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You are here: Home / Civil Rights / Women's Rights / Contraception Clusterfuck / Will the Religious Right Succeed? An Examination of the Hercules Ruling on the Birth Control Benefit

Will the Religious Right Succeed? An Examination of the Hercules Ruling on the Birth Control Benefit

by Imani Gandy (ABL)|  July 31, 20124:01 pm| 24 Comments

This post is in: Contraception Clusterfuck, The War On Women, Vagina Outrage, Women's Rights Are Human Rights

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My latest post for RH Reality Check has been published:

In May of this year, Jan Brewer signed into law Arizona HB 2625, a bill that would allow employers to opt out of the policy under the Affordable Care Act ensuring that all insurance policies cover preventive health care services for women, including contraception, without a co-pay.

It’s a simple concept, really: contraception is health care. Health insurance plans offer coverage for health care. Ergo, health insurance plans should offer coverage for contraception. Ta da!

Laws like Arizona HB 2625 undercut this simple concept. According to supporters of laws like HB 2625, contraception is of the devil. And because the Catholic Church’s official position on contraception is that it is sinful, the Church seems personally offended at the notion that any employer be required by the government to exist in the same space as women who are using their hard-earned wages to pay for contraceptive and other health care services that are anathema to church doctrine.

A couple months ago, I published a piece that described what I saw as a dangerous slippery slope regarding Arizona HB 2625 (and laws like it), which permit employers to claim some sort of religious affiliation and thus excuse themselves from providing critical health-care services to women employed by them.

In that piece (and in the lively discussion that followed in the comment section), I noted that the exemptions provided by the Arizona legislation for “religiously-affiliated employers” went far beyond the exemptions provided by the Obama Administration to religious institutions, insofar as the Arizona law permits any employer to, essentially, pinky swear that its business is steeped in Jesus.

A RELIGIOUSLY AFFILIATED EMPLOYER MAY REQUIRE THAT THE CORPORATION PROVIDE A CONTRACT WITHOUT COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION YOF THIS SECTION BECAUSE PROVIDING OR PAYING FOR COVERAGE OF THE SPECIFIC ITEMS OR SERVICES IS CONTRARY TO THE RELIGIOUS BELIEFS OF THE RELIGIOUSLY AFFILIATED EMPLOYER OFFERING THE PLAN. IF A RELIGIOUSLY AFFILIATED EMPLOYER OBJECTS TO PROVIDING COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION Y OF THIS SECTION, A WRITTEN AFFIDAVIT SHALL BE FILED WITH THE CORPORATION STATING THE OBJECTION. ON RECEIPT OF THE AFFIDAVIT, THE CORPORATION SHALL ISSUE TO THE RELIGIOUSLY AFFILIATED EMPLOYER A CONTRACT THAT EXCLUDES COVERAGE FOR SPECIFIC ITEMS OR SERVICES REQUIRED UNDER SUBSECTION Y OF THIS SECTION.

The law defines “religiously affiliated employer” as follows:

“RELIGIOUSLY AFFILIATED EMPLOYER” MEANS EITHER:
(a) AN ENTITY FOR WHICH ALL OF THE FOLLOWING APPLY:
(i) The entity primarily employs persons who share the religious tenets of the entity. (ii) The entity primarily serves persons who share the religious tenets of the entity.
(iii) The entity is a nonprofit organization as described in section 6033(a)(2)(A)(i) or (iii) of the internal revenue code of 1986, as amended.
(b) AN ENTITY WHOSE ARTICLES OF INCORPORATION CLEARLY STATE THAT IT IS A RELIGIOUSLY MOTIVATED ORGANIZATION AND WHOSE RELIGIOUS BELIEFS ARE CENTRAL TO THE ORGANIZATION’S OPERATING PRINCIPLES.

Plainly, the limitation set forth in subsection (b) is no limitation at all. Any entity can change or amend its articles of incorporation relatively easily — it doesn’t take a lot of imagination. Indeed, when I first wrote about the Arizona law, I suggested that companies would rush to make their companies more Jesus-based in order to take advantage of religious exemptions, and to avoid being forced by Big Government to provide full health insurance coverage for women.

While my concern at the time related only to the Arizona’s contraception opt-out law, it seems that my prediction of what would soon come to pass is proving correct.

(read the rest)

[via RH Reality Check]

[xposted at ABLC]

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24Comments

  1. 1.

    Svensker

    July 31, 2012 at 4:08 pm

    I have a sincere religious belief against war — why do I have to pay taxes for all this military crap? Seriously. Can someone explain the difference, legal-wise?

