The Catholic roots of Hobby Lobby

From Salon, a history of the Hobby Lobby decision and a description of how its roots lie not in the purported Evangelicals who brought the case, but in the fierce rear-guard actions of the Roman Catholic conference of bishops.

 [The Bishops called] for a broad conscience clause that would allow any employer who had a moral objection to contraception to refuse to provide it. Increasingly it looked as if the fight wasn’t about finding a reasonable compromise that would allow Catholic employers to distance themselves sufficiently from the provision of contraception to satisfy at least the letter of the widely ignored Catholic teaching on contraception. It was an attempt to block the federal enshrinement of contraception as a basic women’s health care right.

Let's be clear about that.  "Religious Freedom" is a canard intended to cover the real effort to make contraception expensive and difficult to get.  Having failed to get their laity to adhere to RC teaching on birth control, they want to get the government to help them.

Women’s health advocates and political pundits expressed amazement that contraception could be so controversial in 2012. But they shouldn’t have been surprised. That’s because the forty-year fight over reproductive rights had never really been about abortion; it had always been about women and sex—specifically, the ability of women to have sex without the consequence of pregnancy. That’s why it was the shot heard ’round the world when in the midst of the flap over the all-male birth control panel radio talk show host Rush Limbaugh called Fluke a “slut” for wanting her insurance to treat birth control like any other prescription medication. Limbaugh had revealed what the right really believed about women and sex: Women who wanted to have sex—especially outside of marriage— and control their fertility were doing something fundamentally illicit and shouldn’t expect anyone else to pay for it. To them, birth control was just a lesser form of abortion.

My emphasis.  That's what it's about: controlling women's sexuality.  This is the old Roman Catholic binary of woman as slut or virgin. It continues to frustrate me that we women are letting them do this.  

The contraceptive mandate redux

The Obama administration has proposed a work around for private employers who object to contraceptive coverage.  Now, instead of telling their insurer that they object, they are supposed to tell the government.

But amazingly, even that isn't good enough for the Catholic Bishops. 

The United States Conference of Catholic Bishops issued a response that was somewhere between tepid and picky. In a statement, Archbishop Joseph Kurtz said, “On initial review of the government’s summary of the regulations, we note with disappointment that the regulations would not broaden the ‘religious employer’ exemption to encompass all employers with sincerely held religious objections to the mandate. Instead, the regulations would only modify the “accommodation,” under which the mandate still applies and still requires provision of the objectionable coverage. Also, by proposing to extend the ‘accommodation’ to the closely held for-profit employers that were wholly exempted by the Supreme Court’s recent decision in Hobby Lobby, the proposed regulations would effectively reduce, rather than expand, the scope of religious freedom.”

Thus nothing is good enough.

As Charles Pierce writes,

After all, the opposition to birth control is not based on the opposition to a government mandate. It's based on the opposition to the medicine, and the purpose that medicine serves. The question being litigated -- in public and, sadly, in the courts -- is not constitutional. It's theological. The essential text is not the Constitution. It's Humanae Vitae.

Five Catholic Men and the War on Women

Yesterday, the Supreme Court decided by 5-4 (That would be 5 Roman Catholic men against 3 women and a man) that Hobby Lobby, a "closely held" corporation, can have religious beliefs and refuse to provide coverage for certain forms of contraception to its employees.  They took pains to say this was only about contraception.

Charles Pierce writes,

Religious freedom exists in the realm of medicine only to those religions that the Court finds acceptable—and, I would argue, only to those religions to which the members of the Court belong.

The order has already been extended to cover employers who object to all forms of contraception.

The Affordable Care Act regulations issued by the federal government, however, required sixteen different preventive methods or services, including sterilization and pregnancy counseling. Depending upon how lower courts now interpret the Hobby Lobby decision, companies that fit within the Court’s “closely held company” bracket and offer religious objections could be spared from having to provide any of those services through their employee health plans.

In three cases in which a federal appeals court had rejected the challenges to the mandate, the new Supreme Court orders told those courts to reconsider, applying Monday’s decision. The companies or their owners had taken those petitions to the Court.
On three petitions filed by the federal government, involving appeals court rulings rejecting the challenges by corporations. their owners, or both, the Justices simply denied review.

