Analysis Law and Policy

Even the Nuns’ Birth Control Lawsuit Is About Corporate Power, Not Religious Freedom

Jessica Mason Pieklo

Despite conservatives' claims, the evidence shows the legal challenges to the contraception mandate have nothing to do with birth control at all.

Read more of our coverage on the Little Sisters of the Poor case here.

2013 came to a close with a flurry of activity, and confusion, around the birth control benefit in the Affordable Care Act, with Supreme Court Justice Sonia Sotomayor granting a last-minute request by a group of Catholic nonprofits challenging the exemption process to the health-care law. The nonprofits, led by a group of nuns who operate assisted living facilities in Colorado and Maryland, put forward the familiar refrain of an overzealous Obama administration running roughshod over religious freedom in the name of its health-care reform agenda. But unlike the group of secular, for-profit corporations that are challenging the health-care law’s basic requirement that all qualified employers insure all their employees equally, including by providing full access to preventative care like contraception, or face financial penalties, the Little Sisters and similar religious nonprofits don’t have to comply with the law’s requirement to provide birth control at no additional cost to their employees because they are exempt.

So if the Little Sisters don’t, and likely won’t ever, have to comply with the contraception mandate, then what is all the fuss about? As it turns out, paperwork.

EBSA 700 is the form used by religious nonprofits to self-certify their exempt status, and it is at the heart of the Little Sisters case. According to the nuns, completing the two-page form is tantamount to becoming an instrument of sin. The form requires a key person in the organization applying for the exemption to certify that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered, [that] the organization is organized and operates as a non-profit entity and [that] the organization holds itself out as a religious organization.” What the Little Sisters and other religiously affiliated nonprofit organizations find most objectionable about the form is that it exists at all and that, in order to take advantage of the broad religious exemption to the contraception mandate, any religiously affiliated nonprofit must execute it; this shifts the law’s requirement that employers provide access to equal insurance coverage to a health insurance company that then provides those contraceptive services in lieu of the religiously affiliated nonprofit. Thus, the nuns argue, the head of a religious organization filling out and signing that document is forced to become part of the overall “scheme” to deliver contraceptive services to their employees. The simple act of preparing and signing EBSA 700 is, they contend, a substantial burden on their exercise of faith and a violation of the Religious Freedom Restoration Act (RFRA).

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Not surprisingly, the Obama administration disputes the claim that completing EBSA 700 in order to take advantage of the religious exemption affects religious faith in any way, let alone substantially burdens a person’s faith. To begin with, the administration argues, once the form is filed by the religious organization, that ends the group’s involvement in the contraception mandate program. Once that form is filed, the organization has certified its status as exempt, and any obligation to provide contraception coverage is imposed by the ACA, not by the religious organization sponsoring the health plan. Furthermore, because these disputes center around employer-sponsored benefit plans, they fall under the umbrella of the Employee Retirement Income Security Act of 1974 (ERISA). According to the Obama administration, and further explained in this excellent piece by Sarah Posner, ERISA already bars any government regulation of an employee benefit plan run by a church. That prohibition on “church plans” is incorporated into the ACA. This means that, per the Obama administration, the plan administrator for the Little Sisters has no legal duty to provide the services at all, and there is no way to compel it to do otherwise. In other words, even if the Little Sisters loses its legal challenge to the mandate, it still won’t have to provide its employees with contraception coverage, and there’s nothing the administration can do about it.

If a “stroke of the pen” will get the Little Sisters entirely out from under the contraception mandate and all its requirements, as the Obama administration claims—and, even if it loses, the nuns won’t have to make contraception available to their employees anyway—what is going on with this case?

According to the Obama administration:

As this case comes to the Court, it is not about the availability or adequacy of a religious accommodation, but rather whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.

Put another way, this case isn’t about whether the law sufficiently protects religious organizations from being compelled to violate their faith; it’s about whether religious organizations can use federal law to shield themselves from the consequences of discriminatory behavior.

It’s clear the Little Sisters case is being used as a vehicle by conservatives to attack the “substantial burden” requirement under the RFRA, which requires that before a party is protected under the RFRA the party must show that the government action in dispute is a “substantial burden” on their religious rights. As ThinkProgress’ Ian Millhiser explains, any ruling that completing administrative paperwork to obtain a benefit constitutes a “substantial burden” would be a clear win for conservative culture warriors. With the “substantial burden” hurdle removed, complying with practically any law could be characterized as a religious objection and used by employers to avoid complying with a host of government regulations.

