mykeystrokes.com

"Do or Do not. There is no try."

“The High Court’s Highhandedness”: Rulings Are Based Less In Law Than In The Personal Beliefs Of The Men On The Tribunal

It is a case of Supreme hypocrisy.

The adjective refers to that nine-person tribunal at the top of the American legal system, the noun to its latest act of judicial malpractice. Meaning not the notorious Hobby Lobby decision handed down at the end of June, but a less-noticed ruling a few days later.

We have to revisit the former to provide context for the latter. On June 30, the court ruled that a “closely held” corporation may deny employees health insurance covering any contraceptive method that conflicts with the company’s religious beliefs. Writing for the majority, Justice Samuel Alito faulted the government for failing, under the Affordable Care Act, to choose the “least restrictive” means of ensuring women access to all FDA-approved methods of birth control. He pointed out that the ACA already makes an exemption for nonprofit groups with religious objections; simply fill out a form certifying those objections and they are relieved from having to provide the disputed contraceptives.

Alito saw this as a win-win. Employees get the birth control they want — they pay directly to the insurance company — but the government does not “impinge” on the organization’s religious beliefs.

Three days later, the court issued an injunction freeing a Christian school — Wheaton College in Illinois — from having to fill out the certification form. The school had argued that simply doing the paperwork — the form asks only for name, contact information, signature and date — infringed upon its religious liberty because it would trigger the employee’s ability to get the disputed contraception. So the same form that the court held to be a reasonable compromise on Monday was judged an unreasonable burden on Thursday. Or as Justice Sonia Sotomayor put it in a withering dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Indeed, the malleability of the court’s logic suggests these rulings are based less in law than in the personal beliefs of the men on the tribunal. One gets the sense they chose the desired result first, then backfilled whatever “reasoning” would get them there.

Which is not just Supreme hypocrisy, but also Supreme faithlessness. And, yes, Supreme sexism.

I once saw a protest sign to the effect that if men gave birth, contraception would be bacon flavored and dispensed from vending machines. Can anyone argue the truth in that? Would we even be having this debate if some company had a religious objection to Viagra — or vasectomies?

And how far down the line must a company’s religious scruples be honored anyway? If it is too much to ask Wheaton College to fill out a form because an employee will be “triggered” to buy contraception on her own, does the school also have a right to scrutinize and approve other purchases made with the salary she earns from them? If she buys whiskey or pornography with “their” money, does the school have a right to object?

Not to mention the frightening precedent the court is setting in the name of religious liberty. It makes faith a potential get-out-of-jail-free card, exempting the holder from any law he finds onerous. Given that Mormons once embraced a theology of racism and evangelical Christians still deny basic freedoms to gay people, the danger of this is obvious.

In its rush to confer personhood on organizations and constrain women’s choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure you didn’t offend the owner’s religious sensibilities. It’s hard to imagine what that world would be like.

Pretty soon, we may not have to.

 

BY: Leonard Pitts, Jr., Syndicated Columnist, The Miami Herald; Published in The Seattle Times, July 13, 2014

July 14, 2014 Posted by | Contraception, Hobby Lobby, Supreme Court | , , , , , , | Leave a comment

“The Default Setting”: Why Your Employer Can’t Cut Off Your Contraception Coverage

On the Fourth of July, while you were stuffing your face with patriotic burgers and watching patriotic fireworks, the Supreme Court handed down an emergency injunction in a case involving Wheaton College’s objection to the Affordable Care Act’s contraception benefit, a decision that acted as an addendum to the Hobby Lobby decision. As I ranted over here, this is the decision that could really open the floodgates to thousands of claims from all kinds of organizations and companies that don’t want to let their employees get contraception. But after thinking and reading about it for a while, there’s something I think everyone seems to be missing, and it could mean that no one is actually going to lose their coverage, even temporarily.

I should say that it’s entirely possible that I’m completely wrong about this, and there’s some bureaucratic detail deep within the ACA that I’ve overlooked. But the first thing to remember is that the ACA requires that insurance plans cover a variety of kinds of preventive care, including contraception; this issue is about what exactly a company or organization has to do when they have an objection to contraception coverage. The Obama administration constructed an alternative arrangement, which until now was supposed to be used only for religiously affiliated non-profits but, after the Hobby Lobby decision, may have to be used for basically anyone, including for-profit companies. The way it works is that if your group doesn’t want to be tainted by the sin of contraception, there’s a form you file with the government stating your objection. You send a copy to your insurer or third-party administrator (TPA), and the insurer/TPA (I’m just going to say insurer from this point on) arranges for the coverage with the government, by getting reimbursed out of other funds.

