Contraceptive Pills

Contraceptive Pills Wikimedia Commons

To listen to the conservative wind machine, you’d think that the Great Obamacare Contraception Mandate (GOCM) is a grave new assault on religious liberty in America. Here’s the beginning of  a USA Today commentary by Family Research Council president Tony Perkins and Rep. James Lankford (R-OK):

Like many startups, Hobby Lobby began in founder David Green’s garage. Now, more than 40 years later, the Green family business has 16,000 full-time employees in stores across the country with 70 new stores opening this year. They are a quiet family that loves God, honors their employees and enjoys serving people in their stores around the nation.

But two years ago, the rules changed for every business. As of 2013, the Green family had to decide if they would follow their faith or follow the Obama administration’s new regulations.

Then last week Obamacare’s Perpetrator-in-Chief had the chutzpah to give a big speech on religious liberty at the National Prayer Breakfast. Harumphed Washington Post columnist Kathleen Parker, “Missing was any mention of Hobby Lobby or the Little Sisters of the Poor — whose cases have recently reached the U.S. Supreme Court and that reveal the Obama administration’s willingness to challenge, rather than protect, religious liberty in this country.”

OMG! Who would have guessed that a contraception mandate was in place in no fewer than 28 states before the GOCM came into being? Or that these include such religious liberty-loving jurisdictions as Georgia and Texas, whose mandates do not provide even limited exemptions for churches or religious associations, much less for for-profit corporations like Hobby Lobby.

Which means that that quiet family that loves God, honors their employees, and enjoys serving people in their stores is already required to cover its female employees for contraceptive services in 119 locations from  Albany and Abilene to Warner Robins and Wichita Falls. Not to mention in hundreds of other places as well.

And that it’ll have to continue to cover such employees even if the Supreme Court decides that for-profit companies enjoy a constitutional right to religious free exercise and that the 1993 Religious Freedom Restoration Act (RFRA) protects that right against the GOCM. That’s because the Court decided back in 1997 that RFRA doesn’t apply to the states — that a constitutional claim under the Free Exercise Clause cannot prevail against a neutral state law of general applicability. Which these mandates happen to be.

Why the Greens and their ilk found it possible to observe a contraception mandate without a peep when it was just the states doing the mandating is a question best answered by them. (Update: In the Greens’ case, it may be because, according to their brief, their insurance policy excludes the morning-after pill and two kinds of IUD — a partial exemption to which they are entitled by right in none of the mandating states except Illinois.)

For their part, New York’s Catholic bishops did go to court to contest that state’s mandate. When they lost, they decided it was more important to continue providing their employees with health coverage than to, well, follow their faith.

Far be it from me to accuse anyone of bad faith in seeing the GOCM as limiting their own or somebody else’s free exercise of religion. Let’s just not pretend that this is something new under the sun, that it expresses an unprecedented hostility to religious liberty on the part of the Obama administration, or that working out a proper balance between religious free exercise and the rules of society is other than a normal, customary, and never-ending practice of American government.

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Mark Silk

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service

16 Comments

  1. The first sentence says many starts-up began in David Green’s garage. I would have liked to hear more about that. Did he rent it out? Donate space? Are other families making ends meet by offering their garage as an incubator? Inquiring minds, Mark, we want to know.

  2. Desmond Drummer

    Thank you, Director Silk, for this insightful commentary. I consider a lot of this “hyperventilating” as politically motivated and rooted in the deep suspicions many in the religious right had about President Obama before he took office. Everything he says and every policy brought to the table is looked at as evidence that their worst fears are coming into fruition. As a Catholic seminarian and soon-to-be priest, I cringe at every overblown statement on threats to religious liberty I hear in the classroom, over the pulpit, and in the Catholic blogophere. Here at my seminary, information on the Hobby Lobby case was a posted on a faculty member’s bulletin board. Along with it was a note stating, “Please pray for Hobby Lobby.”

    I’m sorry…I cannot bring myself to pray for a corporation. I believe that a favorable outcome for Hobby Lobby in this case will bring with it hidden externalities a la Citizens United v. Federal Election Commission.

  3. About time someone publically said this. It was nice to see that it came from the religious community! The commentor’s were all right on too! Nice job all! Thanks Mr. Silk!

