Reproductive freedom

by Nicole Flatow

Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

“No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

 "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

“One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote:

By Kate Michelman, President Emerita of NARAL Pro-Choice America and author of With Liberty and Justice for All: A Life Spent Protecting the Right to Choose. 

When Roe v Wade became law of the land, we who had fought for so long believed it would be the threshold of broader protection of women’s health — of women’s rights. In our exuberance, we thought that we could establish abortion in its proper context, along the continuum of women’s reproductive health decision-making. We thought we could move on to other pressing health and equality issues, including bringing sexuality education to adolescents throughout the country — to help our young people understand the complexities of sexuality, of contraception and of the serious responsibility of childbearing.

That was almost forty years ago.

In the meantime we’ve learned the numbing lesson that what Justice Harry Blackmun wrote was not close to the final declaration of women’s reproductive liberty. It was not the beginning of the public’s embrace of educating our young to enable them to make responsible and informed decisions regarding sex and reproductive health. And it was certainly not an opening to the broad cast of reproductive options.

Instead of opening a dialogue that might ultimately lead to wide consensus about healthy reproductive choices, healthy sexuality, and healthy families, we have instead witnessed religious and culturally conservative voices demanding reversal. We are confronted with the word “abortion” writ red on walls wherever we turn. The opponents of abortion don’t want to discuss the social conditions that led to that decision. They talk of family values but those values seem not to include compassion, logic, or the willingness (ironically) to reach some obvious common ground with those of us who have long struggled to lessen the need for abortion by reducing unintended pregnancies.