Commentary Contraception

The Sliding Scale of Sin: Tyndale Publishers and Contraception Without a Co-Pay

Imani Gandy

A perhaps unintended consequence of Administration compromises on the birth control benefit is to concede that insurance coverage of contraception can be "participation in sin." Women's rights activists and attorneys must adjust and re-frame the argument to address this new development in birth control benefit litigation.

Recently, the district court for District of Columbia granted a request by Tyndale House Publishers to block the Affordable Care Act birth control benefit ensuring that employer-sponsored health insurance include coverage of contraception without a co-pay. (Jessica Mason Pieklo wrote about the ruling here.)

Like so many other organizations, both religious and secular, for-profit and non-profit, Tyndale’s complaints are the same: the birth control benefit in the ACA infringes upon their right to religious freedom:

Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization. But Defendants’ recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization. The government’s mandate exempts what it calls “religious employers,” but denies that status to Tyndale House Publishers through its arbitrary definition.

What sets Tyndale apart from other companies challenging the birth control benefit, some of which have been successful in their challenges, and some of which have not, is that Tyndale is self-insured, whereas companies like Hobby Lobby purchase group health insurance plans from a commercial insurance carrier. In other words, Tyndale wholly assumes and underwrites the risk for providing health care to its employees (and pays for it out of its own coffers), while Hobby Lobby pays premiums to an outside insurance company. That it is self-insured means that Tyndale is paying directly for the insurance coverage of the contraception that it views as sinful, and the court found that this distinguishable fact rendered the birth control benefit sufficiently violative of Tyndale’s right to religious freedom.  

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Now, the court did not reach this decision in a vacuum, mind you. The Obama Administration’s compromise with the United States Conference of Catholic Bishops (USCCB) paved the way. 

If you recall, the contraception kerfuffle began in February 2012 over one question: should employers be required to offer health insurance plans that cover contraception? In an effort to compromise with the USCCB and other religious organizations that balked at the notion of providing “slut-pills” to women, the Obama Administration allowed religiously-affiliated employers to avoid providing contraception coverage, and instead required health insurance companies to offer it directly. The Obama Administration allowed certain religious employers to keep their fingers entirely out of the contraception pie, and put the onus on insurance companies to fill the contraceptive gap. And in so doing, the Administration ceded that paying for contraception is, in and of itself, participation in sin, thus paving the way for self-insured organizations to raise Establishment Clause and Religious Freedom Restoration Act (RFRA) claims that will be (and are being) analyzed differently than the claims raised by organizations that are commercially insured.

Notwithstanding the distinction between self-insurance and regular commercial insurance, the claims challenging the birth control benefit are specious—both constitutionally and as a matter of church doctrine. Still, women’s rights activists and attorneys must adjust and re-frame the argument to take into account this new development in the birth control benefit lawsuits.  

Rather than focusing on who is paying money for what healthcare services, a better way to look at it—and, indeed, the most sensible way to look at it—is that companies providing a full range of health-care services, including contraception, are offering their employees a choice to participate in sin or not, just as employees who pay wages to their employees are offering employees that same choice.

Imagine if Tyndale filed a lawsuit challenging federal minimum wage laws. Would it make sense to allow Tyndale to argue that it should be exempt from paying its employees a fair wage out of fear that its employees would use that money to purchase contraception? Of course not. The religious nexus between paying employee wages and subsequent employee commission of sin is too great.

It might surprise you that Catholic scholars agree — at least one does. As Dr. Jeff Mirus of CatholicCulture.org notes, sometimes the remote participation in immorality is unavoidable:

In the absence of a contrary declaration by the Magisterium of the Church (to which I would submit immediately), it seems clear to me that the purchase of health insurance which includes some elements of immoral coverage is a matter of remote material cooperation with evil in a situation where it is all but impossible to avoid that remote cooperation. Just as we may morally pay taxes even though some tax money is used immorally and we may morally patronize various business which use a portion of their earnings immorally (and in fact this is inescapable in the modern world), so too I believe that if there is no reasonable way to avoid health insurance with some elements of immoral coverage, then it is not immoral to purchase such coverage.