  2. 2.

    Litlebritdifrnt

    July 31, 2012 at 4:14 pm

    BTW Harry Reid says a Bain investor told him that Romney didn’t pay any taxes for 10 years.

  3. 3.

    Applejinx

    July 31, 2012 at 4:14 pm

    permits any employer to, essentially, pinky swear that its business is steeped in Jesus.

    Pinkie PIE swear? Didn’t think you could get any cooler ;)

    I suspect such a swear would be a tactical miscalculation on their part, once the situation was explained a little more…

  4. 4.

    Mattminus

    July 31, 2012 at 4:15 pm

    If they have such sincerely held religious beliefs, why did they name their business after a demi-god other than Jesus? Doesn’t the name “Hercules” violate the first commandment?

  5. 5.

    erops

    July 31, 2012 at 4:15 pm

    What about a company or school run by Seventh Day Adventists? What about LDS employers covering treatment for alcohol-related liver disease or, worse, FSA kids?

  6. 6.

    Ruckus

    July 31, 2012 at 4:21 pm

    My religion requires insurance companies to provide contraceptive coverage.

    What the hell about my religious rights?

  7. 7.

    c u n d gulag

    July 31, 2012 at 4:27 pm

    What if the people who own businesses are Muslims or Jews?

    Will they be allowed to not pay for certain parts of their employees health insurance because of their beliefs?

    Can they demand that their employees give-up eating pork, like bacon, because of increased heart risk?

    What about other religions and their beliefs?

    This isn’t a slippery slope. It’s a descent into madness.

    Ah, but not if the reason for doing this is to say, “See, with all of these exceptions, companies shouldn’t have to pay for ANY health care. Let the individuals buy and do what they want, according to THEIR beliefs – and leave US out of it?”

  8. 8.

    Zifnab

    July 31, 2012 at 4:28 pm

    @Svensker: We only honor the sincere religious beliefs of conservatives. Amoral America-hating hippies can piss up a rope.

  9. 9.

    Bob

    July 31, 2012 at 4:42 pm

    @c u n d gulag: No my friend, money is fungible, hence my employees cannot buy any policy they like, as they would be using my pristine blessed money to support the devil.

  10. 10.

    Villago Delenda Est

    July 31, 2012 at 4:44 pm

    @c u n d gulag:

    What if the people who own businesses are Muslims or Jews?

    Not real religions. Heck, Catholicism only qualifies, barely, because they’re allies on this one issue.

  11. 11.

    Steve

    July 31, 2012 at 5:10 pm

    I mostly agree with your legal analysis. However, I think the court got a little wacky when it came to the “least restrictive means” test. Hercules is arguing that instead of making our little old company buy contraceptive coverage for its employees, the government could just provide taxpayer-funded contraceptives for everyone in America, and that would be a less burdensome alternative. Come on. Surely that’s not a legitimate argument.

    Setting that aside, let me try a hypothetical. Imagine the law forced every employer to actually stock contraceptives on-site for the convenience of employees. Hercules isn’t a religious institution, but can its devoutly religious owners really be compelled to pass out contraception in the company lunchroom? Maybe you’re not willing to concede this point, but I think that would be going too far. I don’t think the government can force Orthodox Jews to keep their business open on Saturday, either.

    But this absurd example illustrates why it’s a big mistake for us to let the other side frame the debate as “forcing employers to dispense contraceptives.” You don’t walk into your boss’s office and ask him for the Pill. What’s really happening is that the company provides you with health insurance coverage, and what you use that coverage for is YOUR business, not theirs. It’s no different than the company providing you with a paycheck and you deciding to spend it on contraception or some other sinful activity. It’s none of the company’s business what you do with your earned compensation, and by the same token the company doesn’t bear any moral responsibility for your choices.

    I think winning this framing battle is going to be very important in the courts. If the courts agree that the HHS mandate is like forcing companies to pass out birth control, the cases will be a lot tougher for our side to win. That’s a ridiculous way of thinking about what the mandate actually does, but it needs to be spelled out.

  12. 12.

    Roger Moore

    July 31, 2012 at 5:16 pm

    @Svensker:

    I have a sincere religious belief against war—why do I have to pay taxes for all this military crap? Seriously. Can someone explain the difference, legal-wise?

    You’re talking about taxes, which you are absolutely required to pay. They’re talking about money an employer is paying for employee health services, which is different. At least that’s the argument. It gets a lot fuzzier when you realize that employee sponsored health care is tax subsidized. I suspect that the real answer is somewhere between “Because SHUT UP, that’s why” and “IOKIYAR”.

