Religious Freedom and the Affordable Care Act

The problem is, you fail to understand the mentality of so-called "progressives" - and the "social gospel" they believe in. A big part of that is their belief - to quote Obama:

So, unless they "save" all of us, they don't get "saved".

So, those who reject their social gospel must be convinced to reconsider their decision, by whatever means necessary. So whether it is requiring Catholic institutions to cover contraception/abortifacient drugs, pushing the redistribution of wealth, or even forcing religious individuals who object to other items that ft into the "progressive social gospel" to fall in line.

As for disagreeing with them, well, they just are not tolerant of any real disagreement. You are either a bigot, a fool, or invested in the current power structure.

In a sense it is really a religious war - the Church of the Progressive Social Gospel vs. traditional Christianity or other religions that believe in individual salvation as opposed to collective salvation.

Catholics are known for "no abortions or contraception", but the Church also doesn't believe in the death penalty, eugenics (beyond incest taboos and voluntary celibacy, of course), euthanasia, or invasions. Therefore, to tax a Catholic while practicing the death penalty or invading other countries would be, by your logic, unconstitutional.

Kimball: Great idea! We should just get rid of the mandate and abolish all private health insurance plans! Glad you agree with me!

Mr. 44, should citizens whose religion opposes the penalty of death (ie Catholics) be forced to pay state taxes that are used towards capital punishment?

Yeah, OWM, I don't think you understand the argument at all. Taxes are a part of society, which fund government. The government, for the people, by the people, etc...will sometimes do something an individual may either agree or disagree with as part of the larger whole. KK has hit the major point, but basically, taxes are like a general fund to be dispersed out to run government. (I realize there are more layers here.)

I don't think this is remotely the same idea as paying taxes. We're not talking about the administration proposing to raise the taxes of everyone and then using some of the revenue to fund a birth control program. That would be a transparent part of the government process, where either side gets an input in the vote, as well as an up/down vote in Congress. This example revolves around the fact that the administration agreed to a religious exemption during the public debate part in order to get the reform passed, and then by what amounts to executive order, simply nullified the same exemption. This is a private business decision which applies to employees of a private instituion, ordered by the government, where the government has a marginal interest at best. I think it also explains why it's difficult for us to come up with comparative examples. The problem with political issue driven decisions like this is that the pendulum can swing the other way too easily.

In a nutshell, my viewpoint is what I've already posted. If you want free birth control as part of a employee benefit package, don't take a job with a Catholic institution. But this is not unique to the Catholic church. It's the reality of any job, which all have different benefits, internal business philosophies and such. The fact that birth control is a major tenet within the church shouldn't be discarded so easily, but again, this applies to any institution. My other point is that while many people say this is about eliminating access to birth control, I don't see how this impacts availability of contraceptives in any way. For your part, you haven't answered why you think that not getting free birth control under an insurance benefit is akin to having the availability of it completely removed.

Actually, I think it's pretty much the same thing as a tax. Any payment mandated by the federal government is a kind of tax. Further, Mr. 44, KK, this is not a case where the government is requiring that the Catholic Church take money out of their pocket that goes directly into the pocket of a birth control providing company. Instead, like a tax, this is the government requiring a corporate entity controlled by the Catholic Church hierachy to provide for a health insurance plan that also covers birth control. They are paying for the insurance. The Catholic Church may not actually ever even indirectly contribute a dime to birth control if no one on the plan asks for it.

My thought is that this particular regulation is ill conceived, I don't think it's necessarily the time to be fighting this political fight. KK, I agree that if something like the Hawaii plan satisfied the Catholic Church, it would be fine, but I don't believe the Constitution prohibits the government from such a regulation.

Again, this to me comes down to substantial burden. The Catholic Church may not like the fact that it has to provide a health care plan that includes birth control, but they may also not like that their employees use their paychecks to buy birth control or to eat meat on Fridays or to give their money to a non-Catholic religious institution.

Health insurance is part of the compensation package for an employee. How is it the Church's business what the employee decides to spend his compensation on? They Church is providing INSURANCE, not birth control.

I submit to you that this is not a substantial burden on anyone's free exercise of religion, it is merely a burden on the Church's ability to prohibit it's employees from doing something it does not condone.

This is the article that quote came from, and it discuss how 28 States already require insurance companies to provide birth control. This suggests that the Catholic Church's corporate entities have been paying for such coverage for years, yet there does not appear to be any demonstrable "substantial" burden.