If purchasing a group health insurance plan that includes contraception constitutes “participation” or “cooperation in evil,” then that participation is remote at best. For example, adhering to a hypothetical regulation requiring religiously-affiliated employers to shove contraception down the throats of female employees would certainly be a direct participation in evil. Requiring religiously-affiliated employers to purchase insurance that includes contraception coverage, on the other hand, is a remote participation in evil. And the Obama administration’s compromise—relieving religiously-affiliated organizations of the obligation to pay for contraception directly, and instead, shifting that burden onto insurance companies—falls somewhere between a remote participation in evil and a direct participation in evil.

It’s a sliding scale of sin.

The question becomes, at what point along the scale between remote participation in evil and direct participation in evil does the balance tip in favor of women and against religious organizations that believe it is their religious duty to ensure that women are stripped of the freedom to choose whether or not they want to use contraception and brand themselves as sinners?

At a certain point, the Catholic Church and other religious organizations must let their flock make their own choices. At a certain point, participation or cooperation in evil becomes far too remote to constitute an infringement on religious liberty. And ultimately, the pseudo-religious complaints about providing contraception, or paying for contraception must give way to common sense, fairness, and justice, whether or not employers pay directly for contraception, or do so through insurance carriers.

Certainly, the distinction between full insurance and self-insurance is an important one, and the religious outcry over the birth control benefit made it necessary for the Obama Administration to compromise, perhaps without giving much thought to how such a compromise would play out in the courts.  But the result of that compromise has paved the way for courts to hang their constitutional hat on the difference between self-insurance and “regular” insurance when it is a distinction without a difference.  

Tyndale claims that paying directly for contraception is a grievous violation of its religious freedom, and as a matter of law, courts are not permitted to nitpick those claims. Tyndale says it’s a sin? Fine. It’s a sin. But realistically, Tyndale could just as easily argue that paying workers a fair wage—or indeed any wage—is a religious violation, and I’m fairly certain that we can all agree that would be an absurd argument.

So what’s the point?

The point is this: We must begin discussion contraception access in terms of fairness. We must view access to contraception for women as being as important as the right to minimum wage.

The argument over contraception is not a religious one. It’s an argument about equality, health care, prevention, and basic human rights. We musn’t lose sight of that.

Analysis Politics

New Hampshire Sen. Kelly Ayotte’s Record on Women’s Health at Center of Heated Race

Ally Boguhn

Sen. Kelly Ayotte's defenders have made claims about her commitment to "strengthening women's health" through action on various measures; reproductive rights advocates point out, however, that most of these measures would have done more harm than good.

The tight race between incumbent Sen. Kelly Ayotte (R-NH) and challenger Gov. Maggie Hassan (D) could help determine which party takes control of the U.S. Senate after the November elections. In recent months, a key point of contention has emerged among Ayotte’s supporters and critics: the senator’s record on reproductive rights and women’s health.

Planned Parenthood Votes released an ad in April claiming Ayotte is “bad for New Hampshire women,” signaling the continuation of the heated narrative in the lead-up to the election. Ayotte’s defenders have responded to the accusations with claims of her commitment to “strengthening women’s health” through action on various measures; reproductive rights advocates point out, however, that most of these measures would have done more harm than good.

“For months, Senator Kelly Ayotte has followed party bosses, refusing to fill the Supreme Court vacancy. And for years, Ayotte has waited for an opportunity to push for someone to end access to safe, legal abortion and overturn Roe v. Wade,” claims the Planned Parenthood Votes ad, before playing an August 2010 clip of Ayotte advocating for the Supreme Court to overturn Roe. “For New Hampshire women, the consequences of letting Kelly Ayotte play politics with the Constitution could last a lifetime.”