So, right now, if you work for a Catholic, they can complicate your access to ANY form of contraception.  And that includes vasectomies for men.

Now, Justice Kennedy's concurring opinion said that this limitation was okay, because there is already a government "accommodation" for non-profits that don't want to cover contraception;  they file a form with the government claiming a waiver, and the government steps in.

Except that the next case on this issue is by such a non-profit that is protesting the "accommodation" because even to file the form, they argue, is a violation of their religious rights.  Basically, they want to deny their employees access to contraceptive coverage by whatever means.

That accommodation is itself the subject of a handful of legal challenges from religious freedom groups who believe that it violates their religious beliefs by, essentially, asking them to fill out a form. ...Today's majority opinion from Justice Alito certainly does not, it should be noted, settle the question of whether that accommodation is legal or not — addressing that question seems to be the next logical step in sorting out the legal details of the mandate

What this means?

That’s because to assert a right to control employees’ private choice [is] to hold that religious people—or, even more ominously, some favored religious people—are more easily injured than others, that their free-exercise rights trump those of their employees. The Court has insulated benefits to religion from veto by objecting citizens; now the religious want the right to veto on religious grounds benefits that flow to others. All consciences are equal; but some are thus more equal than others.

And, more ominously,

The Hobby Lobby decision may certainly embolden religious employers to object to laws they consider burdensome. But that doesn’t mean they’re always going to win. The court made clear in this ruling that religion should not always trump the law, and said its decision applies to the contraception mandate, not other insurance mandates. The court also specified that an employer could not use religion to get an exemption from laws that prohibit discrimination — on the basis of race, for example. The justices were silent, however, on whether employers’ religious beliefs could override laws that prohibit discrimination on the basis of sexual orientation.

So if you don't want to sell mushrooms to a gay person, let alone a cake, because your religion is opposed to gay people?  (And let's not go love the sinner, hate the sin:  you are opposed to the existence of gay people if you refuse to deal with us in civil space.)  That's the next question.   

Anti-gay activists are rejoicing at the Supreme Court's decision in Hobby Lobby today, in part because they are hopeful that the decision will pave the way for one of their own policy goals: to use the religious liberty argument to push for broad exemptions for corporations from nondiscrimination laws.

And if they can discriminate against gays, why not against women?  Or Mexicans?  Or Muslims?  We'll be discussing this new "Christian" separatism in a later post.

Do corporations have religious freedom?

A number of companies have challenged Obamacare because their owners do not want their employees to have access to contraception or abortions.  From Yahoo News:

Their case rests on the 1993 Religious Freedom Restoration Act (RFRA), which says people can seek to opt out of laws if they substantially burden their free exercise of religion. The government is allowed to burden a person’s religious freedom if it can prove that it has a compelling reason to and that the law is narrowly tailored to achieve its goal. 

So far, the 3rd and 6th Circuit Court of Appeals have ruled that RFRA does not protect for-profit companies hoping to opt out of providing contraceptive coverage to employees. “We simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” 3rd Circuit Judge Robert Cowen wrote for the majority.

But in the Hobby Lobby case, the 10th Circuit Court of Appeals ruled in favor of the Greens, saying the company was protected under RFRA. The judges cited Citizens United, the 2010 Supreme Court decision that found corporations cannot be restricted in how they spend their money for political reasons because it infringed on their right to free speech

Ah, Citizens United, the gift that keeps on giving.

Hobby Lobby, one of the firms involved, is owned by Christian Evangelicals.  It was recently in the news because it refused to stock any items themed towards Jewish holidays, telling a Jewish customer, "we don't cater to you people."  There was a furor over this and they conceded they might include some Jewish-themed items. After all, money is money.

But I don't understand how allowing employees to choose for themselves whether or not to have contraceptive coverage in any way impinges on the employer's free practice of his faith. He doesn't even know what coverage they are using  (or shouldn't--remember what almost happened in Arizona) .  Doesn't his desire to impose his values on his employees impinge on THEIR freedom of religion?

