Commentary Contraception

The Birth Control Benefit and The Bad Faith Religious Liberty Gambit

Amanda Marcotte

As the example of Wheaton College shows, the sudden interest many employers and schools are taking in not offering contraception coverage is all about political opportunism, not deeply-held religious beliefs.

Make no mistake: All the squalling about how “religious liberty” means employers and schools should be able to withhold earned and/or paid for benefits from women is about the right wing making its move on contraception. The anti-choice movement has internally opposed contraception for a long time now, but hasn’t really had an opportunity to make a big public move towards restricting access. That’s because the right rarely argues for their positions straightforwardly, but instead tries to find an angle: abortion becomes about “life,” racism becomes “states rights,” homophobia becomes “traditional marriage.” Now, the hope is that opposing contraception can be “religious liberty.” But it’s utterly transparent.

That became doubly obvious when Wheaton College, a Christian university, decided to grandstand about how much they opposed contraception insurance coverage, only to find that they won’t be getting the religious institution extension on non-coverage because their insurance plan was already covering contraception. Apparently, their deep moral convictions against providing this benefit only kicked in when the opportunity to politically grandstand about the evils of contraception came up. Which in turn suggests that this has nothing to do with religion, but that’s just the cover story for what is really a cynical exploitation triggered by the phrase “free contraception,” which the right knows is the sort of thing that whips up their base into a frenzy of imagining hot young sluts sleeping around (with everyone but the conservative men engaging these fantasies) on the public dime. But since they can’t win that argument on the merits, “religious liberty” was ushered in to confuse the issue.

Of course, as Jodi Jacobson pointed out last week, “free” contraception isn’t free; women are paying for their insurance by earning it through labor, paying for it with premiums, or a combination of both. The entire reason for the HHS regulation requiring insurance companies to cover it without a copay is that it’s part of a larger set of regulations geared towards getting Americans to utilize more preventive care, which controls costs by preventing more expensive conditions down the road, and, more importantly, saves people unnecessary suffering. The regulation will help control costs in a couple of other valuable ways. First, insurance companies have the right to set parameters on what brands they’ll cover under this regulation, which will encourage more use of generics and lower-cost brands, which in turn will lower the upfront cost of preventing the high costs of unintended pregnancy. There’s also an expectation that this will encourage more women to turn to long-term solutions like IUDs, which are incredibly inexpensive in the long run, but prior to the HHS regulations had prohibitively expensive upfront costs for many women.

All of which means that while feminists are supportive of these regulations both because we believe controlling fertility is a right and because we’re supportive generally of women’s health care, the regulations themselves aren’t rooted in feminist ideology. These regulations are simply in service of what should be non-controversial goals of improving public health and lowering health care costs. The people demanding “religious” exemptions are really demanding the right to be free riders that get all the lowered costs of better overall preventive medicine while still retaining the sadistic satisfaction of judging their employees’ sexual choices from afar.

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Of course, that’s in the short term. This is ultimately about the right seizing an opportunity to reintroduce the notion in the public discourse that contraception, especially female-controlled contraception, is “controversial.” The way that they’re clearly going to go about this is create this nonsense narrative about Christians vs. dirty girls, even though 99 percent of sexually active women–including Christians–have used contraception. The very people nodding along to a priest’s anti-contraception rant on Sunday morning are going home and having contraception-aided sex on Sunday night.

Once that narrative is established, all sorts of mischief could happen. Anti-choicers chip away at abortion access by coming up with all sorts of regulations the public at large mistakenly believes are a good compromise position that gives the right and left something they want. (Of course, all these restrictions do is put pointless obstacles between women and abortions they already know they want.) If contraception is perceived as similarly controversial, that old and irritating urge to let “both sides” have something will kick in, and a lot of restrictions on contraception that would have been hard to sell before will be easier now. We’ve already started to see this happen, with Plan B emergency contraception, which has become pointlessly controversial because of right wing preening, and therefore can’t be sold to someone who can’t produce an ID showing they’re 17 or older. Should this gambit to make it seem like there’s some kind of deep conflict between insurance coverage of contraception and religion work, these kinds of “compromises” that make it harder for women, especially the most vulnerable women, to get contraception will likely become more common.

But while all this can be very terrifying to contemplate, this is also a political opportunity for pro-choicers. After all, the biggest uphill battle we’ve faced for years is getting the voting public to see that right-wing opposition to abortion isn’t, as they claim, about “life,” but about punishing and controlling female sexuality. Now anti-choicers are running around comparing contraception to 9/11 and Pearl Harbor. Their hope is that by flinging the phrase “religious liberty” around enough, they can deflect attention from the fact that this is a massive push to put contraception into the “controversial” territory where it can be more easily restricted. What we can do, however, is continue drawing attention to the fact that they consistent thread between opposition to contraception and abortion isn’t “life,” but fear and loathing of female sexuality. And that is not a winning position for the right. 

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.


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