The $400,000 ad buy, slated to run on broadcast and cable in New Hampshire, has been Planned Parenthood Votes’ first on-air ad targeting a Senate race in the 2016 election cycle. The organization, a national independent expenditure political committee, is criticizing Ayotte for claiming to protect women but failing to protect reproductive rights, also drawing on her pledge to obstruct filling the vacant Supreme Court seat in the aftermath of Justice Antonin Scalia’s death.

“Kelly Ayotte may try to paint herself as pro-woman, but her record tells a very different story. Every chance she’s gotten she’s voted to ‘defund’ Planned Parenthood and cut women off from essential health care like birth control and breast and cervical cancer screenings,” said Deirdre Schifeling, executive director of Planned Parenthood Votes, in a statement on the organization’s new ad. “She has been advocating for years to ban women’s access to safe, legal abortion, and it’s clear she now sees her chance in the Supreme Court process. Kelly Ayotte is refusing to do her job, and abdicating her constitutional duty, in order to push an extreme agenda that no one in New Hampshire wants.”

Ayotte’s campaign manager, Jon Kohan, meanwhile, defended the senator’s record on women’s health and rights in a press release. He wrote, “Kelly’s long record of standing up for New Hampshire women and families is clear, and she cares deeply about ensuring all women have access to health services.” The release included a bulleted list providing examples of Ayotte’s work “strengthening women’s health care,” “supporting working women,” and “protecting domestic or sexual assault victims.”

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The claims may be familiar to those following the New Hampshire race. After Hassan announced her candidacy in October, for example, One Nation, an issue-advocacy organization that does not need to disclose where their funding comes from and is affiliated with Karl Rove’s American Crossroads super PAC, pushed a 17-day, $1.4 million ad campaign touting Ayotte’s record on women’s health.

Hassan, on the other hand, has the support of organizations such as EMILY’s List, whose stated mission is to help elect pro-choice women into office. After endorsing the governor in the Senate race, the group added Ayotte to its “On Notice” list for “voting for anti-woman legislation and standing in the way of policies that give working families a fair shot.”

But with both sides of the race simultaneously claiming opposing positions on whether Ayotte has been good for women and reproductive rights, what is the truth?

Ayotte has made no secret of her desire to defund Planned Parenthood, and she “has shown support for defunding the organization or opposition to continued funding in at least six votes,” according to PolitiFact, though some of those votes were procedural. Though she famously chided Sen. Ted Cruz (R-TX) for attempting to shut down the government over his crusade to strip the reproductive health provider of money in the wake of anti-choice front group Center for Medical Progress’ deceptively edited videos, it was because she didn’t view his methods as a winning strategy for accomplishing that goal—not because she didn’t believe in the cause.

In a letter to Cruz, Ayotte told the Republican presidential candidate that she too is “deeply disturbed by” CMP’s videos and doesn’t believe Planned Parenthood should have federal funding.”This callous disregard for the dignity of human life is heinous, and I do not believe taxpayer dollars should be used to fund a private organization that performs hundreds of thousands of abortions each year and harvests the body parts of unborn children,” wrote Ayotte. She went on to ask what Cruz’s “strategy to succeed in actually defunding Planned Parenthood” really was, given that their mutual efforts to redirect the organization’s funding to other clinics had failed.

Planned Parenthood does not use its federal funding to provide abortions; its fetal tissue donation program has been cleared of wrongdoing in multiple state and federal investigations. And despite claims from conservatives, including Ayotte, that other facilities could provide Planned Parenthood’s patients with health care should the organization lose funding, the Guttmacher Institute found that “credible evidence suggests this is unlikely. In some areas, Planned Parenthood is the sole safety-net provider of contraceptive care.”

“Our analysis shows unequivocally that Planned Parenthood plays a major role in delivering publicly supported contraceptive services and supplies to women who are in need of such care nationwide,” the Guttmacher Institute concluded.