This goes back to something we keep harping on:  Freedom to practice your religion is NOT freedom to impose your religion.

Religious Freedom and Contraception

News on the "contraceptive mandate" front in which secular employers seek the right to deny their employees coverage for things of which the employers disapprove. From NCR online:

Judge Terence Sheen of the DuPage County Circuit Court granted the order Tuesday to Christopher and Mary Anne Yep and their company, Triune Health Group Inc., saying Illinois' conscience laws take precedence over the state mandate that the health insurance they provide to their employees must cover abortion, sterilizations and contraceptives.

So, let's get this straight, so to speak. A woman who wants access to contraception is denied insurance coverage for it, if her employer is Roman Catholic.  He is forcing her to live as though she were Catholic regardless of her beliefs and free conscience.  It's no more his business if she uses/needs birth control than it is of a Jewish employer if she buys a ham sandwich.

 And don't go telling me that she can buy it for cheap--different formularies have drastically different effects on individual women, and the "cheapest" may be a medically bad fit.

 What if she needs it for a medical, rather than contraceptive reason? Is she supposed to ask his permission about her private life and health history? In Arizona last year, there was an actual effort to give employers just this right--and more:

Arizona legislators have advanced an unprecedented bill that would require women who wish to have their contraception covered by their health insurance plans to prove to their employers that they are taking it to treat medical conditions. The bill also makes it easier for Arizona employers to fire a woman for using birth control to prevent pregnancy despite the employer's moral objection.

Just think that through.... if my employer (in a non-religious business) can fire me for my faith disagreeing with him, how is that different than firing someone for being a Jew, or a Mormon....or a Catholic?

Meanwhile, there's this German example of the cost of protecting their "religious freedom"

Germans were further outraged by reports this week that two Roman Catholic hospitals in Cologne had refused to carry out a gynecological examination on a 25-year-old suspected rape victim. An emergency doctor who had helped the woman told the newspaper Kölner Stadt-Anzeiger that the hospitals cited ethical objections to advise women on unwanted pregnancies and on steps that can be taken to prevent them, like the morning-after pill. The Archdiocese of Cologne denied that the church refuses to treat rape victims. The hospitals blamed a “misunderstanding” and said the matter was under investigation.

Now, let's just consider that, shall we? Many people in the US have no access to medical care outside of the Roman Catholic hospital behemoth. Darn those women and their female bits!  If they are "legitimately raped", it's their cross to carry a child.  Oh, and  don't forget those pesky homosexuals.  Don't let a dying man's husband into a hospital room, if it offends the Roman Catholic faith.  I mean, if it's a problem, shouldn't he have had the car accident somewhere where there was a non-Catholic hospital?

This is what is driving the "nones" and the anger against religion.  This, exactly. I walked out of the Roman Catholic Church over 30 years ago and they have NO RIGHT to tell me what to do.

FREEDOM OF RELIGION IS NOT FREEDOM TO IMPOSE RELIGION.

(see previous posts on this subject here.)

The root of the war on women

From Alternet, a compelling essay:

We’re having this debate over issues once considered settled because the right is trying to blame virtually all of the nation’s economic and social problems on one cause: the supposedly broken American family. It’s their only solution. It’s also increasingly clear that shoring up the family, in their view, involves restoring a traditional vision of the family, in which the man is head of the household, and women accept their civilizing role....

There it [is]: the notion that when government supports women, it is substituting itself in the role of husband and father. I tried to tell Steele that nothing about a woman having no co-pay for contraception prevents her male partner from being “responsible” once they “come together.” I never even got to make the point that women have a lot of the same health issues even if they’re not with a male partner. Some of us use the pill for health reasons, some of us use it to plan when to have children, and some of us use it to have sex we enjoy in relationships where there’s no thought of creating a family. The way men always have, by the way.

But the fact that I had to skirt the border of explaining how our lady parts work, and what special health needs we have from puberty to post-menopause, seems part of the problem: I don’t want to have to do that on national television — on a political news show. Why are we even having this conversation in 2012?

