People For the American Way Foundation’s Twelve Rules for Mixing Religion and Politics is grounded in our commitment to religious liberty and church-state separation, and in the recognition that fundamental constitutional values sometimes come into creative tension. Where to draw the lines in any particular situation can be a challenge, and even people who generally agree on constitutional principles may disagree about how they should apply on a given policy question. Nothing demonstrates this complexity more than the Obama administration’s efforts to ensure that American women have access to contraception and reproductive health services while addressing objections that such requirements would violate the conscience of some religious employers.
Religious Right groups and their allies at the U.S. Conference of Catholic Bishops have for months been portraying the Obama administration’s proposed rules requiring insurance coverage of contraception as totalitarian threats to religious liberty, even after the administration adjusted its initial proposal to address those concerns. Some Religious Right leaders are sticking with their ludicrous “tyranny” message even after the Obama administration today released a further revision that broadens the number of religious groups that will be exempt from new requirements while still guaranteeing women access to contraception.
In describing the policy proposal, HHS Deputy Director of Policy and Regulation Chiquita Brooks-LaSure told reporters, “No nonprofit religious institution will be forced to pay for or provide contraceptive coverage, and churches and houses of worship are specifically exempt.” Under the plan, women who work for such organizations would have access to no-cost contraception coverage through other channels.
Here’s where it gets interesting: The new proposal won praise both from Planned Parenthood and NARAL Pro-Choice America – and from right-wing ideologue Bill Donohue of the Catholic League, who called it “a sign of goodwill by the Obama administration toward the Catholic community.”
In contrast, the proposal was slammed by the far-right Family Research Council and Concerned Women for America – and by Catholics for Choice, which said, “While protecting contraceptive access under the ACA is a win for women, the administration’s caving in to lobbying from conservative religious pressure groups is a loss for everyone.” Catholics for Choice warned that a broadened exemption for religious groups “gives religious extremists carte blanche to trump the rights of others” and that women working at Catholic organizations “are wondering whether they’ll be able to get the same coverage as millions of other women, or if their healthcare just isn’t as important to the president as their bosses’ beliefs about sex and reproduction.”
James Salt, executive director of Catholics United, portrayed the approach as a win-win. “As Catholics United said from the very beginning, reasonable people knew it was right to be patient and hopeful that all sides could come together to solve this complex issue. The White House deserves praise in alleviating the Church’s concerns.”
Leading advocates for women’s heath praised the new approach. Cecile Richards of Planned Parenthood said the group would be taking a look at the details, but said “This policy makes it clear that your boss does not get to decide whether you can have birth control.” A statement from NARAL Pro-Choice America said the group“is optimistic that these new draft regulations will make near-universal contraceptive coverage a reality.”
Meanwhile, anti-choice advocates that have been pushing for rules that would exempt even individual business owners who have objections to providing contraceptive coverage for their employees complained that the new exemption would not extend to private businesses.
Concerned Women for America President Penny Nance said the new rules show Obama’s “intent to trample the religious liberties of Americans” and said, “When religious groups and individual Americans are forced to deny their deeply held religious convictions, it is not called “balance,” it’s called “tyranny.” The Family Research Council repeated Religious Right characterizations of the previous accommodation as an “accounting gimmick.”
People For the American Way believes that the government has a compelling interest in ensuring that women have access to family planning services. Indeed, Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the HHS regulations, testified last year that the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.
People For the American Way is also deeply concerned about the efforts by Religious Right groups and its conservative Catholic allies to re-define “religious liberty” in unprecedented ways that would allow groups to take taxpayer dollars without abiding by reasonable regulations such as anti-discrimination requirements – and to allow private employers and others to claim exemption from all kinds of laws based on “religious” or “moral grounds.”
In this case, we believe the Obama administration has acted in good faith to promote the nation’s public health interests while addressing concerns that those policies might burden religious liberty. Our courts have long recognized that religious liberty, like the freedom of speech, is not absolute, and that policymakers must often balance competing interests. That is what the administration has done.
What does Citizens United have to do with women’s health care? According to a decision last week from the Seventh Circuit Court of Appeals, perhaps more than you may think.
Just a week after the Tenth Circuit Court of Appeals rejected Hobby Lobby’s petition to prevent enforcement of the Affordable Care Act’s contraception coverage provision, the Seventh Circuit Court of Appeals made a ruling at odds with that decision. Last Friday the panel granted a motion for an injunction pending appeal to plaintiffs Cyril and Jane Korte who run Korte & Luitjohan Contractors, a construction company. The Kortes had argued that the contraception mandate of the ACA violated their right to religious freedom.
In other words, the Seventh Circuit Court of Appeals decided that – at least temporarily – the company does not have to comply with the Obama Administration’s rules that most employer-provided health care plans must cover birth control.
ThinkProgress’s Ian Millhiser points out that the Appeals Court cited Citizens United in their reasoning, a move that he finds “ominous.” Millhiser highlights a line from the decision – “That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010)” – before arguing that:
As a matter of current law, this decision is wrong. As the Supreme Court explained in United States v. Lee, “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” Lee established — with no justice in dissent — that religious liberty does not allow an employer to “impose the employer’s religious faith on the employees,” such as by forcing employees to give up their own rights because of the employer’s objections to birth control.