Ayotte has also supported numerous other anti-choice restrictions and legislation, including a 2015 20-week abortion ban based on the medically unfounded claim that fetuses feel pain at this point in pregnancy.

According to NPR, Ayotte has “been a hero to anti-abortion activists since 2005, when as New Hampshire attorney general she defended a parental notification law all the way to the U.S. Supreme Court.” The law required doctors to notify parents of minors seeking an abortion at least 48 hours prior to the procedure, and contained no exceptions for the health of the patient. The Court ultimately ruled against Ayotte, affirming that states may not enact abortion laws that don’t protect women’s health and safety.

National Right to Life found that the New Hampshire senator voted “with” the anti-choice organization in all 14 of the scored votes from 2012 to 2015 it examined.

In 2012, Ayotte co-sponsored the failed “Blunt Amendment,” which would have allowed exemptions from the Affordable Care Act’s birth control benefit for any employers or insurers that had moral objections to providing contraceptive coverage to their employees. And in a 2014 commentary for the Wall Street Journal, Ayotte and Sen. Deb Fischer (R-NE) defended the Supreme Court’s ruling in Burwell v. Hobby Lobby, which grants some employers the right to deny contraceptive coverage to their staff based on the owner’s religious beliefs, falsely claiming that the ruling did “not take away women’s access to birth control.”

Ayotte’s campaign is quick to point to legislation sponsored by the senator that would have allowed over-the-counter contraception as proof that she cares about women’s health. Reproductive health advocates, however, called Ayotte’s Allowing Greater Access to Safe and Effective Contraception Act a “sham” when it was introduced in 2015. Though the American Congress of Obstetricians and Gynecologists (ACOG) generally supports over-the-counter birth control, the organization’s president Dr. Mark S. DeFrancesco, said in a statement that Ayotte’s measure “would actually make more women have to pay for their birth control, and for some women, the cost would be prohibitive.”

Paid leave is yet another issue in which Ayotte has put forth legislation in the name of helping women. Ayotte introduced the Family Friendly and Workplace Flexibility Act of 2015 in March of that year, claiming it would “allow greater flexibility for workers who are looking to better balance their work-life demands.” Analysis by ThinkProgress, however, found that the measure “could weaken already weak rules that require workers to be paid extra for working extra hours, thus ensuring that workweeks don’t grow out of control and employees are compensated fairly.”

Earlier in 2015, Ayotte signed on as a co-sponsor of the Working Families Flexibility Act. According to a statement from the National Partnership for Women and Families (NPWF) condemning the legislation, the act claimed to “give hourly workers more flexibility and time with their loved ones by allowing them to choose paid time off, rather than time-and-a-half wages, as compensation for working more than 40 hours in one week.” However, the bill did “not promote family friendly or flexible workplaces,” explained the nonprofit organization in a fact sheet. “Instead, it would erode hourly workers’ ability to make ends meet, plan for family time, and have predictability, stability, and true flexibility at work.”

Ayotte’s record on equal pay has been similarly debunked by advocates. One of the policies highlighted by Ayotte’s campaign in the wake of Planned Parenthood Votes’ ad was the senator’s introduction of the Gender Advancement In Pay (GAP) Act in September 2015, which she reintroduced ahead of Equal Pay Day this April. The measure was meant to make clear that “employers must pay men and women equal wages for equal work, without reducing the opportunity for employers to reward merit,” according to a press release from Ayotte’s office upon the initial release of the bill.

Critics argued that Ayotte’s bill was nothing other than an election-year stunt. New Hampshire state Sen. Donna Soucy (D-Manchester) told NH1 News that Ayotte’s move was an attempt to look “for some cover … in an effort to be more in line with” New Hampshire voters, after Ayotte voted against other fair pay measures. However, Soucy said, the legislation didn’t really address the issue of pay equity. “Sen. Ayotte’s bill attempts to create paycheck fairness but doesn’t in fact do so because employers could preclude their employees from discussing what they make with their fellow employees,” claimed Soucy.

