Ron Paul Vs. Birth Control: So Much For The Right To Privacy
Last year, Republican presidential candidate Ron Paul introduced a bill in Congress that would allow states to ban contraception if they choose.
Paul’s “We the People Act,” which he introduced in 2004, 2005, 2009, and 2011, explicitly forbids federal courts and the Supreme Court of the United States from ruling on the constitutionality of a variety of state and local laws. That includes, among other things, “any claim based upon the right of privacy, including any such claim related to any issue of sexual practices, orientation, or reproduction.” The bill would let states write laws forbidding abortion, the use of contraceptives, or consensual gay sex, for example.
If passed, Paul’s bill could undermine the most important Supreme Court case dealing with contraception—1965’s Griswold v. Connecticut. In that case, the high court found that a Connecticut law prohibiting the use of contraception was unconstitutional based on a “right to marital privacy” afforded by the Bill of Rights. In other words, the court declared that states cannot interfere with what happens between the sheets when it comes to reproduction.
Paul’s bill would also keep the federal courts out of cases like Roe v. Wade and 2003’s Lawrence v. Texas, in which the justices found that privacy is a guaranteed right concerning sexual practices and struck down Texas’ anti-sodomy law as unconstitutional.
It’s well known that Paul, like the other remaining GOP presidential contenders, is no fan of abortion or gay people. But the issue of contraception access is one that has not received nearly as much attention.
Paul’s bill hasn’t received much support in the House. It has no cosponsors and has never made it to a vote on the House floor. But that’s not its biggest potential problem: “I don’t think it would be constitutional to strip the court of that power,” said Bebe Anderson, director of the US legal program as the Center for Reproductive Rights. “You certainly couldn’t do it by law—you’d have to amend the constitution to do that.”
Paul’s campaign did not respond to a request for a clarification on the intent of the his proposed law with regard to contraception. But as Addie Stan notes over at Alternet, Paul’s response to a question about the Griswold ruling during a January presidential debate provides hints about what he might say. “As far as selling contraceptives, the Interstate Commerce Clause protects this because the Interstate Commerce Clause was originally written not to impede trade between the states, but it was written to facilitate trade between the states,” Paul said. “So if it’s not illegal to import birth control pills from one state to the next, it would be legal to sell birth control pills in that state.”
Paul is saying, in short, that his bill wouldn’t actually ban the sale of contraceptives, which would be protected under the Commerce Clause of the Constitution. But that’s an extremely unorthodox interpretation of the Commerce Clause, according to several lawyers Mother Jones contacted. The clause typically only deals with whether or not Congress has the ability to regulate interstate business. Paul is correct that the Commerce Clause would prevent a state from banning the importation of birth control pills from another state. But absent a constitutional right to privacy, states could still bar their citizens from buying or selling birth control within the state. “The right to access contraception has not been based on the Commerce Clause in my understanding,” explains the Center for Reproductive Rights’ Anderson.
Among the other GOP candidates who have weighed in on Griswold, Rick Santorum has said he thinks the Supreme Court made the wrong decision. Mitt Romney, meanwhile, square danced (as usual) around the question at the same January debate, first asserting that he “would totally and completely oppose any effort to ban contraception” before waffling on the question of whether states should be able to enact their own bans. “I don’t know whether a state has a right to ban contraception,” he said. “No state wants to…and asking me whether they could do it or not is kind of a silly thing, I think.”
Romney is wrong to suggest no state would contemplate banning contraception. Mississippi considered a ballot measure last November that would likely have done just that. And if Paul has his way, no court would be able to strike down such a law.
By: Kate Sheppard, Mother Jones, February 14, 2012
“The Pharisees”: Bishops Go Off The Deep End
Just as I was publishing my post about Catholic tribalism on Friday, predicting that the brilliant White House “accommodation” on contraception wouldn’t mollify the U.S. Conference of Bishops, the bishops released a statement that made them seem, well, mollified, at least a little. The new Health and Human Services regulations were “a step in the right direction,” their statement read, and so I softened an assertion that the bishops would continue to wage war against the compromise.
I needn’t have soft-pedaled. Only a few hours later the bishops came out, guns blazing, insisting the only solution they would accept would be for “HHS to rescind the mandate for those objectionable services.” By any employer, for any employee in the entire country — a country where the vast majority of voters, and of Catholics, support Obama’s stand. And at Sunday Mass, bishops and parish priests throughout the nation read aloud the stunningly political letters about the controversy they already had planned. Now, with the bishops’ blessing, Republican are hard at work on legislation that would force HHS to strip the contraceptive coverage requirement for all employers, not just religious employers. Sen. Roy Blunt would allow employers to decline to cover any service they deem objectionable; Sen. Marco Rubio would restrict the legislation to contraception coverage.
I have a couple of reactions to the bishops’ extremism. First of all, as someone raised Catholic, I wonder why they’ve never read letters about any of their social justice priorities: universal healthcare, increased protection for the poor, labor rights, or action to curb climate change? Why does this topic – not even the morally challenging issue of abortion, but the universally accepted practice of birth control – merit such a thundering reaction from the pulpit?