  13. 13.

    ABL

    July 31, 2012 at 6:17 pm

    @Steve: That’s a great point.

  14. 14.

    ABL

    July 31, 2012 at 6:21 pm

    @Steve: Although, Hercules doesn’t have to be a “religious institution.” The owners can just say (or amend Hercules’ articles of incorporation to say) that the manner in which Hercules sell air conditioners is very Christ-like (or whatever), and because corporations are people (or “persons”) under RFRA, Hercules itself is entitled to free exercise of religion in its own right, and not just because it is owned by people who are devoutly Catholic.

    That’s where we are headed, and we can thank Citizen’s United for that, too.

  15. 15.

    ABL

    July 31, 2012 at 6:23 pm

    This isn’t a slippery slope. It’s a descent into madness.

    It really is. Don’t even get me started on the court’s order in the Arizona 20 week ban case. Criminy.

  16. 16.

    rea

    July 31, 2012 at 6:45 pm

    That’s the Chick-fil-a exception! From Chick-fil-a’s articles of incorporation–the corporate purpose is, “”To glorify God by being a faithful steward of all that is entrusted to us and to have a positive influence on all who come in contact with Chick-fil-A.”

    So, of course, they qualify for the contraception exception.

  17. 17.

    Patricia Kayden

    July 31, 2012 at 7:08 pm

    Was there any pushback from Arizonian women or liberals against Arizona HB 2625? This is a state by state battle, and Repubs like Brewer have to be opposed in individual states so they understand that there are consequences to messing with women’s reproductive rights.

  18. 18.

    Caz

    July 31, 2012 at 9:13 pm

    Why shouldn’t employers be able to offer whatever benefits they want to offer or don’t want to offer? It’s still a free country, right? So if an employer has a religious objection to contraception, why should they be forced to offer coverage for it? No one is forcing people to work for any particular employers, so if you choose to work for a religious organization, then you accept whatever benefits they offer or don’t offer. If you don’t like the benefits package, you are free to look elsewhere for employment.

    Contraception is cheap as hell, so if that is the top priority for a woman in terms of an employment benefit, then she should only work for employers that cover it. She shouldn’t choose to work for a religious organization that has a religious objection to contraception if it’s such a high priority for her.

    When you start forcing people and employers to do things with their lives and businesses that they don’t want to do, or have ideological objections to, that’s not freedom. Freedom means being able to do what you want with your own life/business, even if it’s unpopular or detrimental. Businesses should be able to offer whatever benefits they want, and not offer the ones they don’t want to offer. Then people can choose employers that offer benefits packages they like, and not work for companies that don’t offer satisfactory benefits packages.

  19. 19.

    TooManyJens

    July 31, 2012 at 9:20 pm

    @Caz: Why don’t employers only hire people who share their religious beliefs if they don’t want their employees to use their benefits in a religiously unapproved way?

    Of course that’s against the law for most employers, and the answer to why that is goes a long way to answer why employers shouldn’t get to dictate how employees use their compensation.

  20. 20.

    catmandoodo

    July 31, 2012 at 9:25 pm

    Does this mean, under this law, that an employer who is a Jehovah’s Witness would be able to exclude coverage for blood transfusions? Or could a Christian Scientist only cover faith healing? Or any of the countless silly things that people believe under the rubric of “religion” And, the Catholic Church; aren’t they those fine folks who used to torture people to save their souls?

  21. 21.

    Steve

    July 31, 2012 at 10:46 pm

    @Caz: Because it’s sex discrimination. From a business perspective, countless employers would love to drop maternity coverage from their health plans, I assure you. As a society, we trample on their freedom to do so because it would be unconscionable.

  22. 22.

    brantl

    August 1, 2012 at 8:31 am

    @Caz: Because then you will have employers offer benefits in a discriminatory manner, won’t you, dumbass? Trolls, per se, don’t bother me that much, but the slow-witted ones bother me a lot.

  23. 23.

    Barry

    August 1, 2012 at 8:58 am

    @Svensker: “I have a sincere religious belief against war—why do I have to pay taxes for all this military crap? Seriously. Can someone explain the difference, legal-wise?”

    (a) You are not a corporation, so you have no rights.
    (b) Your beliefs are left-wing islamofeminazi beliefs, and therefore are not protected by the Conservatution.

  24. 24.

    low-tech cyclist

    August 1, 2012 at 11:40 am

    Jeez, ABL, exactly how deeply did you bury your lede? Is this about the Hercules ruling, or what? When do we get to that part? Or do we have to find Hoffa’s body first?

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