The problem is that Wheaton College, along with dozens of other organizations that have filed suit, believes that just filling out this form and sending it to their insurer makes them complicit in sin, because doing so triggers the arrangement under which their employees will get coverage. Let’s leave aside the merit of this belief, but by granting the emergency injunction the Court’s majority essentially accepted that filling out the form and sending a copy to their insurer was indeed a burden on Wheaton’s religious freedom. This made Sonia Sotomayor absolutely livid, since just four days before the Court had used the existence of that very form as proof that there was a less restrictive alternative than the contraception mandate available.

So what Wheaton would prefer is that they not fill out the form and send it to the insurer. Instead, they want to send a letter to the government just stating their objection—a letter which wouldn’t have to inform the government of who their insurer is. In her dissent, Sotomayor warned that this could become a bureaucratic nightmare, because now the government has to figure out who the insurer is for every company that sends a letter, so they can get in touch with the insurer and arrange the alternate payment procedure for contraceptive coverage.

And this is where I’m puzzled. Because under the ACA, ordinary insurance coverage has to provide prescription contraception with no cost-sharing (meaning without copayment or deductable). That’s the default setting. So let’s say I’ve started a new non-profit aimed at educating America’s youth about the important cultural contributions of 1980s hair metal bands. I get health insurance for my employees, and because of the requirement in the ACA, it includes coverage for contraception. Then after spending an extended period listening to Stryper, I realize that contraception is sinful and try to deprive my employees of it.

Depending on the outcome of these cases, I may have a couple of options. I can file the original form with the government and send a copy to my insurer, in which case those two will arrange for my employees’ contraception coverage to continue. If I object to the form, as Wheaton College does, I’ll just send a letter to the government saying “I’ll have none of this!”

But since I don’t want to inform my insurer and thus trigger the alternate arrangement, my insurer has no idea that I object to contraception coverage. That means they’ll continue to provide it to my employees, as the law requires. If because of ordinary bureaucratic slowness it takes the government a while to find my insurer and inform them of my objection, my employees will still have contraception coverage in the meantime. Whether I’m active or passive the coverage continues, either because the alternate arrangement has been triggered, or because the insurer keeps doing what they’ve been doing because they don’t know of my objection.

To repeat, there may be something I’m missing here. But it seems that even if the Hobby Lobby and Wheaton cases impose more bureaucracy and make things more cumbersome for the government and insurers, as long as contraception coverage without cost-sharing is the default setting for insurance plans, people won’t actually have their coverage interrupted, no matter what the preferences of their employer.

 

By: Paul Waldman, Contributing Editor, The American Prospect, July 7, 2014

July 8, 2014 Posted by | Affordable Care Act, Contraception, Health Insurance | , , , , , | Leave a comment

“The Supreme Court Opens The Floodgates”: Hobby Lobby Ruling Is Infinitely Flexible, Based On Your Religion — Provided It’s The Right Religion

It didn’t take long for the conservatives on the Supreme Court to show that their decision in the Hobby Lobby case goes farther than Justice Alito professed when he wrote it — just as the liberal dissenters charged. Yesterday the Court granted an “emergency” injunction to Wheaton College, a Christian college in Illinois, so that the college wouldn’t have to endure the burden of filling out a form certifying their objections to contraception. The move sparked a blistering dissent from the Court’s three female justices, in which they wrote, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

On its surface, this case appears to be a rather dull dispute about paperwork. But it actually gets to a much more fundamental question about what kinds of demands for special privileges people and organizations can make of the government on the basis of their religious beliefs.

One of the central points Alito made in the Hobby Lobby decision was that the company could be exempted from the law’s requirement that insurance plans cover contraception because there was a less restrictive means for the government to achieve its goal. This less restrictive means, he said, was the procedure the government had set up for religious non-profits: the group signs a form stating its objection and gives a copy to the government and to its third-party insurance administrator, which will then arrange for people to get contraception without the non-profit’s involvement or money. The fact that this procedure exists is what Justice Alito himself cited in the Hobby Lobby decision as proof that there was a less restrictive means for the government to accomplish its goal of guaranteeing preventive care, and for Hobby Lobby to keep clear of any involvement in contraception.