This is a political attack, nothing more. One invited by Obama, for sure, but this is about politics, not religious freedom.

When did I ever say that? I don't think that at all.

I'm Lutheran, we've been fighting the Catholics for almost 500 years. And I agree with you, although I wouldn't pinpoint Catholics specifically as much as I would all conservative Christians.

And yes, widely available birth control does reduce the abortion rate, which is why I really don't understand conservative objections to ensuring that birth control is as widely available and cheap as possible.

As far as the BCP, I last took it almost 10 years ago, and at that time, it was about $20 a month--with my insurance paying for part of it. I don't know what it costs without insurance.

I agree with this.

OWM

Health insurance is part of the compensation package for an employee. How is it the Church's business what the employee decides to spend his compensation on? They Church is providing INSURANCE, not birth control.

I think you are splitting hairs here. They are being required to provide insurance that provides birth control.

The Catholic Church may not like the fact that it has to provide a health care plan that includes birth control, but they may also not like that their employees use their paychecks to buy birth control or to eat meat on Fridays or to give their money to a non-Catholic religious institution.

Aside from my opinion that birth control/contraceptives shouldn?t be a requirement anyway, there is a distinct difference between a company telling an employee what he/she can do with their paycheck and the government requiring a company to provide something.

I don't think these issues have to be an all or nothing thing. IMO there should be a few broad rules for being able to conduct a business in our country. Certain labor laws, safety laws, etc. No discrimination. I don't think one should be able to own a business and say "no black people" or "no gay people" as customers or employees. But not much else. Forcing a company to provide a benefit, especially a specific benefit, is going too far.

I don?t see how it is unreasonable for a religious objection to this. I again agree with KK?s compromise. I think to demand that a company provide as one of it?s benefits something that goes against that company?s values is wrong.

Death Star, no one is forcing the Catholic Church to provide birth control. They are requiring a corporate entity run by the church to provide insurance.

How is it any different than requiring a tax on a Catholic person that goes to fund to find the death penalty? Or allowing an employee of a catholic corporation to buy birth control? Here, there is not even certainty the birth control will be purchased. It is an indirect payment either way.

So in all three situations, money from the corporation controlled by the church goes to a third party entity. THAT entity spends the money and gives it to the provider of the service the Church condemns.

I agree with Shinjo's sentiment. I don't think this was a smart political move on Obama's part, and a compromise is in his best political interests. Still, I don't see why this is something the Church will suddenly make a big issue out of. Plus, it appears that the Church has been "forced to buy birth control" in 28 states already, so what is the big deal?

ow is it any different than requiring a tax on a Catholic person that goes to fund to find the death penalty? Or allowing an employee of a catholic corporation to buy birth control? Here, there is not even certainty the birth control will be purchased. It is an indirect payment either way.

For me, I would just about completely disagree with your comparison that paying taxes is the same as providing a specific service. The $1.40 I might pay in taxes when I buy a hardcover book is not at all similar to being told that I have to perform a specific action. Some taxes, fees, etc..are targeted, and you may have a point with these, but you simply can't draw a comparison between "a Catholic who may pay income tax, but Zoinks! some states have the death penalty," and what amounts to a specific action. Personally, I still think you're combining all sorts of issues in order to see what will stick. You're correct, the church itself isn't telling any employee that they can't go out and buy birth control on their own, the church is simply saying that they don't want to be ordered to provide a benefit that conflicts with their beliefs. It's a big difference there, but which is very important.

What if we picked any stereotypical conservative issue? Would you be fine with a "right leaning" President who decreed, that in order to uphold the 2nd Amendment, no company conducting business in the US could prevent any employee from carrying a handgun in the workplace? Or do you think that it's the private company's right to enact "gun free" zones? Maybe that's not a good example for various reasons...I don't know. I can't think of recent examples where a President decreed that private companies have to provide a specific benefit to its employees, so this is kind of uncharted waters. Maybe a better example would be to say that all companies would have to give employees time off when deer hunting season starts? Don't you think that PETA would object to being forced to give all of its employees paid time off to go hunt animals? I'm sure PETA gives its employees vacation time. But it's a totally different idea to give employees time off and then allow them to do what they want with it, than it is to give stated days off to specifically go hunting.

I think "the big deal," as you asked, is the broad consequences that apply here as a whole, not just the issue of birth control.Because the point is not if birth control is "good" or "bad." The point revolves around compelling a specific institution to provide a specific employee benefit, especially if it conflicts with the beliefs of the institution.

