Bringing Rationality to the Rush Limbaugh/Contraception Controversy
This column by ACRU General Counsel and Senior Fellow for the Carleson Center for Public Policy (CCPP) Peter Ferrara was published March 8, 2012 on Forbes.com.
If you are too poor in America to pay for your own contraceptives, the government already pays for them for you. As Rich Lowry writes in his February 17 column,
“a vast government apparatus exists to provide poor women access to contraceptives, from Medicaid and community health centers to Title X. There are roughly 4,500 Title X-funded clinics around the country. They are required to provide free birth control to the poor and subsidized birth control to people with incomes between 100 percent and 250 percent of poverty.”
This assistance for the poor is not at issue today. No one is calling for an end to such public assistance.
And if you are not too poor to pay for your own contraceptives, then you should be paying for them yourself. By what reasoning can you argue that I, as a taxpayer, should be paying for them?
Of course, if you can cut a deal with your employer to pay for health insurance that pays for contraceptives, good for you. But even apart from the question of religious liberty, there is no justification for the government requiring your employer to pay for such insurance, when you are not too poor to pay for contraceptives yourself.
Lowry cites the statistic from the Guttmacher Institute that 99 percent of women who have been sexually active in America have used birth control. As he rightfully comments, “This doesn’t sound like a country facing a crisis of contraception.” That is because, as the Wall Street Journal reported on March 6, “Prescription birth control pills generally cost between $15 and $50 a month, and Wal-Mart and Target sell generic versions for as little as $9.”
But Democrat and liberal propagandists are telling us that opposing a mandate for employers to pay for health insurance providing free contraceptives for everyone, or even just opposing a requirement for religious institutions to pay for such insurance for their employees, is the same thing as favoring a ban on the sale of contraceptives. As a result, the Democrat Party controlled press is solemnly “covering” the issue of whether women will be allowed to access contraceptives.
That issue was decided by the Supreme Court almost 50 years ago. In Griswold v. Connecticut 381 U.S. 479 (1965), the Supreme Court struck down an 1879 Connecticut law that prohibited the use of “any drug, medicinal article or instrument for the purpose of preventing conception.” The Court held the statute unconstitutional on the grounds that states do not have the power to ban contraception.
Seven years later, in Eisenstadt v. Baird 404 U.S. 438 (1972), the Supreme Court struck down as unconstitutional a Massachusetts law that prohibited the distribution of contraceptives to unmarried persons. The Court ruled that states do not have the power to prohibit contraceptives for unmarried people as well as for married people, as at issue in Griswold.
You may remember George Stephanopolous during a televised ABC News GOP Presidential debate early this year stunning the candidates by asking them whether they thought the states had the power to ban contraceptives. Romney rightly answered that it was a silly question, because he knew of no state trying to ban contraceptives. But it was even more silly, because the Supreme Court already ruled on the precise question asked by Stephanopolous that the answer is No! The states do not have the power to ban contraceptives.
So whether women will be allowed access to contraceptives, or whether contraceptives will be banned, is not at issue in this election, not only because no one is proposing to deny or ban such access, but also because the Supreme Court has already ruled that it would be unconstitutional for the government to do so.
What is at issue in this election is whether the government has the power to force a religious institution to pay for contraceptives and even abortion inducing drugs for its employees, when the use of contraceptives and drugs is contrary to the institution’s religious beliefs. That issue has been raised by Obamacare, as HHS Secretary Kathleen Sebelius has proposed a regulation under the authority of that law requiring employers to pay for health insurance providing free contraceptives for their employees.
This is unworkable for Catholic and other Christian institutions serving as employers, when their religious beliefs oppose abortion and the use of contraceptives particularly by those engaging in sex outside of marriage. Their employees and other adherents of their faith would still be perfectly free to buy their own contraceptives, or even their own health insurance paying for them. In fact, it is conservative, free market policies that favor Patient Power and control and choice over their own individual health insurance, freeing workers from any employer involvement in their insurance. But forcing religious institutions to pay for practices against their beliefs and teachings is unprecedented in America. Moreover, this Obamacare policy is just a precedent to the next step of forcing everyone to pay for health insurance covering abortion, which would be a gross violation of religious liberty for religious institutions as employers.