But what about the for-profit business and their legal challenges to the contraception mandate to be heard by the Roberts Court this spring? How do they factor into all this mess? The Little Sisters case doesn’t implicate those cases directly since in those cases secular, for-profit businesses are trying to take advantage of the exemption from the law the nuns already enjoy and expand the definition of religious exercise to include corporate, institutional religious rights. But, when these cases are taken together, it’s clear what’s at stake.

The contraception benefit in the Affordable Care Act is at its core an anti-discrimination provision, one that helps end the practice of providing unequal insurance benefits to employees on the basis of their gender. In the case of both Hobby Lobby and Little Sisters of the Poor, many of the employees at these organizations work hourly wages, and the cost of having contraceptives covered at no additional cost can mean an extra $40 to $50 a month. For Hobby Lobby and the other for-profit businesses challenging the law, the profit motive in denying contraception coverage is clear. But in the nuns’ case, it’s more muted, drowned out by hyperbolic hand-wringing by pundits over the Obama administration’s efforts to force nuns onto the pill. Add the fact that the nuns have absolutely nothing to lose in this case, and the crusade becomes even more apparent.

If conservatives get their way in these birth control benefit challenges, then secular, for-profit businesses will have the ability to avoid government regulation by asserting that compliance conflicts with corporate religious rights without having to show that regulation was a “substantial burden” on those rights. That opens the door to employers denying access to health care for other services they object to, whether it be HIV-related treatments or blood transfusions, and leaving employees with no legal avenues to challenge those denials. And with Catholic institutions taking up an ever-growing market share of health care-related businesses, and with a number of employees at those institutions being women who work hourly wages, that’s a significant and discriminatory coverage gap created within a law designed to do just the opposite. Finally, add to the contraception mandate fight conservatives insisting in a right to exclude from employment LGBTQ individuals by opposing the Employment Non-Discrimination Act, and its easy to grasp that the fight over insurance coverage for contraception was never really about birth control as much as it was about creating new legal protections to push back against the tide of progress made not just by passing the Affordable Care Act, but by the decades of civil rights advances that came before it.

Analysis Politics

The 2016 Republican Platform Is Riddled With Conservative Abortion Myths

Ally Boguhn

Anti-choice activists and leaders have embraced the Republican platform, which relies on a series of falsehoods about reproductive health care.

Republicans voted to ratify their 2016 platform this week, codifying what many deem one of the most extreme platforms ever accepted by the party.

“Platforms are traditionally written by and for the party faithful and largely ignored by everyone else,” wrote the New York Times‘ editorial board Monday. “But this year, the Republicans are putting out an agenda that demands notice.”

“It is as though, rather than trying to reconcile Mr. Trump’s heretical views with conservative orthodoxy, the writers of the platform simply opted to go with the most extreme version of every position,” it continued. “Tailored to Mr. Trump’s impulsive bluster, this document lays bare just how much the G.O.P. is driven by a regressive, extremist inner core.”

Tucked away in the 66-page document accepted by Republicans as their official guide to “the Party’s principles and policies” are countless resolutions that seem to back up the Times‘ assertion that the platform is “the most extreme” ever put forth by the party, including: rolling back marriage equalitydeclaring pornography a “public health crisis”; and codifying the Hyde Amendment to permanently block federal funding for abortion.

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Anti-choice activists and leaders have embraced the platform, which the Susan B. Anthony List deemed the “Most Pro-life Platform Ever” in a press release upon the GOP’s Monday vote at the convention. “The Republican platform has always been strong when it comes to protecting unborn children, their mothers, and the conscience rights of pro-life Americans,” said the organization’s president, Marjorie Dannenfelser, in a statement. “The platform ratified today takes that stand from good to great.”  

Operation Rescue, an organization known for its radical tactics and links to violence, similarly declared the platform a “victory,” noting its inclusion of so-called personhood language, which could ban abortion and many forms of contraception. “We are celebrating today on the streets of Cleveland. We got everything we have asked for in the party platform,” said Troy Newman, president of Operation Rescue, in a statement posted to the group’s website.

But what stands out most in the Republicans’ document is the series of falsehoods and myths relied upon to push their conservative agenda. Here are just a few of the most egregious pieces of misinformation about abortion to be found within the pages of the 2016 platform:

Myth #1: Planned Parenthood Profits From Fetal Tissue Donations

Featured in multiple sections of the Republican platform is the tired and repeatedly debunked claim that Planned Parenthood profits from fetal tissue donations. In the subsection on “protecting human life,” the platform says:

We oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts rather than provide healthcare. We urge all states and Congress to make it a crime to acquire, transfer, or sell fetal tissues from elective abortions for research, and we call on Congress to enact a ban on any sale of fetal body parts. In the meantime, we call on Congress to ban the practice of misleading women on so-called fetal harvesting consent forms, a fact revealed by a 2015 investigation. We will not fund or subsidize healthcare that includes abortion coverage.