No. A tax is a payment that a government requires someone pay to the government. A payment the government requires to a private entity is not a tax.

A support for this can be found directly in the Constitution, where Congress is given the authority to "lay and collect taxes". A tax is specifically collected by the government, not by private individuals or organizations (except when they do so under contract with the government, such as in debt collection situations).

As a lawyer, you should know that "pretty much the same thing" isn't exactly a strong constitutional argument. For example, a national drinking age established by Congress and identical drinking ages established by all 50 states are "pretty much the same thing", except that the former is unconstitutional while the latter is not. The devil is always in the details.

There is a difference there. Once the employee has deposited their paycheck, it's not the employer's money. The employer has no say in how it is used at all. However, in the case of insurance, it's very different. The employer offers specific insurance plans that it has decided to offer, and it is paying the insurance companies directly (in whole or in part). That means that they retain control over what they will or will not offer.

Remember, there is no law requiring the Catholic Church to offer its employees any health insurance. Many jobs don't. Which is better, that the employees get offered insurance through their employment, but might have to purchase birth control separately (either directly or a separate policy covering just birth control) on their own, or they have to go out an buy their own insurance completely on their own?

Except how is the Church prohibiting anyone from doing anything? If I refuse to give you a ham sandwich, that doesn't mean that I am prohibiting you from eating lunch. I'm just refusing to provide it to you. You are still free to go and buy or make your own sandwich (of whatever kind).

Check again. Of those 28 states, only 3 have a restriction even remotely as strict as the HHS one, and almost all of them provide religious exemptions or other compromises to accommodate religious objectors.

For example, Hawaii is among the 28 states mentioned, but they have a compromise solution that is respectful of religious objectors. It's disingenuous to act like all 28 states are as restrictive as the HHS regulation.

You equated the Catholic Church not providing contraceptive coverage with them prohibiting employees from using contraception. How is that not the

I agree with Kimball that a compromise can and should be struck, this entire issue really just highlights the stupidity of tying health insurance to specific employers.

I want to go back to something else that OWM said:

OWM, what exactly would you consider to be a "substantial burden" on free exercise of religion?

You keep saying that you don't see it as a substantial burden, but you haven't exactly defined what criteria you use to set up that threshold. You rejected the idea of looking to the religion's doctrines as basically giving a free pass to religions, but then how do you define a substantial burden?

Until you answer that, you have no business asking anyone else how something is a substantial burden. You can't just move the goalposts wherever you want to keep the other side from scoring.

Kimball Kinnison

Goalpost shifts have occurred on both sides of the debate, Kimball. "Religious protections" are so nebulous that it's very easy for a member of a belief set to claim that a particular practice constitutes a substantial burden. Frankly, I'm on the side of whatever policy will improve healthcare access and outcomes as this is a public health issue. I could care less about religious protections, but I do acknowledge that others feel they are quite important, so I am entirely willing to factor those viewpoints into the overall consideration, and public health still wins. This isn't to denigrate religious freedom, but it is only one concern among many, and public health issues don't care about religious preference. So requiring Catholic institutions to provide more coverage for their employees (some of whom will partake of it and some will not) is fine by me.

I honestly don't see what is so nebulous about "religious protections" in this case. Is there anyone in this debate who wasn't aware of the long-standing Catholic position on birth control before all of this started? (If so, I would say that they weren't paying attention.) Catholic teachings on the issue are very well established, and long predate any of the public health concerns this regulation is meant to address.

It also boils down to a basic principle of constitutionality. Religious freedom is explicitly protected by the Constitution. Free contraceptives are not. In fact, a right to health insurance isn't protected by the Constitution. In a contest between explicit protections and non-explicit protections, the explicit ones should win out every time. That's part of the reason to make them explicit!

You might have a right to take contraceptives, but that doesn't mean that the government has the authority to force someone else to provide them to you over their sincere religious objections.

You might think that health care is more important than religious freedom, but the Constitution explicitly protects a right to one and not the other.

It's also especially ridiculous when you consider the very small portion of the population that would be affected by allowing a religious exemption compromise. What portion of the population works for religious-run organizations? Of them, how many want the contraceptive coverage? Of those people, how many would be unable to purchase the contraception on their own (or alternately buy the separate coverage in the Hawaii compromise)? You are talking about a fractional portion of a percent.