Second, as an American, I also wonder: How do they continue to demand tax-exempt status when they’re railing in their churches about blatantly political – and divisively partisan – public concerns? As the first writer on my remarkably sane Catholic tribalism letters thread remarked, their public support for the extremist GOP position makes me think they should register as a Republican political action committee rather than remain a tax-exempt religious institution outside the bounds of politics.
Even as the bishops became more shrill and extreme, the debate over contraception coverage became smarter and calmer last week. Major Catholic organizations supported Obama’s Friday move, including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA. Before the president’s announcement, famed attorney David Boies did the most to usher in the new tone by framing the HHS rules as a matter of labor law. Boies doesn’t believe, by the way, that HHS is in any way required to provide the exemption for churches it wrote into its regulations even before the compromise. If the church is employing people, whether co-religionists or not, it has a responsibility to comply with employment law. He proved that even the administration’s initial regulations, exempting churches, was a strong attempt at accommodating anti-contraceptive religious groups.
But maybe the best argument on behalf of the Obama administration’s position comes from a very unlikely source, as Jay Bookman points out: Supreme Court Justice Antonin Scalia. In two different decisions, the conservative Catholic Scalia has sided with the court majority in finding that religious teachings can’t justify religious employers – or employees — failing to comply with labor law. In the 1990 Employment Division v. Smith decision, regarding an employer’s ability to fire a Native American employee who used peyote, despite the employee’s claim that using the drug was a religious rite, Scalia wrote:
“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 an even more directly relevant 1982 decision holding that Amish employers must comply with Social Security and withholding taxes, though their faith bars participation in government support programs, Scalia wrote:
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.
I’ve written repeatedly that my inability to quit the Catholic Church entirely comes from the fact that its social teachings formed my social conscience, and to this day some of the people doing the most good for the poor and the excluded are devout Catholics. But the bishops are impossible to defend. Today, they are working on behalf of the Republican Party. “They have become the Pharisees,” says Andrew Sullivan, a conservative practicing Catholic. “And we need Jesus.”
By: Joan Walsh, Editor at Large, Salon, February 13, 2012
Why The Catholic Contraception Controversy Is A Phony Battle
Public health and women’s autonomy collided with religion last week. Elders in the Catholic Church were incensed as the regulations implementing the federal healthcare law would have required institutions affiliated with the Church (but not the Church itself) to provide health plans covering contraception. The rules (part of the normal regulation-writing process that comes after a sweeping law is enacted) would not have forced the Church or its clergymen to hand out birth control; they only would have required Catholic-affiliated schools, hospitals, and universities to play by the rules everyone else has to follow, and provide for full healthcare coverage for women.
The Obama administration, under fire as the health issue turned into a political issue, offered a compromise: health insurance companies would have to provide the free birth control to the female employees (some of whom are not even Catholic), but the religious-affiliated institutions would not have to pay for it.
It was a dodge of sorts, to be sure, but it gave the bishops the cover they needed to maintain the Catholic Church standard opposing contraception. Still, it was a generous compromise. And now the bishops are suggesting it is not enough, citing “serious moral concerns” about the compromise, particularly as it might apply to entities that self-insure.
That, on its own, is a bit of a stretch. The Church, after all, has given marriage annulments to politically-connected people who had not only been married for years, but have had children. If that’s not an inartful dodge around the Church rule forbidding divorce, nothing is. And while it’s probably not helpful to resurrect the painful episode of the decades of child sexual abuse by priests and the failure of the Church to stop them, it’s also true that the institution of the Church is still rebuilding its “moral” brand.
Picking a fight with the Obama administration does nothing to advance that goal. Nor does it improve the Church’s power over its own flock—98 percent of whom have used birth control. Government should indeed protect religious freedom, which is why no one’s asking priests to marry same-sex couples or forcing Catholic hospitals to perform abortions. But what the Church is dangerously close to doing is an equally invasive reverse: asking the government to try to enforce a rule the Church has been wildly unsuccessful in imposing on its own members.
There’s one clear reason why both the Church and the GOP presidential candidates have been raising the tired old accusations of the a war on Catholicism (an allegation that is extremely insulting to Catholics, to whom faith in God is sincere and unshakeable—certainly not threatened by a coworker getting free birth control pills). It’s an election year, so it’s prime time for making hyperbolic and incendiary accusations that have little basis in fact. Social issues have been largely absent from the campaign so far, and for a reason: the economy has been so bad that it was enough of an issue for GOP candidates to run on. But now that the unemployment rate is creeping slowly down and the stock market is stabilizing, the economy may retreat somewhat as an issue. And that leads candidates to insert wedge issues like the contraception debate.
Remarkably, opponents of the Obama administration rule, along with self-described liberal pundits, are convinced that the “Catholic vote” will rise up against Obama in the fall. That analysis assumes that all Catholics vote according to their Church’s dictates, which is absurd, especially in this case. If nearly all Catholics use birth control, why on earth would they vote against a president who tried to make access to birth control easier? Those who are that upset about contraception weren’t planning to vote for this president, anyway.