Similar arguments were made when Ayotte co-sponsored another equal pay measure, the Workplace Advancement Act, with Sens. Deb Fischer (R-NE), Susan Collins (R-ME), Joni Ernst (R-IA), Thad Cochran (R-MS), and Shelley Moore Capito (R-WV) in April 2015. Though the legislation would ban employers from retaliating against their staff, it failed to garner support from Democrats. According to the National Women’s Law Center, the bill would have done “more harm than good” as it “entirely [ignored] the many loopholes and inadequacies in current equal pay laws and simply [stated] that pay discrimination ‘violates existing law.'”

Their arguments are bolstered by Ayotte’s repeated votes against the federal Paycheck Fairness Act, though as Politifact again pointed out, some of these votes were procedural and not against the bill itself. Ayotte did cast one vote in favor of ending debate on the measure and advancing it; the fact-checking site noted, though, that Ayotte’s office reportedly did so in the ultimately denied hopes of changing the bill.

Had it passed, the legislation would have updated the Equal Pay Act of 1963 to include protections such as prohibiting retaliation against employees who share their salary and strengthening penalties for those who violate the law. Ayotte claims she voted against the measure because it “could reduce the ability of employers to award merit pay for good performance and limit the opportunity for women to have flexible work schedules,” according to a press release on the matter.

Speaking at a town hall event in 2013, Ayotte had previously justified her vote against equal pay legislation by asserting that it “created a lot of additional burdens that would … make it more difficult for job creators to create jobs.” The New Hampshire senator went on to add that there were already laws in place that could help address the issue.

There are, however, some examples of Ayotte supporting and introducing legislation that would help women. In June 2015, Ayotte co-sponsored the Pregnant Workers Fairness Act to protect pregnant people from workplace discrimination. Though the legislation never came to a vote, it would have helped “end … discrimination and promote healthy pregnancies and the economic security of pregnant women and their families,” according to the NPWF. That same year, the New Hampshire senator co-sponsored the Protect Access to Lifesaving Screenings (PALS) Act, bipartisan legislation that would have safeguarded access to free annual mammograms for women ages 40 to 74. Ayotte co-sponsored the bipartisan Campus Accountability and Safety Act in 2014 and 2015, which, according to Democratic New York Sen. Kirsten Gillibrand’s website, would “protect students and boost accountability and transparency at colleges and universities” when it comes to sexual assault. Ayotte also co-sponsored the Combating Military Sexual Assault Act of 2013 to address the issue in the military.

Overall, Ayotte has signed onto or supported numerous pieces of legislation that at face value seem to promote reproductive health and women’s rights. Further examination shows, however, that—with a few exceptions—they largely failed to hold up to scrutiny. While Ayotte’s campaign alleges that many of her measures would have helped women and families, analysis suggests that her conservative solutions to addressing these issues often would have made the problems worse. This, coupled with the senator’s fierce anti-choice advocacy, will no doubt keep this portion of Ayotte’s record under tight observation as November’s election approaches.

Analysis Law and Policy

Religious Nonprofits Press Supreme Court for Full Exemption From Birth Control Benefit

Jessica Mason Pieklo

The Supreme Court ordered the Obama administration and religiously affiliated nonprofits to work out a solution to the challenges to the Affordable Care Act's birth control benefit. Not surprisingly, the religiously affiliated nonprofits refuse to do so.

In late March, the U.S. Supreme Court heard oral arguments in Zubik v. Burwell, the lead case challenging the Obama administration’s process for accommodating religious objections to the Affordable Care Act’s birth control benefit. It was apparent then that the remaining eight justices were deadlocked as to whether the process did enough to protect the religious objections of the nursing home operators and university administrators who had launched this latest round of lawsuits.

