Publius Speaks

Publius Speaks
Become A Follower

Saturday, February 18, 2012

Women’s Health or Religious Freedom: Hiding the Real Issue

The latest “flap” over heath care law is an example of a controversy being defined that doesn’t quite get at all the underlying issues.

Apparently, most of the protagonists, and certainly the media analysts, were satisfied with the issues as presented in the title of this piece.  So let’s take a look at them.

The Obama administration announced on Jan. 20 that Catholic hospitals and other religious institutions would have an extra year to comply with a new requirement that  health plans must provide contraceptive benefits at no cost to their members. The extra year to comply was no consolation to Catholic bishops, who were infuriated that the law required most health plans to eventually offer free contraception.  They argued that it amounted to forcing members of the church, which has long opposed birth control, to offer it or pay for it in health plans. The coverage of contraceptive services could include abortion-inducing drugs, the church said.

Before going any further, it is important to know what the new rule actually said.  Otherwise, the issues get clouded by rhetoric that has little or nothing to do with the real issues (for instance, it clearly forbids coverage of “abortifacient“ drugs).  The Rule is summarized as follows:

Contraception and contraceptive counseling: Women will have access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling. These recommendations do not include abortifacient drugs. Most workers in employer-sponsored plans are currently covered for contraceptives. Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

So, let us be clear: we are concerned here with women having access to important preventive services, including contraceptives and contraceptive counseling.  It is not about attacks on religion, or condoning abortions, or  forcing individual Catholics, or the Roman Catholic Church, to change their beliefs.  The rule does not apply to houses of worship, but does apply to church-affiliated hospitals, colleges, and social service agencies, most of which receive federal funding to aid their operations.

Kathleen Sebelius, President Obama's secretary of Health and Human Services (HHS),  said the rule, while allowing some exceptions and giving church-linked institutions a year from Aug. 1 to comply, is designed to ensure that women have access to birth control without co-pays or a deductible.  "Scientists have abundant evidence that birth control has significant health benefits for women and their families," she also said. "It is documented to significantly reduce health costs, and is the most commonly taken drug in America by young and middle-aged women."

On the other hand, Alexander Sample, Bishop of Marquette, Mich., in one of the letters read to local Catholics, said: “Almost all health insurers will be forced to include those 'services' in the health policies they write. And almost all individuals will be forced to buy that coverage as a part of their policies."  Critics of the move said it puts many employees at Catholic hospitals in the position of performing services that would violate their conscience.  The U.S. Conference of Catholic Bishops fiercely opposed the new rule, which it said "forces religious employers and schools to sponsor and subsidize coverage that violates their beliefs" and "forces religious employees and students to purchase coverage that violates their beliefs."

“Some have noted that HHS included a religious exemption in the new mandate. But to be eligible for this exemption, an organization must meet four strict criteria, including the requirement that it both hire and serve primarily people of its own faith. Catholic hospitals, for example, would have to eject their non-Catholic employees and limit their patients to Catholics in order to qualify for the exemption.”  (from Statement by The Most Rev. Kevin C. Rhoades, bishop of the Fort Wayne-South Bend Diocese)

The HHS rule was also challenged in Congress, where Sens. Marco Rubio, R-Fla., and Joe Manchin, D-W.Va., sponsored legislation that would restore the option for religious organizations to opt out of coverage.  "This is about whether the government of the United States should have the power to go in and tell a faith-based organization they have to pay for something that they teach their members shouldn't be doing. It’s that simple," Rubio said.

Advocates for the rule say the measure is an advance for women's reproductive rights, pointing to a study by the Guttmacher Institute, a nonprofit group that studies sexual and reproductive issues, which reported last year that nearly all sexually active U.S. women had used birth control. That includes 98 percent of Catholic women, the study reported.

David Axelrod, a senior adviser to President Barack Obama, said the administration was willing to work with Catholic universities and hospitals to find a way for them to cover contraception without abridging "anyone's religious freedom."  So, on Friday, February 10, 2012, President Obama announced a compromise that would ensure that women’s access to free contraception would be maintained and that “religious liberty” would also be protected by ensuring that workers for religious-affiliated institutions would be able to get free contraception covered directly by insurance companies.  Although the Administration had originally given itself a year to work out the details of birth control coverage, the President acknowledged that the situation could not wait that long and had to be addressed swiftly. 

