Tuesday, February 7, 2012

Let's go through it again — UPDATED

I'm surprised by the number of people who either have no clue what's at stake in the fight between the Catholic Church in America and the Obama Administration or have convinced themselves that (to use my father's expression) we're "hollerin' before we're hurt".  After all, does not the Health and Human Services have religious exemptions?  Should not institutions which receive federal dollars comply with federal mandates?  And isn't a refusal to carry insurance which provides coverage for contraceptives and sterilization an imposition on employees by their Catholic employers?

First, let's look at the situation squarely on.  The White House website page, "Health Reform, Preventive Services, and Religious Institutions," attempts to spin the guidelines to make them appear broader than they are: "Churches and other houses of worship will be exempt from the requirement to offer insurance that covers contraception."  However, the Church also runs hospitals, schools, homeless shelters and other non-profit services for the benefit of the disadvantaged without any religious qualification.  (That means you can be an atheist and still receive treatment at a Catholic hospital.)  The Church was running these services long before the Fed got into the social safety net game.  Moreover, there are plenty of for-profit businesses run by faithful Catholics who object to funding contraception and sterilization even indirectly.   In short, the rule attempts to establish an idea of "religion" as something that happens only once a week at church and tries to confine it there, making churches, temples, synagogues and mosques into little more than catacombs built to code.

"Consistent with most States that have such exemptions, as described below, the amended regulations specify that, for purposes of this policy, a religious employer is one that:
"(1) has the inculcation of religious values as its purpose [e.g., hospitals don't count];
"(2) primarily employs persons who share its religious tenets [e.g., schools and universities don't count];
"(3) primarily serves persons who share its religious tenets [pretty much leaves everything out except churches and parochial schools]; and
"(4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries,and conventions or associations of churches, as well as to the exclusively religious activities of any religious order [sorry, Catholic for-profit business owners, your conscience doesn't count]. The definition of religious employer, as set forth in the amended regulations, is based on existing definitions used by most States that exempt certain religious employers from having to comply with State law requirements to cover contraceptive services [actually, it's based on California's definitions, the most restrictive set — not surprising, since they were drafted by the ACLU]."
 Under PPACA, if your organization doesn't fit within these narrow guidelines, your employee health plan must carry coverage for contraceptives and sterilization; otherwise you pay an "assessment" (= penalty) of $2,000 per employee.  If you, Joe/Joanna Schmuckatelli, don't wish to participate in your employer's health plan, then under the individual mandate you must either buy a plan or face an "assessment" ranging from $95 to $695.  Here's the catch: "Because HRSA’s discretion to establish an exemption applies only to group health plans sponsored by certain religious employers and group health insurance offered in connection with such plans, health insurance issuers in the individual health insurance market would not be covered under any such exemption."  Your conscience or need for such services doesn't count.

  • "No individual health care provider will be forced to prescribe contraception.  No individual will be forced to buy or use contraception."  Which misses the point; in fact, they serve to illustrate one practical argument against the mandate: Neither contraception nor sterilization (vasectomy or tubule ligation) are medically necessary. Pregnancy is not a disease which requires treatment.  Since contraceptives and sterilizations are no more medically necessary than is a boob job or a "gender reassignment" procedure, the State has no valid claim to force the unwilling to subsidize others' use of them.  Also, besides the commonly-known health risks of estrogen/progestogen-based contraceptives such as "the Pill", Yaz and NuvaRing, the drug itself has been shown by several studies to be connected with breast cancer and has been listed by the IARC as a class 1 carcinogen.  Not only should they not be subsidized, they should not be prescibed.
  • "Drugs that cause abortion are not covered by this policy."  False. Most contraceptive methods, especially those based on an estrogen-progestogen drug regimen, have abortifacient properties; when fertilization isn't prevented, the newly-conceived fetus often can't implant in the uterine wall due to the effects of the drug.
  • "Over half of Americans already live in the 28 States that require insurance companies cover contraception."  Of those states, all but seven have religious exemptions for either the employer or insurer or both; the HHS' exemption is modeled on California's, which was drafted by the ACLU.  In two of the cases, Michigan and Montana, the insurance requirement isn't by law but by administrative ruling or attorney general's opinion; Michigan has religious exemptions.  The argument seems to be, "Well, it wasn't a problem on the state level, so why should it be a problem on the federal level?"  To which I respond, "Who says it's not a problem on the state level?"  Most likely, when SCOTUS rules on the HHS mandate, its ruling will affect the state laws as well.
  • "Contraception coverage reduces costs."  This is a highly misleading argument, as it presumes that the women who get pregnant don't use contraceptives.  In fact, a Guttmacher Institute study admitted that about 54% of women who have abortions were using contraceptives at the time; of the others, only 8% had never used birth control.  You can still get pregnant while you're on "the Pill"; the more frequently you have sex, the more likely you will get pregnant while on "the Pill".
  • "Contraception is used by most women."  This is true, although only 77% of Catholic women are currently using birth control (the 98% quoted by the website is "ever used", not "currently using", and so is misleading).  It doesn't follow, however, that because so many women do use contraceptives they ought to have their contraceptives subsidized by others.  In fact, so many women use contraceptives because they're within the price range of most women, even the poor ($30-$50/mo.).
The last point is especially ironic.  The Obama Administration is the inheritor of a leftist ideology that has scrambled and struggled to "find" Constitutional rights to protect "discrete minorities", has posed as the salvation and bulwark of First Amendment rights, and has even protested against "the tyranny of the majority".  Now all of a sudden, when a religious minority group protests that their First Amendment rights are being trampled on, the leftists are all about majorities!