  4. Edward Burton

    Meanwhile back at the land of the free, those who can read and understand facts are still aware that nothing in the law requires Hobby Lobby or any other employer to purchase contraceptives and hand them to employees. Rather, they are required to purchase insurance, at which point their involvement ends.
    It is entirely up to the employee whether or not the insurance is used to purchase those awful things. Fault, if any, is that of the employee. Sin, if any, is by the employee. Violation of religious rules, if any, is by the employee.
    Meanwhile the employee also receives a paycheck. And, gasp, shudder, the employee can use that paycheck to buy all the things the insurance might help buy. If there’s anything wrong with the insurance in the light of the fact that the paycheck can be used for all those same things, I’d like to know what it is.
    The insurance is the economic equivalent of a raise in pay, and morally indistinguishable in my eyes, at least.

  5. I can see why you are teaching religion and not law. So an illegal and unconstitutional federal mandate with millions of dollars in fines connected to it cannot be challenged because there are also similarly unconstitutional state laws? The mandates in most states are insurer mandates, which may well have initially escaped many companies’ attention. And they include self-insurance exemptions. The Becket Fund, representing Hobby Lobby and the Little Sisters, has already fact-checked this point, which RNS should probably have required you to do as well: http://www.becketfund.org/fact-checking-the-white-house-false-claims-about-the-hhs-mandate/

    • The only thing worse than a snarky response is an ignorant snarky response. Your claim of unconstitutionality is hogwash. Any time the Federal Government exerts its power, the same “small government” arguments get trotted out in a knee-jerk fashion. The ACA has already passed muster for constitutionality through the Supreme Court. Conservatives are just looking to re-fight something already lost.

      The Becket Fund makes patently ridiculous arguments for religious freedom exceptions for for-profit companies trying to create a notion of corporate religious beliefs which does not exist. The term is being abused by people who want to avoid following laws that hold them accountable to others.

    • Re: “So an illegal and unconstitutional federal mandate with millions of dollars in fines connected to it cannot be challenged because there are also similarly unconstitutional state laws?”

      Curiously, that “illegal and unconstitutional federal mandate” was actually held to be both legal and Constitutional by a Supreme Court with a conservative majority. That the Becket Fund disagrees is really irrelevant to anything. They can scream to high heaven about how “illegal and unconstitutional” the “federal mandate” is, but they may as well be announcing that the sky is red.

      It’s over. They need to grow up already and move on with their lives.

      The cold fact is that “religious freedom” ends at a person’s front door. It cannot be wielded like a club in order to bludgeon others … who may or may not have the same beliefs … to live according to one’s own metaphysics.

      As for financing contraception, that ship, too, has already sailed. Quakers, for instance, must pay federal income taxes, even if as pacifists they object to tax money being spent on the military.

      Ultimately this is not about “conscience” at all, but about “control.” Christianists want to be able to force others, even those not of the same religion, to live according to their own dour metaphysics. They cannot, and will never, be satisfied with anything less. Anyone who tells them anything different, or who insolently refuses to believe as they do, is viewed as depriving them of their “religious freedom,” and in their eyes, that’s nearly the functional equivalent of trying to kill them.

      It’s a dysfunctional, paranoid, delusional attitude … but they aren’t letting go of it.

  6. There is not a thing in the Affordable Care Act that should be objectionable to conservatives, it is straight from Mitt Romney and the Heritage Foundation. Liberals have plenty to complain about as this plan is clearly designed to be a gift to the insurance and pharmaceutical companies.

    The only thing conservative can’t stand about “ObamaCare” is Obama. Funny thing is that Obama himself said that the sign that the right is accepting the plan would be when they quit calling it ObamaCare, and lately I’ve heard several GOP congressmen calling it ACA or Affordable Care Act.

    Now, to address the contraceptive mandate directly, ACA could be amended so that those groups, opting out of the mandate, can and should be charged higher premiums in exchange for not covering contraception. That would be perfectly in line with the reality of the costs to the plan. There is plenty of data showing that including contraceptive coverage decreases plan costs. The argument that people are being forced to pay for a coverage they don’t want, is actually backwards. The mandate is forcing them to accept a discount they should want, and that fact should be made much more obvious.

  7. samuel Johnston

    “Ultimately this is not about “conscience” at all, but about “control.” Christianists want to be able to force others, even those not of the same religion, to live according to their own dour metaphysics. They cannot, and will never, be satisfied with anything less. Anyone who tells them anything different, or who insolently refuses to believe as they do, is viewed as depriving them of their “religious freedom,” and in their eyes, that’s nearly the functional equivalent of trying to kill them.”

    What an excellent formulation of the problem!

    it is, at bottom, the aggressive ego drive for dominance. Christian humility is a sad joke.

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