Hoping to avoid a split decision—which would subject some religiously affiliated nonprofits to penalties if they failed to follow the accommodation process and not others, depending on their appellate court circuit —the justices ordered the government and the religious objectors to try and find a solution both sides could work with and present it to the court via briefing in April. Well, the nonprofits and the Obama administration have filed that first round of briefing. And if the Roberts Court thought the religious objectors were interested in any sort of real solution to the problems posed in their lawsuits, it was mistaken. The negotiating position for the religiously affiliated challengers remains: full exemption from the requirement or bust.

In its order asking for supplemental briefing, the Roberts Court asked parties on both sides to address whether “contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.” According to the nonprofits, “[t]he answer to that question is clear and simple: Yes.”

If only it were that clear and that simple.

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In the remaining 20-plus pages of the nonprofits’ brief, their lawyers set out a variety of options that could, they say, provide seamless contraception coverage while preventing the nonprofits from in any way “facilitating” the sin of providing health insurance plans that include contraception. But the thing is, none of those options are actually accommodations to the ACA’s requirement that employer-provided health insurance plans cover contraception at no additional cost or co-pay.

One of the religious objectors’ solutions, for example, is to have the government directly require insurance companies to create entirely new and separate contraception-only plans. The companies would then contact plan beneficiaries directly with information about the policy and how to enroll. These separate plans, objectors offer, could take the form of individual insurance policies or of group health plans sponsored by the government.

In other words, one option is for the government to come up with an entirely different regulatory scheme for dealing with contraception altogether. That scheme would apply to religiously affiliated nonprofits and presumably the secular for-profit companies like Hobby Lobby that petitioned the Roberts Court for the very same accommodation now regarded by objectors as too onerous for compliance.

The fact this is one option offered up by the religiously affiliated nonprofits should come as no surprise. It’s right out of the anti-choice playbook with regard to insurance coverage for abortion. As states set up their own insurance exchanges during the implementation of the ACA, anti-choice politicians were quick to put restrictions on the kinds of coverage for abortion that insurance companies could offer in individual or employer-sponsored plans. So far, 10 states ban abortion coverage generally, while 25 ban abortion coverage in their exchanges. In other words, if you happen to live in Idaho, Indiana, Kansas, Kentucky, Michigan, Missouri, Nebraska, North Dakota, Oklahoma, or Utah, you cannot purchase a health insurance plan that covers abortion. At all. Including through your employer. Meanwhile, states like Arizona, Florida, North Carolina, Virginia, and Wisconsin—just to name a few—prevent comprehensive health insurance plans that cover abortion from being sold on their state exchanges.

Do we really think that if this “contraception insurance” plan offered by the religiously affiliated institutions were to become the “solution” to these legal challenges, the result would look any different than it has for insurance coverage for abortion? Hypothetically, broad contraceptive coverage could end across the country, with many states banning the coverage altogether. This, of course, is the exact scenario the Supreme Court is hoping to avoid.

All of the objectors’ “solutions” are, in fact, just other ways of granting exemptions from the birth control benefit. In other words, they seem to be saying, if and when religiously affiliated hospitals, nursing homes, and day care centers can be treated under the law the same way as churches, synagogues, and mosques, then the lawsuits will stop.

That doesn’t sound so much like a compromise as it does a threat.

The Obama administration has until April 20 to respond directly to the petitioners’ arguments. It has already filed its own briefing arguing the process as it stands completely accommodates any religious objections in a way that balances the government’s compelling interest in promoting nondiscriminatory health insurance coverage for employees while respecting the beliefs of those who see contraception as sin.

But perhaps most importantly, the government’s brief argues that any additional tinkering with the accommodation process, rather than a ruling on the merits by the Roberts Court that the current process is sufficient, will only result in many more years of litigation. And it’s a point the petitioners pretty much concede by failing to offer up any workable compromise at all.