In spite of all the debate, it is my contention that not all the issues were clearly addressed in-depth. Here are two thoughts that need further exploration, in my opinion.

1)  Churches have certain obligations in a pluralistic society, one of which is the constraint of a tendency to want to establish their beliefs, doctrines, practices and dogmas as the law of the land, or at least as the prevailing opinion.

--It is incumbent upon religions and religious institutions not to push its beliefs and practices on others; only on its own members.  The separation of church and state means, for example, that prayer in schools is unconstitutional because no matter how it is done, prayer is a religious practice, usually done in a format of a particular faith or sect.   No religion or sect should be able to impose its own beliefs or practices upon others (and prayers , in whatever form, are theological statements of belief)
--Likewise, the dogma that contraception is against God’s will for His creation, is a statement that  is totally unacceptable to millions of our citizens 
--If a church or agency of the church accepts federal funds, it becomes a contractor of the government (and of the people) and cannot expect to set the rules as though there was no  separation of church & state
--As a provider of tax-supported services, a religious institution should not be allowed to  use religious doctrine as an excuse to deny certain services that are mandated for its clients or employees

2)  Moreover,  it is most important to realize that Government should not establish a religion, or any particular dogma of it, in its services and operations.  The Catholic Church is trying to get the government to make an exception for its particular beliefs.  John F. Kennedy had the answer for that when he said that no cleric or pope would set government policy under his administration

Forgotten in this heated rhetoric about First Amendment rights is the very important declaration of the 1st amendment (in that phrase that comes before that of the “free exercise of religion”) and that is: “Congress shall make no law respecting an establishment of religion…” The development of this over time through legislation and Court decisions has led us to a society in which separation of church and state is of tremendous consequence.

It is my very strong opinion that Congress (and past Presidents) have skirted, ignored, undermined, and completely overturned this very important part of our Constitution.   In my opinion:  Any money given by government to religious groups for any reason, is an establishment of that religion and is a violation of this provision -- no matter what the Supreme Court may say for they have been complicit in the undermining of this constitutional principle.   It doesn’t even matter whether all religions are treated the same, and all receive funds, for that is still an establishment of religion, as opposed, for instance to those who have no religion.  It violates the right to have no favoring of (any) religion at all.

Traditionally, religiously affiliated non-profits such as Catholic Charities, the Jewish Federation and Lutheran Social Services had to set up separate, secular non-profits in order to receive federal funds and were restricted in how much religious content their programs could have.

However, then-Sen. John D. Ashcroft (R-Mo.), added something called “charitable choice” to the 1996 Welfare Reform Act to ensure that faith-based organizations were not prevented from applying for federal welfare-to-work funds because of their religious character. Later, Congress extended the concept to some federal block grants and drug treatment funding.  This was the “foot in the door.”  From there it was a cake-walk to diminution of the establishment clause, and on to the present situation where the RC Church has the audacity to assert that the government must respect their opposition to both birth control and abortion.  In my opinion, while there is room for government respect of religious belief, there is no room for funding of that belief, directly or indirectly.

Under “charitable choice“, religious groups no longer had to form secular non-profits to receive federal money. And they could hold voluntary prayers, display religious icons and use "religious principles and concepts" in counseling and providing services. However, government money could not be used for sectarian worship, instruction or proselytizing.  “Charitable choice” also allowed faith groups an exemption from federal bans on religious discrimination in hiring. 

Religious groups could not require people in federally-funded programs to participate in religious activities nor could they discriminate in providing social services based on religion. Anyone uncomfortable in a faith-run program was legally entitled to a secular alternative.  The Rev. Emory Searcy, national organizer for Call to Renewal, a Washington-based ecumenical anti-poverty coalition, said his group still encourages congregations to form separate nonprofits to maintain their independence. Perhaps in advancing their argument against government in this instance, the Catholic Bishops and clergy have unwittingly raised the issue of whether their non-worshipping institutions (and those of other faiths) should be required to return to that standard.