Moreover, pregnancy isn't a communicable disease, so the typical public health claims (such as in favor of vaccinations) don't apply. Additionally, the cheapest and arguably most common contraceptive (condoms) isn't even covered by the regulation!

Combining all of that shows that the net affect on public health of allowing religious exemptions would be negligible. The net effect on religious freedom would be damaging.

Kimball Kinnison

As long as employer-sponsored health programs are optional, I think the Catholic Church objection is valid.

I belong to a HMO I've belonged to almost since birth. At work I have opted out of the (fine) employer-plan AND my employer pays my HMO dues as long as they don't exceed the contribution to the employee-plan.

I don't "gain" anything except true portability of insurance which is one reason I've stayed with the HMO.

NYJ

this entire issue really just highlights the stupidity of tying health insurance to specific employers.

Agreed, one of the many reasons it is stupid.

OWM

How is it any different than requiring a tax on a Catholic person that goes to fund to find the death penalty? Or allowing an employee of a catholic corporation to buy birth control? Here, there is not even certainty the birth control will be purchased. It is an indirect payment either way.

KK answered this. I?d just add that IMO you are looking at this in reverse. The gov?t taxes business/people, then in turn uses that $$$ as appropriated by people representing citizens. Here, the gov?t is requiring a company to provide a specific benefit.

Mr44

What if we picked any stereotypical conservative issue? Would you be fine with a "right leaning" President who decreed, that in order to uphold the 2nd Amendment, no company conducting business in the US could prevent any employee from carrying a handgun in the workplace?

I don?t want to sidetrack, but didn?t a state pass a law where a company (certain types of companies are exempt) is required to allow an employee with a CWL be able to keep a gun in their car on the company lot? I disagree with that as well. If a company doesn?t want guns on it?s property, then so be it.

Maybe a better example would be to say that all companies would have to give employees time off when deer hunting season starts? Don't you think that PETA would object to being forced to give all of its employees paid time off to go hunt animals?

Actually, that would be awesome. For pure entertainment, it?s hard to beat angering PETA.

But generally speaking, I think people claiming a religious objection should be treated on a case by case basis, and on the merits of their argument.

Here, an organization has a long-standing religious objection to a certain item. They are not telling their employees that they can't have it nor are they interfering with their ability to obtain it on their own. It's not a life-threatening issue, nor (as KK pointed out) a communicable disease. Yet they are being required to provide it. That's not right.

There are several states that have passed such laws. The basic reasoning behind it is that while the parking lot might be their property, your car is your property (and in some states is seen as an extension of your home). As long as you keep the firearm within your car, they don't actually consider you to have taken your firearm onto their property.

Personally, I think that's a reasonable balance of property rights.

Kimball Kinnison

I don?t want to sidetrack, but didn?t a state pass a law where a company (certain types of companies are exempt) is required to allow an employee with a CWL be able to keep a gun in their car on the company lot? I disagree with that as well. If a company doesn?t want guns on it?s property, then so be it.

While KK beat me to it...Yes, that's why I specifically said "workplace," and not just locked up in the employees own car. I don't have a problem with it either. If a company doesn't want employees to carry private firearms within their property, it's their right to set the terms through a code of conduct, labor contract, handbook, whatever... But I wanted OWM to define the limits in relation to "I have no problem with a company being forced to do X..." in absolute terms. Half of this issue isn't even about birth control, but rather, the authority to even decree something like this. Because even with these examples, there are larger areas where we might disagree.

But generally speaking, I think people claiming a religious objection should be treated on a case by case basis, and on the merits of their argument. Here, an organization has a long-standing religious objection to a certain item. They are not telling their employees that they can't have it nor are they interfering with their ability to obtain it on their own. It's not a life-threatening issue, nor (as KK pointed out) a communicable disease. Yet they are being required to provide it. That's not right.

And taken with the above, I think we just outlined the other half, and are in agreement.

I only have a few seconds and have to finish an IRB critique, but I don't want you to think I'm abandoning this discussion.

The fact that one legal element is present doesn't constitute a valid de facto argument that it ought to be present (and I've already mentioned my objections to religious protections). We're in agreement that there is nothing in the Constitution that guarantees a right to health care (a point I emphasize in my lectures); the issue is what *ought* to be, which is why I phrased my argument as a value conflict. There's nothing about public health explicitly in the Constitution either, but I think we can both agree that it's an important principle, since a sick society is not as productive or self-sustaining as a healthy society.

