours begins, then by the same logic, laws against assault should also have religious exemptions, even for Muslims.

They’re obviously not going to sign on to that claim, demonstrating that this isn’t and never was about “religious liberty,” but about finding inventive ways to get between women and their access to contraception.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

Analysis Politics

Paul Ryan Uses Falsehoods Behind Texas HB 2 to Push Yet Another Abortion Restriction

Ally Boguhn

In a CNN town hall Tuesday night, Paul Ryan agreed with an audience member's baseless sentiment that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics" in its Whole Woman's Health v. Hellerstedt ruling.

During a CNN town hall on Tuesday night, House Speaker Paul Ryan (R-WI) pushed falsehoods about the anti-abortion provisions at the center of the recent U.S. Supreme Court decision in Whole Woman’s Health v. Hellerstedt being necessary for patient health and safety. Ryan nonsensically then used the decision as a launch point to promote House Republicans’ Conscience Protection Act, which passed in the House Wednesday evening and supposedly shields those who object to abortion from discrimination. The only things Texas’ provisions and the legislation have in common, however, is that they’re all about blocking access to abortion care.

Town hall audience member and executive director of New Jersey Right to Life Marie Tasy claimed during the event Tuesday that the Supreme Court had struck down “commonsense health and safety standards at abortion clinics,” in its landmark ruling against two provisions—the admitting privileges and surgical center requirements—of Texas’ HB 2.

“Absolutely,” Ryan said in response to Tasy’s remarks. “I agree with that.”

But the provisions of the law in question were not about keeping anybody safe. As Justice Stephen Breyer noted in the opinion declaring them unconstitutional, “When directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

All the provisions actually did, according to Breyer on behalf of the Court majority, was put “a substantial obstacle in the path of women seeking a previability abortion,” and “constitute an undue burden on abortion access.”

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Despite this, Ryan then used the falsehood at the center of HB 2 as a call to action for yet another anti-choice restriction: the Conscience Protection Act. After fielding the question from Tasy about how anti-choice issues could be advanced in Congress in the wake of the Court’s decision, Ryan pivoted to claim that the government is “forcing people to conduct [abortion] procedures”:

Actually, tomorrow we are bringing a bill that I’ve been working on called the Conscience Protection Act. I’m pro-life. I think you probably know that. And I would like to think we could at least get consensus in this country that taxpayers shouldn’t be funding abortions. That the government shouldn’t be forcing people to conduct procedures, especially health-care workers, against their own conscience.

Our First Amendment is the right of conscience, religious freedom. Yet our own government today, particularly in California, is violating that right and not allowing people to protect their conscience rights, whether they’re Catholic hospitals or doctors or nurses. Tomorrow we’re bringing the Conscience Protection Act to the floor and passing it. It’s Diane Black’s bill. And it is to give those citizens in America who want to protect their conscience rights their ability to defend those rights. That is one thing we’re doing tomorrow to protect the conscience, because I believe we need to cultivate a culture of life. And at the very least, stop the government from violating our conscience rights.

Ryan would go on to make similar remarks the next day while speaking on behalf of the bill on the House floor, though this time he added that the “bill does not ban or restrict abortion in any way …. All it does is protect a person’s conscience.” 

As Rewire‘s Christine Grimaldi previously reported, the Conscience Protection Act would codify and expand on the Weldon Amendment. According to the Department of Health and Human Services (HHS), the amendment prohibits states that receive federal family planning funding from discriminating against any health care entity-including physicians, health-care professionals, hospitals, and insurance plans, “on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”

The Weldon Amendment currently must be passed each year as part of annual appropriations bills.

Grimaldi noted that the act “would give health-care providers a private right of action to seek civil damages in court, should they face alleged coercion or discrimination stemming from their refusal to assist in abortion care.”

Ryan proposed similar conscience protections as part of his recently released health-care plan, though, as Grimaldi wrote, “the Conscience Protection Act goes a step further, allowing providers to sue not only for threats, but also for perceived threats.”

But those whom Ryan and his colleagues are claiming to defend already have protections that impede access to abortion care, according to critics of the measure.

Ryan, for example, suggested in both his CNN appearance and his House floor speech the next day that California’s requirement that insurance plans must cover elective abortions under “basic health services” violates “religious freedom.” But a June investigation by the HHS Office for Civil Rights into whether California’s requirement violated the Weldon Amendment rejected similar complaints by anti-choice group Alliance Defending Freedom.

“Let’s be very clear—right now, current law says that hospitals, insurers, and doctors may refuse to perform an abortion or provide coverage for abortion, which already greatly limits women’s access to legal procedures,” said Rep. Jan Schakowsky (D-IL) Wednesday, speaking after Ryan on the House floor during remarks before the Conscience Protection Act passed.

“More importantly, when a woman’s health is in danger, providers would not be required to act to protect the health of that mother. This bill would allow them to refuse to … facilitate or make arrangements for abortion if they have a moral objection to it,” continued Schakowsky. “They could also refuse to provide transportation to another hospital if a woman is in distress if that hospital provides abortions.”

Debra L. Ness, president of the National Partnership for Women & Families, explained in a statement following the passage of the legislation in the House that the measure is about blocking access to abortion. “The Conscience Protection Act is dangerous, discriminatory legislation designed to block women’s access to abortion care,” said Ness.

“For example, a hospital could rely on the Conscience Protection Act to turn away a woman in an emergency situation who needs an abortion or refuse to provide a woman information about her treatment options. This legislation is a license for providers to discriminate against women and undermine their access to essential, constitutionally protected health care,” Ness said.