Friday, March 02, 2012

Don't violate my First Amendment rights: buy me a new computer

This is the best explanation I've seen of the contraception issue: since when does failing to provide something for free equal an abrogation of rights?  Hit & Run: "Does reproductive freedom imply a right to free birth control?"
Supporters of Obama's birth control rule conflate liberty with subsidies, insisting that you are not really free to do something (in this case, use contraceptives) unless it's free. According to this logic, observant Jews do not have religious freedom unless the government pays for their kosher food, bloggers do not have freedom of speech unless taxpayers buy them computers, and Americans in general do not have a right to keep and bear arms if they have to pay for guns with their own money. By contrast, the religious institutions that object to the contraceptive mandate are not asking for subsidies; they are resisting them. They object to a regulation that forces them to pay for products and services they consider immoral. They want the freedom to offer their employees health plans that do not cover contraception and sterilization.
On a related note, HHS Secretary Kathleen Sebelius was questioned at a Congressional hearing about who was eventually going to pay for all this new contraceptive care.  She replied: Dude, it's totally free because "The reduction in the number of pregnancies compensates for the cost of contraception."

But if we're trying to avoid pregnancies, why is the government paying for boner drugs?  CBS News: "Medicare benefit to cover Viagra."

Ah, there anything it can't do?


Scotus B. Driftwood said...

Those analogies (kosher food, computers, guns) are moronic. However, the mere fact that they're asinine doesn't mean they aren't the best explanation you've seen.

Antonin Scalia:
"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."

Felix Frankfurter:
"Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities."

Antonin Scalia again:
"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."

And finally, Antonin Scalia:
"Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," [Braunfeld v. Brown, 366 U.S. at 606], and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order... If prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended....To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling' - permitting him, by virtue of his beliefs, 'to become a law unto himself,' contradicts both constitutional tradition and common sense."

Eric said...

Quite so: if I remember correctly, the Supreme Court knocked down peyote smokers claiming religious freedom and also said Christian Scientists couldn't prevent their kids from getting polio vaccines.

The critical difference here is that Obamacare mandates that people - without due process - give up their property to support a policy they don't support. A week ago there was no restriction on contraceptive rights and there's no such restriction now: only Obama thinks somebody else should pay for it.

Well, those Catholics can afford it. (Disclaimer: I'm not Catholic)

A.L.T. Cuttenpaste said...


There's been no let-up in the debate about the Obama administration's rule requiring most employers to provide prescription birth control to their workers without additional cost.

Here's the rub: The only truly novel part of the plan is the "no cost" bit.

The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives.

"Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."

In fact, employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.

Here's how the EEOC put it at the time: "The Commission concludes that Respondents' exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes."

But it's not only the EEOC that has ruled on the issue. 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.

There are now lawsuits challenging the constitutionality of the policy, including a new one filed on behalf of the religious television network EWTN. But the exemptions have already been tested in court, at least at the state level.

In 2004, the California Supreme Court upheld that state's law, in a suit brought by Catholic Charities, on a vote of 6-1.

The court ruled that Catholic Charities didn't qualify as a "religious employer" because it didn't meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):

The organization's primary purpose is "the inculcation of religious values."
It primarily employs people of that religion.
It primarily serves people of that religion.
It's a registered nonprofit organization.

Two years later, in 2006, New York's top state court rejected a claim by Catholic Charities and several other religious groups that the state's contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups.

"When a religious organization chooses to hire nonbelievers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees' legitimate interests in doing what their own beliefs permit," the justices wrote.

Said Lipton-Lubet, "In both the California and New York cases, Catholic Charities made arguments very similar to the ones being made now with respect to the HHS rule. Those arguments failed in that litigation, and they're no more persuasive here."