In fact, the Obamacare health insurance mandate violates established federal law as applied to religious institutions, the Obamacare law to the contrary notwithstanding. In 1993, the Religious Freedom Restoration Act was enacted by a unanimous vote of a Democrat controlled House of Representatives, and by a 97-3 vote of a Democrat controlled Senate, with the signature of Democrat President Bill Clinton.
As David B. Rivkin and Edward Whalen explain in the Wall Street Journal on February 15, that Act provides that “the federal government may ‘substantially burden’ a person’s ‘exercise of religion’ only if it demonstrates that application of the burden to the person ‘is in furtherance of a compelling governmental interest’ and ‘is the least restrictive means of furthering’ that interest. They further explain that “exercise of religion” includes performing or refusing to perform actions on religious grounds, which would include the refusal for religious reasons to provide birth control coverage.
With the government already providing free contraceptives to the poor, there is no compelling government interest in forcing religious institution employers to provide free contraceptives to those who are not poor, who would remain free to buy contraceptives themselves. Moreover, in any event, forcing religious institutions to pay for such contraceptives contrary to their religious beliefs is not the least restrictive means for serving such an interest. Least restrictive of religious liberty would be for the government to pay contraceptive manufacturers to provide contraceptives to the non-poor free of charge as well.
Rivkin and Whelan note that in Wisconsin v. Yoder 406 U.S. 205 (1972) the Supreme Court applying these standards ruled that the government could not require Amish parents to send their teenage children to public schools when they objected to the requirement on religious grounds. The Court concluded that even a $5 fine on the parents for refusing to comply constituted a substantial burden on the free exercise of religion. Yet, under Obamacare, employers failing to comply with the birth control mandate face a penalty of $2,000 per employee.
Rivkin and Whelan also note that the Religious Freedom Restoration Act further “provides that any later statutory override of its protections must be explicit. But there is nothing in the ObamaCare legislation that explicitly or even implicitly overrides the Religious Freedom Restoration Act.” They rightly conclude, therefore, that “The birth-control mandate proposed by Health and Human Services is thus illegal.”
Obama says not to worry, he has an accommodation for religious institution employers. In their case, he is going to compel health insurance companies to give away the contraceptives and abortion drugs for their employees for free. But not only does the President not have the power to order anyone to give away any product or service for free, Obama’s “accommodation” is braindead economics. The insurance company will just roll the cost of any such giveaway into the overall premium, and the religious institution will still be paying for it. Obama does not even begin to explain how his accommodation would work for large religious institution employers who self-insure. Maybe he thinks he will force them to give away the contraceptives for free to themselves.
Liberal Democrats are only fooling themselves in thinking the public is too stupid to understand the difference between not requiring religious institution employers to pay for free contraceptives when that would violate their religious beliefs, and banning contraceptives. Speaking in opposition to the legislation proposed by Sen. Roy Blunt (R-MO), which would have exempted religious institutions from the Obamacare birth control mandate, Sen. Charles Schumer (D-NY) said, as quoted by Jonah Goldberg in his March 7 column, “Let’s admit what this debate is really about and what Republicans really want to take away from American women. It is contraception.” Sen. Frank Lautenberg (D-NY) helpfully added that the GOP wanted to return to “the Dark Ages…when women were property that you could easily control, even trade if you wanted to.” Both Schumer and Lautenberg have some foundation for thinking their constituents are stupid, since majorities repeatedly vote for them.
Goldberg notes as well the Obama campaign propaganda that “‘if Mitt Romney and a few Republican Senators get their way, employers could be making women’s health care decisions for them’ and require that women seek a permission slip to obtain birth control.” But if the Blunt bill had passed, women would not suffer anything they didn’t experience in the Dark Ages of January, 2012.
The great majority of the public will have no trouble agreeing with Goldberg in recognizing this as “shockingly dishonest propaganda being peddled by leading Democrats and media outlets about the [supposed] Republican push to ‘ban’ contraception.”