Nevertheless, the Seventh Circuit’s citation to Citizens United is an ominous sign. Lee was decided at a time when the Court understood that corporations should not be allowed to buy and sell elections. That time has passed, and the precedents protecting against corporate election-buying were overruled in Citizens United. It is not difficult to imagine the same five justices who tossed out longstanding precedent in Citizens United doing the same in a case involving whether employers can impose their religious beliefs on their employees.
Circuit Judge Ilana Diamond Rovner also raised issues with the decision. In her dissent, she addressed the corporation issue head-on. She noted that:
...it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.
Similarly, our affiliate People For the American Way Foundation’s Paul Gordon noted last month in reference to the Hobby Lobby decision that the question of where to draw the line in terms of government regulation of religious institutions and individuals is a tricky one. Still, he pointed out:
The requirement to provide certain health insurance for your employees – not for yourself, but for people you hire in a business you place in the public stream of commerce – seems a reasonable one.
Attacking President Obama for his supposed “hostility” to religious liberty is the tactic du jour for congressional Republicans, according to a new piece in the Huffington Post by PFAW Senior Fellow Peter Montgomery.
After a widely-mocked hearing before the House Oversight Committee on contraceptive coverage, conservatives testifying before the Judiciary Committee continued to claim that the Obama Administration’s compromise on contraceptive coverage is not sufficient – and even if were, the Administration couldn’t be trusted to actually carry it out.
But many of their arguments relied on narrow definitions of the beginning of life that are at odds with medical standards and even with the rest of the religious community:
The arguments from Republican members and their witnesses boiled down to three main claims: the regulations requiring contraception coverage are unconstitutional burdens on religious organizations; the compromise to prevent religious organizations from having to pay for contraceptive coverage is only "an accounting gimmick" that does not resolve any of the moral or religious liberty issues; and the Obama administration has proven itself hostile to religious liberty and cannot be trusted to follow through on its promised accommodation.
...Several Democratic members pointedly noted that Lori was not speaking for all Catholic leaders, placing into the record positive statements about the proposed compromise from the Catholic Health Association, the Association of Jesuit Colleges and Universities, and other Catholic groups. Meanwhile, outside the hearing, other Catholic voices challenged the credibility of the bishops' religious liberty alarmism.
Others cited fallacious examples to attempt to bolster their claim of lacking religious accomodation.
Also on hand: more nonsensical analogies to join Bishop Lori's previous testimony that the regulations were akin to forcing a Jewish deli to serve pork. Committee Chair Lamar Smith asked whether the government could force people to drink red wine for its health benefits. (As Rep. Zoe Lofgren noted, no one is being forced to use birth control.) Religious Right favorite Rep. Steve King lamented that in the past Christians had "submitted" to Supreme Court decision on prayer in schools and the Griswold decision and the right to privacy "manufactured" by the Supreme Court.
The piece goes on to discuss how religious liberty does require some accommodation of religious beliefs, and striking an appropriate balance is a delicate task. But whatever the outcome, Montgomery notes, the courts will evaluate the regulation of competing interests, and “religious liberty in America will survive.” You can read the entire article here.
In a 51-48 vote today, the Senate rejected an amendment to the transportation bill by Missouri Sen. Roy Blunt that would have allowed employers to deny their employees health insurance coverage for any treatment for any reason.
“The Blunt amendment was not only astoundingly bad public policy, it represented a fundamental misreading of the First Amendment. If it became law, it would have put working Americans – regardless of their religious beliefs – at the mercy of the religious beliefs of their employers. That’s not religious liberty – in fact, it’s exactly the opposite,” said PFAW president Michael Keegan in a statement released earlier today.
The extremity of this amendment wasn’t lost on every member of the GOP. Senator Olympia Snowe (R-ME) voted against the amendment, and even major presidential contender Mitt Romney opposed the bill:
“I’m not for the bill, but look, the idea of presidential candidates getting into questions about contraception within a relationship between a man and a woman, husband and wife, I’m not going there.”
But of course, after remembering that perpetuating the War on Women is one of the GOP’s primary tactics this year, he reversed course in record time:
“Of course I support the Blunt amendment. I thought he was talking about some state law that prevented people from getting contraception so I was simply — misunderstood the question and of course I support the Blunt amendment.”
The American people, and in particular the 20 million American Women whose reproductive health coverage would have been jeopardized by the Blunt Amendment, are quickly losing patience for the type of brazen politicking that puts pandering to the extreme right-wing over the legitimate needs of the country.
The Senate will reportedly vote this week on the Blunt amendment, an addition to the transportation bill from Missouri Sen. Roy Blunt that would, if it became law, throw the American health care system into chaos.
Blunt’s amendment, part of the right-wing overreaction to President Obama’s mandate that health insurance policies cover contraception, would allow any employer to refuse any employee insurance for any treatment on religious grounds. So not only could any boss refuse his female employees access to birth control, but any employer could refuse coverage for any procedure or medication he or she found morally offensive – including things like blood transfusions, vaccinations, or even treatment from a doctor of the opposite sex.
Not only would the Blunt amendment mean that comprehensive health insurance wouldn’t necessarily provide comprehensive health insurance – it would throw the country’s health care system into chaos, as each employer and each insurer carved out their own sets of rules.
The plan is bad public policy and antithetical to religious freedom, but it will probably get the votes of most Republican senators. In fact, the basic idea behind the plan is something that’s already been embraced by Mitt Romney and Rick Santorum.
A large majority of Americans think that insurance policies should be required to cover basic reproductive care – including contraception – for women. The Blunt amendment would not only deny that care to women, it would go even further in denying health care to all American workers for any number of reasons totally beyond their control.
This is straight-up extremism: and American voters know that.
UPDATE: The Democratic Policy and Communications Center estimates that the Blunt amendment could put preventative care for 20 million women at risk.
To no one's surprise, the United States Conference of Catholic Bishops has rejected President Obama's compromise that respects both the rights of women to contraception and the religious liberty of employers who are affiliated with religious organizations opposed to birth control. Under the compromise, church-affiliated organizations will not be paying for contraception, and insurance carriers will bear the cost of providing it to women without a co-pay or deductible. The Catholic Health Association and Catholic Charities quickly announced that their concerns had been addressed, and that their religious liberty would not be impaired by the modified rules. Some Republicans such as Sens. Susan Collins and Olympia Snowe are similarly satisfied.
Yet the Conference of Catholic Bishops, as well as Republican congressional leaders and presidential candidates, are declaring that the compromise is part of a larger war against religious liberty. Senate Republicans are even suggesting that the birth control coverage requirement threatens the religious liberty of employers completely unconnected to religious organizations. But since these forces have so often similarly and wrongly categorized many government policies they disagree with, it is hard to take the claim seriously.
Religious liberty is one of the core protections of the United States Constitution, one whose importance cannot be overstated. And there are times when it may be proper to allow certain religious-based exemptions from generally applicable laws, such as conscientious objector status in a military context. But those are the exceptions, not the rule: We generally do not give people the right to be exempt from laws they disapprove of simply because their disapproval is religiously based.
In the current debate over health insurance, the Conference of Catholic Bishops and its partners use the language of universal religious liberty. But their February 10 news release explaining why they oppose the coverage requirement makes clear that they are making this claim only for the religious liberty of people who share their specific religious beliefs about contraception and abortion:
First, we objected to the rule forcing private health plans — nationwide, by the stroke of a bureaucrat's pen—to cover sterilization and contraception, including drugs that may cause abortion. ...
Second, we explained that the mandate would impose a burden of unprecedented reach and severity on the consciences of those who consider such "services" immoral: insurers forced to write policies including this coverage; employers and schools forced to sponsor and subsidize the coverage; and individual employees and students forced to pay premiums for the coverage. We therefore urged HHS, if it insisted on keeping the mandate, to provide a conscience exemption for all of these stakeholders—not just the extremely small subset of "religious employers" that HHS proposed to exempt initially.
Their statement was notably silent about conscience protections for other religious beliefs. They have not been talking about the right of employers from denominations that generally reject modern medical intervention to not provide their employees health insurance at all. Matthew Yglesias asked in a blog post this week if they would rush to the defense of an employer named Abdul Hussain who refused on religious reasons to offer employees health insurance that lets employees visit doctors of the opposite sex. If you really thought the principle of religious liberty was at stake, would you be satisfied with a fix that addresses only your religious beliefs but ignores everyone else's?
Whether it's contraception, marriage equality, or abortion, "religious liberty" has too often been used as a feint to disguise an aggressive demand for special rights. Specifically, the radical right regularly demands exemptions for conservative Christians and those who share their beliefs from laws they don't like.
Even when they promote "conscience" legislation with broad language that seems to be applicable to all religious beliefs, their selectivity in demanding such laws is telling. For instance, the "conscience" provisions in marriage equality legislation are generally expressed in general terms not specific to gays and lesbians' marriages, but those provisions are only inserted into state law when gays and lesbians are finally allowed to marry. Such provisions were being pushed last year in Maryland, for instance, but when the marriage equality bill failed to pass, self-proclaimed religious liberty proponents on the right made no effort to adopt the conscience provisions that would then have only affected opposite-sex married couples. Nor are right-wing groups loudly demanding such religious liberty provisions in states with DOMA-style laws like Texas, Oklahoma, and Utah. In states like these, where marriage rights for same-sex couples are foreclosed, the right is not demanding the type of "conscience" provisions for groups not providing services to married couples that they demand in states where gays can marry. In cases like these, what they claim is a general religious liberty protection is clearly designed to hurt one group and one group only.
Consider the irony of right-wing groups who crusade against what they call "special rights" for LGBT people demanding statutory exemptions solely for their own particular religious beliefs. Can there be a better example of demanding "special rights?"