Contraception Coverage Policy and the Perils of Being Reasonable in 21st Century America

“When a religious organization chooses to hire nonbelievers, it must, at least to some degree, be prepared to accept neutral regulations imposed to protect those employees’ legitimate interests in doing what their own beliefs permit.”

—New York Court Case

In so many ways, the kerfuffle over the Obama Administration’s contraceptive coverage policy is another right-wing canard. Although Planned Parenthood and a host Catholic organizations support the compromise policy, right-wingers from Paul Ryan to the crazy bishop that heads the Sioux City Diocese are chumming the political waters.

Ryan says Obama hasn’t compromised, he’s double-down. And according to the Bishop Walker Nickless, “The power of evil, the devil, is certainly looking everywhere where the power of evil can make a difference… And that’s why we’ve got to stand up and violently oppose this… we cannot let darkness overshadow us.”

Lost in the political shuffle is the reasonableness of the original policy and thus the compromise. Agree or disagree with the policy, it was hardly revolutionary. As NPR reported last week–I don’t know how I missed it,

Employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That’s when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender. 

Here’s how the EEOC put it at the time: “The Commission concludes that Respondents’ exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act, whether the contraceptives are used for birth control or for other medical purposes.”

But it’s not only the EEOC that has ruled on the issue. More than half the states have similar “contraceptive equity” laws on the books, many with religious exceptions similar or identical to the one included in the administration’s regulation.

That’s no accident. “The HHS rule was modeled on the exceptions in several state laws, including California, New York and Oregon,” says Lipton-Lubet of the ACLU.

There are now lawsuits challenging the constitutionality of the policy, including a new one filed on behalf of the religious television network EWTN. But the exemptions have already been tested in court, at least at the state level.

In 2004, the California Supreme Court upheld that state’s law, in a suit brought by Catholic Charities, on a vote of 6-1.

The court ruled that Catholic Charities didn’t qualify as a “religious employer” because it didn’t meet each of four key criteria (which, by the way, are the same as those in the new federal regulation):

• The organization’s primary purpose is “the inculcation of religious values.”
• It primarily employs people of that religion.
• It primarily serves people of that religion.
• It’s a registered nonprofit organization.

Federal courts have yet to rule on state mandates for contraceptive coverage, though at least one case is pending. And in light of Hosanna-Tabor Church v. Equal Employment Opportunity Commission, in which the Supreme Court that found discrimination law didn’t apply to church ministers, there are probably new grounds for appeal. State court decisions, however, will carry some weight. But since Hosanna was narrowly focused on what’s called the ministerial exception–which the Catholic Charities case seems to have followed closely–any challenges based on it would seem to be an uphill climb.

In my unprofessional opinion, the law seems to stand on the side of the Obama Administration. From a moral perspective, he can certainly be excused from the charge of radically trying to usurp the free exercise of religion. Politically, the fall out remains to be seen.

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