Later in the document, under a section titled “Preserving Medicare and Medicaid,” the platform again asserts that abortion providers are selling “the body parts of aborted children”—presumably again referring to the controversy surrounding Planned Parenthood:

We respect the states’ authority and flexibility to exclude abortion providers from federal programs such as Medicaid and other healthcare and family planning programs so long as they continue to perform or refer for elective abortions or sell the body parts of aborted children.

The platform appears to reference the widely discredited videos produced by anti-choice organization Center for Medical Progress (CMP) as part of its smear campaign against Planned Parenthood. The videos were deceptively edited, as Rewire has extensively reported. CMP’s leader David Daleiden is currently under federal indictment for tampering with government documents in connection with obtaining the footage. Republicans have nonetheless steadfastly clung to the group’s claims in an effort to block access to reproductive health care.

Since CMP began releasing its videos last year, 13 state and three congressional inquiries into allegations based on the videos have turned up no evidence of wrongdoing on behalf of Planned Parenthood.

Dawn Laguens, executive vice president of Planned Parenthood Action Fund—which has endorsed Hillary Clinton—called the Republicans’ inclusion of CMP’s allegation in their platform “despicable” in a statement to the Huffington Post. “This isn’t just an attack on Planned Parenthood health centers,” said Laguens. “It’s an attack on the millions of patients who rely on Planned Parenthood each year for basic health care. It’s an attack on the brave doctors and nurses who have been facing down violent rhetoric and threats just to provide people with cancer screenings, birth control, and well-woman exams.”

Myth #2: The Supreme Court Struck Down “Commonsense” Laws About “Basic Health and Safety” in Whole Woman’s Health v. Hellerstedt

In the section focusing on the party’s opposition to abortion, the GOP’s platform also reaffirms their commitment to targeted regulation of abortion providers (TRAP) laws. According to the platform:

We salute the many states that now protect women and girls through laws requiring informed consent, parental consent, waiting periods, and clinic regulation. We condemn the Supreme Court’s activist decision in Whole Woman’s Health v. Hellerstedt striking down commonsense Texas laws providing for basic health and safety standards in abortion clinics.

The idea that TRAP laws, such as those struck down by the recent Supreme Court decision in Whole Woman’s Health, are solely for protecting women and keeping them safe is just as common among conservatives as it is false. However, as Rewire explained when Paul Ryan agreed with a nearly identical claim last week about Texas’ clinic regulations, “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.”

Myth #3: 20-Week Abortion Bans Are Justified By “Current Medical Research” Suggesting That Is When a Fetus Can Feel Pain

The platform went on to point to Republicans’ Pain-Capable Unborn Child Protection Act, a piece of anti-choice legislation already passed in several states that, if approved in Congress, would create a federal ban on abortion after 20 weeks based on junk science claiming fetuses can feel pain at that point in pregnancy:

Over a dozen states have passed Pain-Capable Unborn Child Protection Acts prohibiting abortion after twenty weeks, the point at which current medical research shows that unborn babies can feel excruciating pain during abortions, and we call on Congress to enact the federal version.

Major medical groups and experts, however, agree that a fetus has not developed to the point where it can feel pain until the third trimester. According to a 2013 letter from the American Congress of Obstetricians and Gynecologists, “A rigorous 2005 scientific review of evidence published in the Journal of the American Medical Association (JAMA) concluded that fetal perception of pain is unlikely before the third trimester,” which begins around the 28th week of pregnancy. A 2010 review of the scientific evidence on the issue conducted by the British Royal College of Obstetricians and Gynaecologists similarly found “that the fetus cannot experience pain in any sense prior” to 24 weeks’ gestation.

Doctors who testify otherwise often have a history of anti-choice activism. For example, a letter read aloud during a debate over West Virginia’s ultimately failed 20-week abortion ban was drafted by Dr. Byron Calhoun, who was caught lying about the number of abortion-related complications he saw in Charleston.

Myth #4: Abortion “Endangers the Health and Well-being of Women”

In an apparent effort to criticize the Affordable Care Act for promoting “the notion of abortion as healthcare,” the platform baselessly claimed that abortion “endangers the health and well-being” of those who receive care:

Through Obamacare, the current Administration has promoted the notion of abortion as healthcare. We, however, affirm the dignity of women by protecting the sanctity of human life. Numerous studies have shown that abortion endangers the health and well-being of women, and we stand firmly against it.

Scientific evidence overwhelmingly supports the conclusion that abortion is safe. Research shows that a first-trimester abortion carries less than 0.05 percent risk of major complications, according to the Guttmacher Institute, and “pose[s] virtually no long-term risk of problems such as infertility, ectopic pregnancy, spontaneous abortion (miscarriage) or birth defect, and little or no risk of preterm or low-birth-weight deliveries.”