There will be more social issues raised during this election year, especially after the GOP nomination is sealed. But the contraception debate is a phony one.
By: Susan Milligan, U. S. News and World Report, February 13, 2012
Republican Women Senators Breaking Ranks With Party, Come Out In Favor Of Obama Contraception Rule
While GOP senate minority leader Mitch McConnell (R-KY) has pledged to fight the Obama’s administration’s modified regulation requiring health insurers and busnisses to offer contraception coverage without additional cost sharing, the revised rule “appears to have won over” two of the five Republican women senators.
Sens. Olympia Snowe (ME) and Susan Collins (ME) — both of whom have sponsored legislation requiring insurers to offer contraception benefits in all health plans — are in favor of the new compromise, which would allow religiously affiliated colleges, universities, and hospitals to avoid providing birth control. Their employees will still receive contraception coverage at no additional cost sharing directly from the insurer:
“It appears that changes have been made that provide women’s health services without compelling Catholic organizations in particular to violate the beliefs and tenets of their faith,” Snowe said in a statement. “According to the Catholic Health Association, the administration ‘responded to the issues [they] identified that needed to be fixed,’ which is what I urged the president to do in addressing this situation.
“While I will carefully review the details of the president’s revised proposal, it appears to be a step in the right direction,” Collins said in a statement. “The administration’s original plan was deeply flawed and clearly would have posed a threat to religious freedom. It presented the Catholic Church with its wide-ranging social, educational, and health care services, and many other faith-based organizations, with an impossible choice between violating their religious beliefs or violating federal regulations. The administration has finally listened to the concerns raised by many and appears to be seeking to avoid the threat to religious liberties posed by its original plan.”
Republicans in the senate seem determined to oppose the compromise and have introduced legislation that would allow employers or individuals to opt out of any benefit that undermines their moral beliefs. “They don’t have the authority under the First Amendment of the United States Constitution to tell someone in this country or some organization in this country what their religious beliefs are,” McConnell told “Face the Nation” on Sunday. “This issue will not go away until the administration simply backs down,” he said.
Sen. Kelly Ayotte (R-NH), who led the GOP’s opposition to the original rule, has yet to issue a statement on the measure and did not respond to ThinkProgress’ query about her position. Sen. Lisa Murkowski (R-AK) also did not respond. Sen. Kay Bailey Hutchison (R-TX) co-sponsored a 1999 bill requiring contraception equity in insurance coverage and has not yet to weigh in on the current debate.
By: Igor Volsky, Think Progress, February 13, 2012
Romney Shows He Hasn’t Read Obama’s Modified Birth Control Reg During Rowdy Maine Town Hall
Mitt Romney doubled down on his new-found objection to contraception coverage during a town hall in Maine on Friday. Romney — who remained mum as Massachusetts implemented a measure requiring insurance companies to cover contraception in 2003, signed into law a health care reform bill that has greatly expanded access to state-funded birth control, and required Catholic hospitals to provide emergency contraception to rape victims — told a rowdy crown in Portland, Maine that President Obama’s modified contraception rule does not go far enough:
At the event, Romney also waded into the political fray over the decision by the Obama administration today to require insurers, rather than private employers, to pay for coverage of contraception. The move reversed an earlier decision that would have required religious-affiliated organizations, such as Catholic hospitals, to provide the coverage, prompting an outcry from across the political spectrum.
“Today he did the classic Obama retreat all right, and what I mean by that is, it wasn’t a retreat at all. It’s another deception,” Romney said, arguing that that religious organizations still will have to pay for contraception after insurance companies pass the costs along to employers.
“Companies consist of people, and someone has to pay — the owners, the employees or the customers, and they pass those costs on to the customers,”
he said.
But it’s Romney who is being devious here. Actuaries and real world experiences in covering contraception in the Federal Employees Health Benefits Plan (FEHBP) have found that contraception coverage is at the very least cost neutral within the context of the benefits of the health care plan. And in announcing its compromise on Friday, the administration pledged to work with insurers to issue future regulations that would specifically stipulate that if a religiously affiliated nonprofit chooses to avoid offering contraception in its health care plan, “there be no charge for the contraceptive coverage” for the employer or the employee.
As a senior administration official explained to the Washington Post’s Sarah Kliff, “Our policy is saying that the Catholic hospital doesn’t want to cover contraceptives, and they don’t include that in their policy. It also says that Aetna needs to provide contraceptive services for free to workers in the plan. Aetna sets the premium, but it cannot be higher than it would have been without birth control. The premium does not include contraception.” “There is a sort of bank account,” says the official. So, in this particular hypothetical, “Aetna is sucking it up.”
In other words, providing contraception without additional cost sharing will become “a legitimate cost of doing business” for health insurers who work with religious nonprofits, and while they may not be all too thrilled at the prospect, administration officials expect them to agree “that this is going to be a cost-neutral benefit.”
By: Igor Volsky, Think Progress, February 13, 2012
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