Regarding the condom issue, my understanding is that all FDA-approved measures are covered without co-pay[/l

KK

There are several states that have passed such laws. The basic reasoning behind it is that while the parking lot might be their property, your car is your property (and in some states is seen as an extension of your home). As long as you keep the firearm within your car, they don't actually consider you to have taken your firearm onto their property.

Personally, I think that's a reasonable balance of property rights.

I don?t think a car is an extension of your home. I think a car is a car. My pants are my property, but I don?t think I have the right to carry a gun in my pants wherever I want to either.

In all seriousness, I think the company lot is the company?s property (emphasis on company), so it should be their call. In other words, I think if a company wants no guns on their property, then they shouldn?t be forced to allow them. If an individual has to have a gun in their car, then park on the street.

Mr44

Half of this issue isn't even about birth control, but rather, the authority to even decree something like this. Because even with these examples, there are larger areas where we might disagree.

Right. I think it is up to the gov?t, it is their burden, to show that there is a definitive need to force a company to do something. As I said earlier, a company shouldn?t be able to exploit child labor, nor should they be able to pollute the environment. They shouldn?t be able to discriminate. IMO these are fairly straightforward arguments that I can easily accept and agree with.

There is also no reasonable expectation to assume that a company would provide health insurance and that insurance must provide birth control/contraceptives. It's not like a Catholic University is in the birth control business. So forcing a company to provide a specific benefit requires a substantial burden of proof from the gov?t that it is necessary. So far, I haven?t seen it.

I would even say the company is the property of those who own the company. A bit circular, but in this day and age, the law labors under this delusion that corporations are people.

No, the issue is what the government is allowed to do, not what you think they ought to be allowed to do. If you don't like the Constitution's protections for religious beliefs, then the answer is to repeal the First Amendment, not to ignore it and substitute the whims of judges.

Just because something is an important principle doesn't mean that it's a federal issue. What is or is not a federal issue is a matter of what the Constitution allows.

STI rates would be irrelevant, as prescription contraceptives don't provide any protection against STIs. Condoms (which aren't covered by the new regulation) do provide protection. That makes your argument there a bit of a red herring.

Except that the official position is the critical one when you are talking about applying this regulation to organizations that hold to that position. Just because rank-and-file Catholics might disagree with that official position doesn't give the government the right nor the authority to override that official position and force Catholics who do agree with that official position (those who run the organizations) to violate their sincerely-held beliefs.

Kimball Kinnison

Wow, lots of activity! Two quick thoughts before I respond in depth later. There are two lines of discussion here, which I see, as follows:

1.) Is this policy legal?

2.) Is this good policy?


To answer the first question, I believe it is constitutional, but I haven't read the law in depth so it's just sort of my hunch. To answer the second question, I don't think it's worth the political capital. It's a distraction. I think a perfectly good solution could have been reached to avoid enraging the Catholic Church. So I think it's legal but it was executed in a sloppy way.

Correct me if I'm wrong, but the first amendment does not say, "Religious beliefs are sacrosanct and shall never be questioned." I know that point must kill you because religious protections are so obvious. Hey, speaking of religious protections how'd that polygamy deal work-out for Mormons? I know there was a 'revelation' (*wink wink*) but legally our government told you all to go get stuffed with regards to polygamy. So there is a precedent where society changes with or without the constitution changing.

This discussion is a fascinating read so far. The legal issues intrigue me. I have a few questions. The First Amendment reads as follows:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The religious belief that contraception is "sinful" is easy to wrap your head around. That's relatively black and white (whether you agree or disagree). The grey area is in the "free exercise thereof." With regard to being against contraception, how does "free exercise thereof" manifest itself? The clear answer is - don't use contraception. But that's an individual choice. The church can preach it, but at the end of the day a person goes home and makes their own decisions and lives with the consequences. As a group/corporation however, this doesn't translate in that capacity. The only thing you can do is not directly offer the option. And considering they don't "directly" offer the option (BCBS or United or your health care would) the legal waters muddy up a bit about whether free exercise of the religion is infringed upon.

So anyway, the questions I posit are as follows:

1. What exactly constitutes the "free exercise" of the religious belief that contraception is "sinful" at the group/corporation level?

2. If the use of contraception is deemed sinful, then how specifically does this law actually infringe upon your ability to exercise that belief?

I just have to interject here to point out your statement is untrue. PPACA contains an employer mandate provision for any employer with more than 50 employees.