The "neutral applicability" argument rooted in Oregon v. Smith (1990) didn't work for the Administration in Hosanna-Tabor v. EEOC (2012);  I doubt it will work here, because Oregon didn't establish a general right of the State to use its coercive power to force individuals to act against their religious beliefs.  And the "you get Caesar's money, you follow Caesar's rules" argument favored by Joan Vennochi of the Boston Globe ignores the fact that the rules apply whether or not the institution receives Federal funds.

In sum, the HHS mandate tramples on the rights of obedient, faithful Catholics in order to appeal to a segment of Obama's electoral base, particularly feminists and pro-aborts who view pregnancy as enslavement or as a kind of unpleasant "occasional side-effect" of sex rather than its natural and biologically-intended consequent.  Not only has it offended Catholic conservatives, it's also alienated a portion of the Catholic "swing vote" and caused other non-Catholic religious leaders to protest.  It was a bad decision, and the sooner the Obamination realizes it the better.

Update: Same day, 8:37 am CST
Joe Heschmeyer at Shameless Popery directs our attention to a Hell's Bible editorial which includes the following paragraphs:

Even in his victory speech Tuesday night, Mr. Romney hinted darkly at the tone of the campaign to come. He accused President Obama of ordering “religious organizations to violate their conscience” and vowed to defend religious liberty.
It was a reference to the Obama administration’s requirement that large religious institutions, like hospitals and universities, provide insurance coverage for birth control. He was promising to defend the Roman Catholic Church’s “religious liberty” to deprive its tens of thousands of employees and university students of their own liberty [bold type Joe's].

And WSJ's James Taranto's reply:

Those scare quotes around religious liberty constitute the most shocking act of punctuation since the early days of what Reuters deemed “the ‘war on terror.’” The New York Times editorial board — and, to judge by his actions, the current president of the United States — has as little respect for religious liberty as this column has for Keynesian “stimulus.”
 All this illustrates a point I should have made earlier:  The argument that refusal to provide insurance coverage for contraceptives constitutes a "deprivation of liberty" is positively Orwellian in its twisted logic.  When did your right to practice contraception — a right written nowhere in the real Constitution — become my obligation to pay for it?  And given, as I said above, that most women can afford contraceptives out of their disposable income, how does it follow that if it's not available as part of employee benefits women won't use them?  The argument is ridiculous on the face of it; yet some liberals keep repeating the "imposition of religion" argument as though reiteration will make it less absurd and outrageous.

But Taranto is right:  Putting scare quotes around religious liberty is treating it as an outré, almost unheard-of concept that has no place in civilized dialogue or political discussion.  "'Religious liberty', my eye! What egregious nonsense!"  Is the New York Times' readership composed solely of the "freedom from religion" crowd?  Have we really come to such a bad pass that a presumably educated American could write of religious liberty as though it were some subversive foreign construct?

On a former blog in another life, I once wrote, "If enough Americans decided that freedom of speech had had its day and passed an amendment striking it out of the Bill of Rights, the Supreme Court could do nothing about it: a Constitutional amendment is by definition constitutional."  We're not there yet with the "free exercise" clause, but the NYT's shallow dismissal of religious liberty is a disturbing pointer to a dystopian future.