Give ’em an inch
by digby
Emily Bazelon in Slate points out that the new rules allowing corporations and institutions that are not strictly religious to opt out of providing birth control on religious grounds by simply writing a little note to the federal government isn’t going to stop the assault on the contraception mandate.
Here’s why this new rule isn’t going to end the lawsuits anytime soon: Little Sisters and the others don’t want a new mechanism for alerting the government so a TPA can provide birth control. “The government has never offered a reason why it needed to coerce the Little Sisters and others to be a part of its contraceptive delivery system, nor any reason why it chose to treat the Little Sisters as less deserving of religious liberty than houses of worship,” Daniel Blomberg, a lawyer for the Becket Fund, which represents Little Sisters, emailed me. “It is disappointing that the government continues to treat religious ministries as not religious enough to deserve the same exemption it gives houses of worship.”
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This brings us to the real crux of the issue, which Hobby Lobby and all the other litigation has so far obscured: The government wants the employees at the heart of these cases to get the contraception coverage everyone else’s employees get, through their employment. The religious employers do not.
In fact, it’s worse than that. It’s not about religious employers. It’s about any employers being mandated to offer this coverage — to offer any coverage. It’s just one incremental step in a long term strategy to create a legal structure for corporations and other organizations to “opt out” of participating in government mandated programs on the basis of “conscience.”
Bazelon outlines how wily this plan really is — so wily they punk’d the female justices of the Supreme Court:
In its Hobby Lobby ruling in June, the Supreme Court seemed to suggest that the government’s goal was a perfectly acceptable one—easily reached, with a little rewriting of the rules. In his majority opinion, Justice Samuel Alito appeared to see Form 700 as a good compromise. TPAs could arrange for contraceptive coverage, Alito said, “without imposing any cost-sharing requirements on the eligible organization.” This was all very soothing. Alito went so far as to make the government’s stance, in insisting that Hobby Lobby cover birth control for its employees directly, seem a little silly. If the officials at HHS who came up with Form 700 had figured out an accommodation for the religious nonprofit groups, why not offer to extend it to private companies like Hobby Lobby?
But there was a catch. “We do not decide today whether an approach of this type complies with RFRA”—the Religious Freedom Restoration Act, the 1990s law that’s the basis for all of these religion-based challenges to paying for birth control—“for purposes of all religious claims,” Alito wrote. A week later, the court walked through this conveniently open door. Wheaton College, which is Christian, didn’t want to sign Form 700, and in another interim but telling order, the court said it didn’t have to. No wonder all the other religious groups and “privately held” companies want the same deal.
In the Wheaton College case, Sotomayor (plus Justice Elena Kagan and Justice Ruth Bader Ginsburg) raised hell. In an unusual act of all-female solidarity, the three justices said the court’s order siding with Wheaton “undermines confidence in this institution” because it contradicts the promise the majority made in Hobby Lobby. To me, it looks like some justices thought they’d reached a nice compromise for the religious objectors in Hobby Lobby, only to find that others weren’t along for the ride.
Ooops. Sorry ladies. We were just kidding.
An that means that this new order from the administration is unlikely to stand.
I’m going to guess that this will end up like the Hyde Amendment. It also made no sense when it was enacted, and Democrats tried for years to stop its yearly re-authorization — until they finally gave up and we had President Obama proclaiming that it was a “tradition” to make sure poor women did not have insurance coverage for abortion and negotiated the possibility away permanently in the ACA.
The social conservatives never give up until they get their way on these women’s issues. It’s fundamental to their cause. The fight has now expanded from abortion to birth control which is now a subject of controversy despite the fact that nearly 100% of women in the nation have used it (which makes nearly 100% of women “sluts” according to right wing haters.) And if there’s one thing the history of the past few decades of legislative battles has taught us it’s that when push comes to shove, the Democrats will use “controversial” women’s rights as a bargaining chip and tell the ladies they’ll have to take one for the team.
It’s pretty to think that these latest polling numbers which show Republicans suffering electorally because of their inability to appeal to women will make the Democrats stiffen their spines and recognize that they have to dig in their heels on this. And I suspect they will — as long as it doesn’t mean they have to compromise on something else they care about. Women’s issues are always on the table.
h/t to DC
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