It was George W. Bush who followed up on “charitable choice” to establish his “faith-based initiative.”  He said his administration would put the federal government ''squarely on the side of America's armies of compassion'' and he added: ``The days of discriminating against religious institutions simply because they are religious must come to an end''  (an amazing statement, since the establishment clause essentially requires the government to discriminate against all religion in order not to favor any one particular manifestation of it).  But Bush also insisted his faith-based plan to give religious groups a greater role in curing social problems like homelessness, alcoholism and drug addiction, by letting them compete for government grants, would not cross the constitutional boundary separating church and state.  “As president, I'm interested in what is constitutional and I'm interested in what works,'' he said.

As was so often true, Bush missed the main point: giving government money to religious institutions is an establishment of religion, even if the institution is involved “in curing social problems,” and even if all institutions - religious and non-religious -- have equal opportunity to obtain the government funds.  The Government is still enabling religious institutions to establish religious influence with non-members.  The government should simply not be in the business of monetarily supporting religious organizations in any form of proselytizing.  And, that is a major problem here with the Catholic Church and others who support them on the question of contraception:  the Government is using the people’s money to support religious institutions with certain beliefs about abortion and contraception that run counter to the beliefs of others (and to the law of the land), and who do not shrink from trying to force their beliefs upon the rest of the Republic, utilizing the very funds provided by the government. 

If the Catholic Church (or Evangelicals) want to advocate their religious views in a pluralistic society, they are free to do so,  but let them give up receipt of government funds in the pursuit of their enterprise.  That is the price of religious liberty and the price of separation of church and state.

The Catholic Church has accused the government of an attack on religious liberty in this case, but the truth is that the Church is advocating the diminution of others’ liberties by trying to overlook, and to veto, the separation of church and state by accepting government aid while (and in support of) spreading its activities and its beliefs.

The “faith-based program” of George W. Bush was ill-conceived from the beginning.  He tried to walk a line that one cannot walk under our constitution.  He was right to say: “Government, of course, cannot fund, and will not fund, religious activities.”  He should have stuck with that view, because that is the essence of separation of church and state and the non-establishment of religion.  Non-discrimination against religious agencies doing social work, or putting them on an equal footing with non-religious agencies who do the same work, are not valid reasons for overturning the concept of separation or establishment.  They are simply rationalizations for aiding and abetting certain religious groups.

A reader commenting in The New York Times, said: "The honorable thing for Catholic universities to do under these circumstances is to refuse to accept federal aid, in order to be true to their principles. If these universities do not refuse federal aid, then they should abide by federal rules."

Another reader commented: “Catholic universities are free to pursue their religion without federal aid, and in this case, should do so and celebrate their freedom.”

It is time for the American Catholic Bishops to advocate for a return to the Constitutional provision of no establishment of religion and its legal interpretations leading to separation of church and state.  Let them affirm their beliefs by giving up government aid for their institutions and programs -- including hospitals, Catholic Charities, universities, etc. -- if they do not agree with mandates by government that disagree with their doctrines or practices. Unfortunately, they are disparaging government restriction of their religious liberty while, at the same time, freely accepting government funding.  Strong and true advocates would protest government action by giving up government funds!  If they cannot voluntarily do that,  consideration should be given to the gradual withdrawal of federal funds from all religious institutions so that we can begin to reassert the primacy of the establishment clause in the 1st Amendment!  (Since that is probably not going to happen, a return to separate secular non-profit arms of religious organizations that seek federal funding is an acceptable alternative).

The Obama administration’s compromise on the issue of contraceptive coverage and religious liberty is certainly one way around this controversy, taking both the government and the Catholic Church off the hook. Bill Moyers, writing in an op-ed piece on February 16, said this about the compromise:  “So here we are once again, arguing over how to honor religious liberty without it becoming the liberty to impose on others moral beliefs they don't share. Our practical solution is the one Barack Obama embraced the other day: protect freedom of religion -- and protect freedom from religion. Can't get more American than that.”

However, the issues of no establishment of religion and separation of church and state remain, and must eventually be carefully addressed.  This is the “elephant in the room” that has grown larger and larger as religious organizations continue to talk out of both sides of their mouths, viz., ‘don’t interfere with our beliefs but keep the government money flowing.’  The establishment of religion by government funding leads inevitably to a conclusion on the part of religious organizations that they have been given the right to make protection of their beliefs the main issue rather than the primary issue being: how do we prevent government establishment of any set of religious beliefs or practices, while still supporting free exercise of religion?