Yet in yesterday’s order, the conservative justices said this procedure — signing a form — is itself an unacceptable “burden” on Wheaton College’s religious freedom.

We don’t have to get into the administrative nightmare this could cause. (The dissent describes it well.) But the point is that there is seemingly no length this Court says the government shouldn’t go to accommodate this particular religious belief. A company or a university doesn’t want to follow the law? Well, we have to respect that — they can just sign a form stating their objection. Oh, they don’t want to sign the form? Well never mind, they don’t have to do that either.

When the Hobby Lobby decision came down on Monday, liberals warned that it was going to open the floodgates to all kinds of claims in which people would say that their “sincerely held” religious beliefs should excuse them from following the law. “My religion tells me I shouldn’t serve black people in my restaurant.” “My religion tells me not to pay sales taxes.” “My religion tells me that I should operate a brothel on my suburban cul de sac.”

But Alito wrote that that wouldn’t be a problem because in those kinds of cases the government was already employing the least restrictive means available to accomplish its legitimate goals, whether it’s stopping discrimination or collecting taxes or preventing prostitution. What the Wheaton College injunction shows, however, is that it matters very much who’s claiming that the law doesn’t apply to them. As much as the Court’s majority might want to believe their rulings are based in abstract principles that would apply to anyone, if you think they’d be working so hard to accommodate the claims for privilege of Muslims or Hindus or members of religious groups that the five conservatives on the Court do not have such an affinity for, you’re fooling yourself.

For some time now, conservatives have been claiming there’s a “war on religion” in America, but what they really want is special privileges, not for religion in general but for certain religions. They want government meetings to start with their prayers, they want their scriptures pinned on the walls of courthouses, they want everyone to celebrate their holidays and when they find the law displeasing — whether it’s a law about health care or discrimination or anything else — they want an exemption carved out just for them.

As important as the Hobby Lobby case is, it may be the seemingly small Wheaton College injunction that has the real effects. That’s because it’s a clear signal to everyone that the Hobby Lobby decision is infinitely flexible. As long as you liked the ruling, you don’t have to worry about whether the Court’s reasoning actually applies to your situation, because the Court doesn’t care. Go ahead and say the law doesn’t apply to you. As long as you say it’s because of your religion — provided it’s the right religion, and a belief like an abhorrence of contraception that the Court’s conservative majority shares — you’ll probably get away with it. And make no mistake: There are going to be a huge number of organizations, businesses, and individuals — probably thousands — that are going to try.

 

By: Paul Waldman, The Plum Line, The Washington Post, July 4, 2014

July 6, 2014 Posted by | Contraception, Hobby Lobby, Religious Beliefs, SCOTUS | , , , , , | Leave a comment

“Hobby Lobby Decision Is Not About Religious Freedom”: One More Battleground In The Never-Ending Culture War

Why are we still arguing over contraception?

Of all the mind-blowing medical advances of the last 50 years — in-utero surgery, genetic testing, face transplants — why is it that the sale and use of convenient, reliable birth control pills and devices still sparks such controversy?

The Supreme Court’s Hobby Lobby decision — in which the court’s conservative wing gave religious rights to corporations — is just one more battleground in the never-ending culture war. The high court ruled that the Affordable Care Act violates the religious rights of two family-held corporations whose owners objected to a requirement that they provide employees with health insurance policies that pay for a variety of contraceptives. Hobby Lobby, a crafts chain owned by Southern Baptists, and Conestoga Wood, owned by Mennonites, objected to four contraceptives that they mistakenly consider abortifacients.

If abortion were the animating issue, then liberals, conservatives and moderates would have joined forces long ago to promote more effective family planning. That would be the best way to limit abortions, which are usually the result of unintended pregnancies. Instead, the religious right continues to stand in the way of birth control.

The high court’s ruling, issued last week, hardly seems calamitous since it was limited to those four family planning methods. But the decision, by five male justices, still points to a curious sexism that pervades much of the political discussion around contraception. It’s no wonder that conservatives are accused of waging a “war on women.”

As Justice Ruth Bader Ginsburg noted in her dissent, “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” In other words, the remarkable cultural transformation that has allowed women to assume leadership roles in corporations, in the military and in politics was assisted by the revolution in reliable contraception, starting with the introduction of “the pill” in 1960.

