The controversy over President Obama’s new guidelines for contraception coverage requiring most employers to provide prescription birth control coverage for their employees at no additional cost has had me treading carefully the past couple of days. I really hate it when a possible religious rights issue conflicts with a health and woman’s rights issue.
Superficially and at first glance I thought that the Catholic Church and the religious right might have a point, this despite my automatic knee jerk reaction to be for this requirement. I had to be careful of this knee jerk bias on my part in evaluating the arguments, both for and against.
I also had to keep in mind that just because something might be a very good thing to do does not mean that it is automatically constitutional. Just as something being a bad thing to do not mean that it is unconstitutional. The worth of an idea or action is independent of its Constitutionality.
From my readings the basic issue is what does the religious exemption cover? That it covers churches themselves is a no brainer. But does it cover hospitals, universities, and charities – activities that many religious people see as an extension of their faith and church?
Historically they have, at least for the federal government. Catholic hospitals, universities, and charities are tax exempt. Given this fact then why should they not be exempted from this insurance requirement as well? A good question.
So President Obama’s administration is tightening up on the definition of religious exemptions. However, that does not make this wrong or unconstitutional. An answer to that good question above might lie in the following considerations:
- These churches and charities hire a large number of non- Catholics.
- They service many non-Catholics.
- They take money from the Federal Government; for example, the hospitals in the form of accepting Medicaid and Medicare.
Looking at this, and looking at the numerous state laws that also require contraceptive coverage (although usually with a little bit broader religious exemption, or work-arounds) I have come to the conclusion that this is probably constitutional (hopefully if it goes to the Supreme Court they will see it the same way since, as I have mentioned, it is not a clear cut issue). I especially liked these criteria that the California Supreme Court came up with to decide on whether a given organization was a “religious employer” or not.
1) The organization’s primary purpose is “the inculcation of religious values.”
2) It primarily employs people of that religion.
3) It primarily serves people of that religion.
4) It is a registered nonprofit organization.
By the way, these are also the new federal guidelines.
So far, so good. I think this change both good and constitutional. However is it a good move politically?
Politicians can make principled, drawing a line in the sand and dare you to step over it stands if they wish. However they usually wind up not lasting long in public service if they do it too often (as I believe will be happening with many Tea Party members of the House this fall).
An effective politician will make that stand when he is sure of winning or if the issue is of such a magnitude and seriousness that a series of smaller more manageable (and survivable) steps will not do. Most of the time a politician will compromise on issues. As long as it inches towards the ultimate goal (and that goal is not forgotten) then progress has been made.
Too many principled stands can eliminate a good politician and means that not only will that inch not happen but that instead the other side can inch towards their rather contrary and entirely unreasonable goals. As long as the other side only manages to slow and not reverse or stop the progress then we have made progress.
In this case the political waters are rather murky. Politically this is rather tricky and I’ve read analysis going both ways – it will hurt President Obama or it will help him. To my mind a limited compromise is called for here – something along the lines of what Hawaii has done. From the Guttmacher Institute:
“The Hawaii law specifies that when an employer is exempted from the contraceptive coverage requirement on religious grounds, its employees are entitled to purchase coverage directly from the plan. The cost to the employee must be no more than the price the employee would have paid had the employer not been exempted. The law requires an exempted employer to notify its employees of this option.”
If accepted then the employees still get coverage. However, if rejected – and the U. S. Conference of Catholic Bishops has already said that this is unacceptable to them – then I think President Obama, advocates of contraception, women’s health groups, and promoters of women’s rights will still win.
Consider the following:
- Many if not most Catholic Hospitals, Universities, and Charities already offer insurance with contraceptive coverage.
- The federal requirement to provide contraceptive coverage is already in place and has been since 2000 when the federal Equal Opportunity Employment Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act.
- The great majority of sexually active Catholic women use some sort of contraception – not the “natural” method advocated by the Catholic Church. In fact, only 3% of married Catholic women rely on this natural method.
- A small majority of Catholics agree with the administration’s new guidelines.
An offer of a compromise will, if accepted, still accomplish the overall goal of the guidelines. If rejected it can only help President Obama politically with those who still might be concerned over church and state issues and make the Catholic Church’s hierarchy seem the intransigent ones.
What is really rather sadly interesting is that by this policy, a policy that the Catholic Church opposes as do many on the religious right, the administration may wind up reducing the number of abortions in the United States. Contraceptive use the the best and most effective way to reduce abortions – yet for all of their talk about and concerns expressed over abortions both religious groups oppose this policy. Talk about irony.