.... Today, there are other ways to shore up the family. If economically successful, college-educated people are more likely to marry and stay married, as Murray and his conservative colleagues agree they are, shouldn’t we look for ways to make sure more Americans are economically successful and college-educated? It seems like a win-win, whether our goal is to support marriage or to prevent the continued immiseration of the American working and middle classes, right?

Meanwhile, in Arizona, a new law would declare women pregnant two weeks before conception. Not kidding.

Arizona lawmakers gave final passage to three anti-abortion bills Tuesday afternoon, including one that declares pregnancies in the state begin two weeks before conception.

Who really defends the Constitution? (update)

Following upon on Chris Christie's veto of marriage equality in New Jersey, and the remarkable idea in contravention to the Constitution that a minority should have its rights voted on by the majority: Andrew Sullivan points out how the minority opposed to marriage equality keeps changing the rules, and can't even manage to be consistent in their "pro-Constitution" views. (My emphasis)

They moved the goalposts on us. When we actually began to win in state legislatures, such as California (twice!), or New Hampshire, or now Maryland and New Jersey and Washington State, that process became suddenly unacceptable - and undemocratic! - as well. Even on an issue many hold to be a core civil right, we were told the courts were irrelevant and now that the legislatures were irrelevant. This was particularly odd coming from conservatives who at one point in time were strong believers in restraints on majority tyranny. But this is what a legislative debate can do that no referendum can, and it's why the founders established a republic not a pure democracy:

...But the way in which a tiny 2- 3 percent minority seeking basic civil equality has been forced now to be subject to state referendums, even after winning legislative victories, strikes me as revealing. It's basically an attack on representative government, a resort to the forms of decision-making which maximize the potential for anonymous bigotry and minimize the importance of representative government, a core achievement of Anglo-American democracy, that can help enhance reason of the accountable against the sometimes raw prejudice of the majority.

Christie is a man whose candor I admire in many ways. But this was an act of cowardice and unfairness and a misguided disregard for representative democracy. How many other duly enacted laws must now be sent to the referendum process for final judgment. Why have a legislature at all? And this from the party that claims to defend the Constitution.

Live your life by your own values. Set an example if you choose. But do not, in a representative democratic republic, presume that you can force your views on those who equally passionately, believe differently.

Update: Meanwhile, the Prop8 case will have its next level of appeal to the 9th circuit en banc. And gay couples still can't marry in CA.

The hypocrisy of "religious freedom" in the attack on women

Last week, we were treated to an image from a House hearing on contraception, in which nearly all the speakers were male, and all were opposed to contraception. This battle should have been over 40 years ago, but apparently, men still want the right to decide if women get to control their bodies.

Of course, in keeping with the current right-wing meme, this isn't framed as an issue about contraception, but about "religious freedom". And this applies not just to contraception, but marriage equality and abortion. But it's not about freedom at all. It's about elevating one faith group's views over every other. Not content with expecting their own congregants to live by their doctrine, they want the government to force the rest of us to do so. (Read Catholic writer Gary Will's take down here)

And while we're looking at the disgusting situation of men in Washington deciding what women can do with their bodies, Dahlia Lithwick tells us what the men in Virginia did. (My emphases-- and please do go read the whole thing.)

This week, the Virginia state Legislature passed a bill that would require women to have an ultrasound before they may have an abortion. Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced. Since a proposed amendment to the bill—a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound—failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under state law.

And the juxtaposition is striking, as Alex Koppelman writes.

This all makes for an odd spectacle: Republicans in Washington are up in arms over the violation of religious liberty they say is involved in forcing a religious institution to offer insurance that completely covers birth control. But, not far away, their colleagues are working to pass a law that forces a woman to undergo an invasive procedure in order to have an abortion—a law which clearly violates that woman’s liberty, not to mention her person. On that, they seem to be silent.

David Frum sees the same problem,

Freedom for some must be freedom for all, and the rights of churches are most convincingly upheld by those who also uphold the rights of women.

Let's be very clear on the inconsistencies of the fetus fetish brigade. They are not "pro-life" if the life is that of a woman. Here's a searing story from a woman whose placenta ruptured during pregnancy leading to a massive and life-threatening hemorrhage. The only way to save her is to terminate what is an inviable pregnancy.

