Round Two in the Repro-Rights Fight

We've had a fun-filled few weeks in the repro-rights battles, haven't we? For one thing, Susan G. Komen revealed itself to be anything but politically neutral by trying to sidle out of funding Planned Parenthood's breast cancer screenings—and in the process, publicized the fact that PP is the women's health services provider of last resort for hundreds of thousands of women who need contraception, pap smears, STD and HIV tests, prenatal care, and, oh yes, abortions.

For another, we watched as the Obama administration stood up for contraception as preventive health care that, under the Affordable Care Act, should be fully paid for by your health insurance, with no extra co-pay—even if you are a janitor, phlebotomist, bookkeeper, lab technician, administrative assistant, or processor who works for a hospital, social service agency, or university that happens to be affiliated with a particular church. (By the way, the contraception isn't "free." Jane pays through the nose for her health insurance. The rule just says she can get the Pill and other preventive services without any extra cash outlay.) Churches themselves, and other houses of worship were exempt from the requirement. The proposed regulation applied only to organizations whose primary purpose is secular, not religious, and which hires and serves everyone, regardless of creed. Jay Bookman at the Atlanta Journal Constitution explained the constitutional principles and legal cases nicely, including this bit: 

In [the 1982 case] United States v. Lee, the Supreme Court found that there was nothing unconstitutional in requiring an Amish employer to withhold and pay Social Security taxes for his workers even though “the Amish faith prohibited participation in governmental support programs.”

Here’s how they put it:

“When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

The Christian Science Monitor offers health insurance, even though it violates a central Christian Science tenet. Imagine the outcry if they didn't. Or if a Muslim-run university required all its female employees to wear a veil. Or if a Jewish synagogue banned its secular employees from using their paychecks to buy bacon. Angela Bonavoglia at the Women's Media Center noticed that most of the bloviating about all this was by men, not women, despite the fact that men can buy their contraception over the counter at the drugstore. She also pointed out that:

... the Catholic institutions we’re talking about today bend over backwards to show that they are NOT about the business of inculcating religion, evangelizing, or creating colonies of new Catholics; this is a crucial aspect of the church’s ability to attract non-Catholics—and their checkbooks—to these institutions.   They may say that they operate out of a Christian or Catholic tradition.  But the fact is that the mission of a Catholic college open to the public is to teach; of a Catholic hospital, to heal; of a social service agency, to provide care to needy populations.  

In all instances, these institutions must carry out this secular mission in accordance with laws that govern their activities:  hospitals have to meet standards to open a diagnostic and treatment center; universities have to take specific steps to get accredited; hospitals and universities have to meet the demands of the Americans with Disabilities Act; a meals program has to follow food safety regulations.  If an institution takes on these responsibilities, they have to follow the law.  If their beliefs interfere (e.g., making abortions unavailable for trafficking victims), and an accommodation cannot be made, then the religious institution should not get to do that work with public money.  On the trafficking issue, that is now the case.  

All that got twisted around by the "war on religion" folks into the idea that the government was ordering the Catholic Church to violate its religious tenets. So Obama stepped in late on a Friday—the time you release news that you do not want to see churned around for a full day's news cycle—and said: Okay, the religiously-affiliated hospital or university or food pantry doesn't have to pay for the contraceptives. The insurance company can pay for it, all by itself, directly from the money that Jane Janitor pays in her premiums. M'kay? 

Yes, okay with Sister Carol Keehan, who runs the Catholic Health Association. (Remember, the nuns deal in the real world; they actually take care of sick people who need the Pill to treat endometriosis or avoid having so many babies that they will slide into poverty.). Not okay with the U.S. Conference of Catholic Bishops, whose concern is with the theological, and whose authority has been, shall we say, undermined by that pesky little business of shuffling around those bad, bad priests. (Remember that 98 percent of Catholic women have used contraception and that a majority of about 52 percent supported the mandate.) So Obama managed to isolate the Bishops from their putative flock. 

So what just happened? First, repro-rights activists have been warning for years that the anti-abortion movement's leaders (not the individuals, but the leaders) have also been coming for contraception as well. That reactionary position was exposed when the evangelical right rose up to support the bishops. That's not good for their agenda. There's just no way that contemporary women are giving up their ability to control their fertility. Toward that end, Amanda Marcotte at Slate argues that Obama "punked" the GOP: 

The fun part of this is that Obama just pulled a fast one on Republicans. He drew this out for two weeks, letting Republicans work themselves into a frenzy of anti-contraception rhetoric, all thinly disguised as concern for religious liberty, and then created a compromise that addressed their purported concerns but without actually reducing women's access to contraception, which is what this has always been about. (As Dana Goldstein reported in 2010, before the religious liberty gambit was brought up, the Catholic bishops were just demanding that women be denied access and told to abstain from sex instead.) With the fig leaf of religious liberty removed, Republicans are in a bad situation. They can either drop this and slink away knowing they've been punked, or they can double down. But in order to do so, they'll have to be more blatantly anti-contraception, a politically toxic move in a country where 99% of women have used contraception.

My guess is that they'll take their knocks and go home, but a lot of the damage has already been done. Romney was provoked repeatedly to go on the record saying negative things about contraception. Sure, it was in the frame of concern about religious liberty, but as this incident fades into memory, what most people will remember is that Republicans picked a fight with Obama over contraception coverage and lost

Meanwhile, Adele Stan at AlterNet argues that Obama just exposed the lie of the Catholic Bishops' power:

In offering the bishops an "accommodation" they refused to accept on a contraception provision of the new healthcare law, the Obama administration effectively exposed the powerlessness of the bishops when the rest of the church rose to accept the offer. Any perception of the bishops' power that remains in the halls of Congress or the annals of news stories exists solely because that perception serves the aims of its purveyors: right-wing politicians and news producers in need of spectacle. And, of course, the bishops themselves....

[Y]ou'd be hard-pressed today to find a vote delivered by a bishop -- at least not because of a statement made from the pulpit for or against a given politician. Political polls have, for decades, shown that a monolithic Catholic vote no longer exists; the voting behavior of Catholics is virtually indistinguishable from that of the public at large. Catholics come in all races and classes, and their votes typically break along those lines -- just like those of the rest of America.

I was part of a discussion about all this yesterday on WGBH radio's Callie Crossley show; go listen, if you're curious what I sound like. I think it's been a good couple of weeks for women's bodies and lives. What do you think? Who won these skirmishes?