Friday, February 10, 2012

Do we really want poor women to pump out more unwanted children? Really?

The religious right has been up in arms for the past couple of months because they claim that the Obama administration's decision on prescription birth control, which requires most employers who provide health insurance to include free prescription birth control, is an affront to their religious beliefs, particularly to the Catholic Church's stupid opposition to artificial birth control methods.

But what has been under-reported--especially by news outlets unfriendly to this president--is that there is nothing new in the Obama policy from existing policies, other than that prescriptions for birth control must be free to the patient. For the last 12 years, federal rules have required most employers to include coverage of birth control methods.

Here is what NPR reported, this morning:

The only truly novel part of the plan is the "no cost" bit. The rule would mean, for the first time, that women won't have to pay a deductible or copayment to get prescription contraceptives.

Even though this policy is nothing new, it is fair to ask if it passes constitutional muster.

"Now millions more women and families are going to have access to essential health care coverage at a cost that they can afford," says Sarah Lipton-Lubet, policy counsel with the ACLU. "But as a legal matter, a constitutional matter, it's completely unremarkable."

In fact, 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."

California is one of many states which has had a birth control requirement for years.

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.

While the state courts have consistently ruled in favor of this type of law, the Supreme Court of the United States will probably end the argument one way or the other:

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.

Churches are exempt under the four rules, but not all church-affiliated groups are:

... in 2006, New York's top state court rejected a claim by Catholic Charities and several other religious groups that the state's contraceptive coverage law discriminated against them because it exempted churches but not their religiously affiliated groups. "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," the justices wrote.

A reasonable argument could be made that the government should not require insurers to sell or employers to buy policies which charge this or that or nothing for a certain medication or a certain treatment. In other words, an argument can be made against the government interferring in a question of price. But no one arguing against "free birth control" is making that case. They appear to be making the false claim that this is some new war against the Catholic Church by Mr. Obama, when nothing has changed for the Church.

One thing I think all reasonable people can agree on--I am not counting any of the religious right in the reasonable category--is that poor people and our country at large are not better off having poor women give birth to children they don't want to have and that they will do a lousy job raising. Better and cheaper birth control for them will prevent unwanted births among women who cannot now afford the cost of prescribed birth control and it will reduce the demand for abortions.

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