History reminds us, though, that family planning has long been political. In 1879, the state of Connecticut passed a law prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” Remarkably, the Supreme Court didn’t strike down that intrusive law until 1965, nearly a hundred years later.

In the decades since, women — and men — have largely taken for granted the right to convenient and reliable birth control. That’s true even among Roman Catholics, although papal doctrine still forbids it. According to the Pew Research Center, only 15 percent of Catholics view contraceptive use as “morally wrong.”

Yet, the backlash among ultraconservatives has become more evident in recent years, especially since the mandate on contraception coverage in Obamacare. In 2012, a young Georgetown law student named Sandra Fluke incited the ire of conservatives when she insisted that her university should offer contraceptives in its health insurance policies, despite its church affiliation. Among the more memorable comments that have been directed her way, Rush Limbaugh labeled her a “slut” and a “prostitute.”

Several months ago, former Arkansas governor Mike Huckabee, a Fox News commentator still popular on the ultraconservative lecture circuit, was explicitly sexist as he blasted Democrats’ support for contraceptive coverage in the ACA, claiming they want women to think “they are helpless without Uncle Sugar coming in and providing for them a prescription each month for birth control because they cannot control their libido …”

Indeed, Republican politicians and their allies have showered invective on women who believe that health insurance plans should pay for a full range of reproductive services, including birth control devices and medications. Their rhetoric is full of offensive references to women’s sexuality, which tells you all you need to know about where they’re coming from.

Of course, Justice Samuel Alito, writing for the majority, was much more circumspect in his language. Still, the majority’s outdated ideology shines through — partly because they made clear that their reasoning applies only to contraceptives and not to other medical care. There is no religious exemption for, say, a company owned by Jehovah’s Witnesses that doesn’t want its health insurance policies to pay for blood transfusions.

This ruling had little to do with religious liberty and much to do with women’s reproductive freedom.

 

By: Cynthia Tucker, Visiting Professor at The University of Georgia; The National Memo, July 5, 2014

July 5, 2014 Posted by | Contraception, Hobby Lobby, Reproductive Rights | , , , , , , | Leave a comment

“Battleground 2014”: Better Not Gloat Too Much Over Hobby Lobby, Republicans

At TNR John Judis reminds us that the last time Republicans embraced a Supreme Court decision restricting reproductive rights, it bit ’em in the butt:

In July 1989, the court handed down Webster v. Reproductive Health Services upholding Missouri’s right to restrict the use of state funds and employees in performing, funding, or even counseling on abortions. It was the first court decision restricting the rights bestowed under Roe v. Wade.

The nation, of course, was divided on the issue of abortion. How the issue played politically depended on which side of the debate saw itself under attack, and in this case the Webster decision mobilized pro-choice supporters. The right to abortion became a hot issue in the 1990 elections, and in the final results, abortion-rights supporters came out ahead. There were several telltale races. In Florida, Democrat Lawton Chiles defeated incumbent Republican Governor Bob Martinez, who, in the wake of Webster, had championed restrictive laws for Florida.

In the Texas governor’s race, Democrat Ann Richards defeated Republican incumbent Clayton Williams. According to polls, Richards, who made opposition to Webster a centerpiece of her campaign, garnered over 60 percent of the women’s vote, including 25 percent of Republican women. In the final tally, abortion-rights supporters, running against or replacing anti-abortion candidates, secured a net gain of eight seats in the House of Representatives, two Senate seats, and four statehouses.

What was also striking was the overall size of the gender gap. According to the National Election Studies survey, there was no gender gap between male and female supporters of Democratic congressional candidates in 1988. In 1990, gender gap was ten percentage points—the highest ever. All in all, 69 percent of women voters backed Democratic congressional candidates that year. Of course, there were other issues than Webster that were moving votes, but there is no doubt that the court ruling played an important role that year.

Now it’s true Webster turned on state abortion retrictions and thus was directly relevant to state election battles. But on the other hand, Hobby Lobby involves the elevation of corporate rights over reproductive rights, which is not exactly alien to the political battleground of 2014.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, Jul7 2, 2014

July 3, 2014 Posted by | Contraception, GOP, Hobby Lobby | , , , , , | Leave a comment

%d bloggers like this: