The GOP War on Women: a manufactured ‘controversy’ over contraception

Posted by AzBlueMeanie:

I have been observing this entirely manufactured "controversy" over the Affordable Care Act proposed rule providing for insurance coverage for contraception (there was not even a final rule yet, it was in the public comment stage) with bewildered amazement.

Some extremist Tea-Publicans asserted that President Obama is engaging in "a war on religion" (which dovetails nicely into their other conspiracy theory memes that President Obama is a "secret Muslim" who "wants to impose Sharia law in America") and is violating "religious liberty" under the First Amendment with this proposed rule, and the media villagers and Beltway bloviators — almost all of whom know very little about religion and even less about law — provided an echo chamber for this libel and slander.

Somewhere GOP strategist Frank Luntz has a satisfied smile on his face knowing just how easy it is to manipulate a gullible and compliant corporate media to manufacture a "controversy."

It's time to filter out the emotional baggage that injecting religion into any issue always brings with it and to focus just on the pure legal question for clarity.

The relevant portion of the First Amendment provides "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . ." Is President Obama seeking to establish a state-sponsored religion. No. Is President Obama prohibiting anyone from engaging in the free exercise of their religion? No.

Ah, but the Tea-Publicans and the Catholic Bishops asserted that requiring religious organizations whose tenents are opposed to contraception to provide insurance coverage for contraception violates their "religious liberty."

First of all, the liberties afforded under the Bill of Rights, including "religious liberty," are individual rights. Those rights and liberties belong to and are exercised by individuals.

American law has, however, carved out exceptions for religious organizations. There is an express exception for religious organizations under the Affordable Care Act proposed rule providing for insurance coverage for contraception. So what's the problem?

Tea-Publicans, with emotionally-charged cover provided by the Catholic Bishops, are engaged in overreach seeking to extend the exception for religious organizations to activities that are substantially unrelated to its religious purposes, such as schools, colleges and universities; hospitals; television and radio stations; publishing houses, etc. In fact, Tea-Publicans are now proposing a bill in Congress that would allow all employers to opt-out of providing for insurance coverage for contraception. This exposes the lie that this has anything at all to do with the "religious liberty" of religious organizations.

Where a religious organization enters the stream of commerce in a manner that is so substantially unrelated to its religious purpose that the profits of such activities solely in those activities are subject to taxation, it is a covered entity. This has long been the case under Title VII of the Civil Rights Act of 1964, which contains an exception for religious organizations. I have sued religious organization-related entities for employment discrimination under Title VII and this current construct that religious organizations are somehow exempt from having to comply with the laws of the United States was never asserted as a defense.

More specifically to the issue of contraception, Daily Kos accurately reports:

[A contraception] mandate has been law in California for a long time. Since 1999, actually.

Cal. Insurance Code § 10123.196 and Cal. Health & Safety Code § 1367.25 (1999) require certain health insurance policies that already cover prescription drugs to provide coverage for prescription contraceptive methods approved by the FDA. Religious employers can request health insurance plans without coverage of approved contraceptive methods that are contrary to the employer’s religious tenants. (AB 39)

Now, California allows churches to opt out, but so does the federal one. In fact, the federal law was modeled after the exemption offered by California and other states.

More than half the states have similar "contraceptive equity" laws on the books, many with religious exceptions similar or identical to the one included in the administration's regulation.

That's no accident. "The HHS rule was modeled on the exceptions in several state laws, including California, New York and Oregon," says Lipton-Lubet of the ACLU.

The Catholic Church challenged the California law and failed with a 6-1 drubbing at the California Supreme Court.mandate has been law in California for a long time. Since 1999, actually.

This overreach by Tea-Publicans is well stated in this post at Daily Kos: Say what you want, Mitch, Justice Scalia disagrees with you:

Senate Minority Leader Mitch McConnell:

"In this country the government doesn't get to tell you or your organization what your religious views are – and they could well be minority views – but the Bill of Rights is designed to protect the minority from the will of the majority," McConnell said on CBS's "Face the Nation."

Justice Antonin Scalia, writing the majority decision in Employment Division v. Smith:

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

Furthermore,

When 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.

In other words, if they want to be members of American society, the Catholic bishops have to live by the rules of American society.

This manufactured "controversy" is just the latest in a long line of attempts by the far-right to erode the wall of separation between church and state and to create religious exemptions from having to comply with the law. A case in point are the Pharmacist Conscience Clauses Laws (also known as "refusal clauses") that permit pharmacists to refuse to fill emergency contraception and contraception prescriptions. The current construct of this argument would extend this exception to all employers, which is a substantial overreach.

The effect of such a blanket exception would give religious dogma a "get out of jail free" card over compliance with state and federal law. It would establish that religious dogma has supremacy over all other law. It would infringe upon the "religious liberty" of individuals to the free exercise of their religion by imposing the religious beliefs of a particular business owner or employer over his employees and customers alike.

The current manufactured "controversy" is the natural slippery slope created by the Pharmacist Conscience Clauses and similar measures for doctors and hospitals in the provision of abortion services. It is the gradual erosion of the wall of separation of church and state and the establishment of religious dogma having supremacy over all other law, the long sought goal of the far-right Christian Reconstructionist and Dominionist movements. They are using "religious liberty" as both a shield and a sword.

Something to ponder: The Catholic Church is also opposed to the death penalty. Should a Catholic who is convicted of murder be able to assert "religious liberty" to avoid a sentence of death because it conflicts with his or her religious beliefs? Should Church dogma have supremacy over the law? These are the kinds of slippery slope arguments you will get into once you go down this road.

UPDATE: Check out Jay Bookman blog, Arguing for Obama, Justice Antonin Scalia:

I’ve been reading Justice Antonin Scalia’s decision in “Employment Division v. Smith,” a 1990 case in which the Supreme Court pretty much settled the question of whether the federal government can require or outlaw actions that might bump up against religious beliefs. The decision makes it clear that the Catholic bishops have no legal or constitutional basis for their complaint.

Scalia, himself a devout and very conservative Catholic, wrote in the majority decision:

“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

* * *

In his own opinion in the Smith case, Scalia wraps it up rather bluntly:

“Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.”