Everyone knew the pregnancy wasn’t viable, that it couldn’t be viable given the amount of blood I was losing, but it still took hours for anyone at the hospital to do anything. The doctor on call didn’t do abortions. At all. Ever. In fact, no one on call that night did. ….

A very kind nurse risked her job to call a doctor from the Reproductive Health Clinic who was not on call, and asked her to come in to save my life....The doctor who didn’t do abortions was supposed to have contacted her (or someone else who would perform the procedure) immediately. He didn’t. Neither did his students. .... I don’t know if his objections were religious or not; all I know is that when a bleeding woman was brought to him for treatment he refused to do the only thing that could stop the bleeding. Because he didn’t do abortions. Ever.

My two kids at home almost lost their mother because someone decided that my life was worth less than that of a fetus that was going to die anyway. My husband had told them exactly what my regular doctor said, and the ER doctor had already warned us what would have to happen. Yet none of this mattered when confronted by the idea that no one needs an abortion. .... After my family found out I’d had an abortion, I got a phone call from a cousin who felt the need to tell me I was wrong to have interfered with God’s plan. And in that moment I understood exactly what kind of people judge a woman’s reproductive choices.

This "religious freedom" argument is not about freedom at all. At least, not for women.

As the old saying goes, if you can't trust me with a choice, how can you trust me with a child?

No contraception for anyone: the real plan

As you know the Roman Catholic church is outraged, outraged that "civilian" Catholic agencies (those with a function not limited to religion, like hospitals) might be required to provide contraceptive coverage to female employees.

First, this does not apply to institutions with purely religious functions, like churches. However, a Catholic friend told me that she was told that if this passes, the Diocese would be "unable to provide health care for its employees." That is a bald faced lie. Churches are, and continue to be, exempt.

Never mind that a lot of Catholic agencies already provide contraception. But why should we let facts get in the way?

Illinois is one of 28 to have adopted a contraception coverage requirement. Eight of those states provide no opt-out clause for religious institutions and the administration’s new rule would expand conscience protections to those parts of the country.

A recent poll conducted by the Public Religion Research Institute also found that a majority of Americans, including a majority of Catholics, support a contraception coverage requirement.

And never mind that no one is forcing an individual woman to use contraception: she's free not to use it, of course, as a personal moral choice. And 98% of Catholic women choose to use contraception (PDF).

But now, it turns out that the goal is beyond Catholic-affiliated hospitals, to abolish coverage from ALL plans:

[Fixing this] means removing the provision from the health care law altogether, [Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops] said, not simply changing it for Catholic employers and their insurers. He cited the problem that would create for "good Catholic business people who can't in good conscience cooperate with this." "If I quit this job and opened a Taco Bell, I'd be covered by the mandate," Picarello said.

Now think of what this says, think of the precedent it sets. No employer would have to provide contraception if he claims to be Catholic (and it would be a "he", wouldn't it?) ANYTHING you claim as a religious exemption can be used, under this logic, in a non-religious setting. It's no different to say that a florist doesn't have to do business with a gay person to saying that he doesn't have to do business with a black person, or a Muslim.

What if an employer refused to promote a woman over a man, because of devout fundamentalist beliefs that women must always be subservient? So much for non-discrimination policies and equal pay! And do you want your access to prescriptions to be determined not by you and your doctor, but the fringe beliefs of a pharmacist?

This is an unprecedented intrusion of religious belief into the public square, and a vicious attack on women's rights.

Zack Beauchamp writes (my emphasis)

The only institutions covered by the birth control mandate have chosen to participate in the broader market, a zone of private life governed by political rules. It's incumbent on critics to explain why this particular rule is a dangerous expansion of state power over market actors as compared to, say, forcing a Randian executive to follow minimum wage laws. If they can't, then it seems like the coverage requirement protects women's rights without appreciably increasing the state's threat to private associations.

Update: Turns out this became law under George Bush.  This is a manufactured political outrage!

In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn't provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don't offer prescription coverage or don't offer insurance at all are exempt, because they treat men and women equally—but under the EEOC's interpretation of the law, you can't offer other preventative care coverage without offering birth control coverage, too.