There is similarly no evidence to back up the GOP’s claim that abortion endangers the well-being of women. A 2008 study from the American Psychological Association’s Task Force on Mental Health and Abortion, an expansive analysis on current research regarding the issue, found that while those who have an abortion may experience a variety of feelings, “no evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors.”

As is the case for many of the anti-abortion myths perpetuated within the platform, many of the so-called experts who claim there is a link between abortion and mental illness are discredited anti-choice activists.

Myth #5: Mifepristone, a Drug Used for Medical Abortions, Is “Dangerous”

Both anti-choice activists and conservative Republicans have been vocal opponents of the Food and Drug Administration (FDA’s) March update to the regulations for mifepristone, a drug also known as Mifeprex and RU-486 that is used in medication abortions. However, in this year’s platform, the GOP goes a step further to claim that both the drug and its general approval by the FDA are “dangerous”:

We believe the FDA’s approval of Mifeprex, a dangerous abortifacient formerly known as RU-486, threatens women’s health, as does the agency’s endorsement of over-the-counter sales of powerful contraceptives without a physician’s recommendation. We support cutting federal and state funding for entities that endanger women’s health by performing abortions in a manner inconsistent with federal or state law.

Studies, however, have overwhelmingly found mifepristone to be safe. In fact, the Association of Reproductive Health Professionals says mifepristone “is safer than acetaminophen,” aspirin, and Viagra. When the FDA conducted a 2011 post-market study of those who have used the drug since it was approved by the agency, they found that more than 1.5 million women in the U.S. had used it to end a pregnancy, only 2,200 of whom had experienced an “adverse event” after.

The platform also appears to reference the FDA’s approval of making emergency contraception such as Plan B available over the counter, claiming that it too is a threat to women’s health. However, studies show that emergency contraception is safe and effective at preventing pregnancy. According to the World Health Organization, side effects are “uncommon and generally mild.”

News Law and Policy

Judge Blocks Mississippi ‘Religious Freedom’ Law, Calling it Discriminatory

Nicole Knight Shine

"But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined," U.S. District Judge Carlton W. Reeves wrote.

A U.S. District Judge temporarily blocked a sweeping and controversial Mississippi “religious freedom” law late Thursday, calling the legislation “arbitrary discrimination against lesbian, gay, transgender, and unmarried persons.”

“The State has put its thumb on the scale to favor some religious beliefs over others,” U.S. District Judge Carlton W. Reeves wrote in a 60-page decision issued hours before HB 1523 was set to go into effect.

Reeves ruled that the bill violated the First and 14th Amendments by allowing individuals, religious organizations, and some government employees with “sincerely held religious beliefs” to deny services to, as Reeves wrote, “lesbian, gay, transgender, and unmarried persons,” potentially gutting certain privileges and legal protections—such as those stemming from the 2015 Supreme Court decision legalizing same-sex marriage.

The bill was authored by Mississippi House Speaker Philip Gunn (R-Hinds), who had called the high court’s legalization of marriage equality “in direct conflict with God’s design for marriage as set forth in the Bible,” as the Washington Post reported.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together,” Reeves wrote in his decision.”But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens. It must be enjoined.”

The legislation, known as the Protecting Freedom of Conscience from Government Discrimination Act, was signed into law by Republican Gov. Phil Bryant in April, after clearing the Republican-controlled House and Senate.

The measure enshrined three religiously held tenets: that gender is determined at birth, that marriage is between a man and a woman, and that sex is “properly reserved” for heterosexual marriage. It determined that housing, employment, and adoption decisions could be made based on those religious beliefs.

A swift national and state-level outcry followed the passage of HB 1523, with 80 CEOs, among others, calling for its repeal as “bad for our employees and bad for business,” according to the court documents. The law had been challenged in Barber v. Bryant and Campaign for Southern Equality v. Bryant.

The state has not said whether it will appeal Reeves’ ruling. If the state does not appeal, the temporary order becomes permanent after another hearing.

“I am grateful that the court has blocked this divisive law,” said Rev. Susan Hrostowski, an Episcopal priest and a plaintiff in the Campaign for Southern Equality case. “As a member of the LGBT community and as minister of the Gospel, I am thankful that justice prevailed.”

The injunction Thursday follows a ruling earlier this week by Reeves, a 2010 Obama appointee, which blocked a provision in HB 1523 allowing circuit clerks to deny marriage licenses to same-sex couples, as the Washington Post reported. Twenty months prior, Reeves had struck down the state’s statutory and constitutional bans on same-sex marriage.