Women's rights

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 Richard Thompson Ford, George E. Osborne Professor of Law at Stanford University

Since the 1960s, the ideas developed during the civil rights movement have dominated American thinking about social justice. Courts and governmental agencies enforce legal prohibitions against discrimination; private businesses and universities follow suit, fashioning their own diversity policies. Even private individuals think about race relations in civil-rights terms: we aspire to the ideal of “colorblindness” and condemn the evils “discrimination” and “bias.” American civil rights legislation has been a model for other nations and the American civil rights movement has inspired important struggles against injustice, such as the South African anti-apartheid movement and the international movement for gay rights.

When it comes to outright discrimination and overt prejudice, civil rights have been an astonishing success. But today’s most serious social injustices aren’t caused by bias and bigotry. For instance, in the context of race, they stem from segregation — a legacy of past racism but not by and large the result of ongoing discrimination — and the many disadvantages that follow from living in isolated, economically depressed and crime-ridden neighborhoods. In my new book, Rights Gone Wrong: How Law Corrupts the Struggle for Equality, I show that civil rights litigation and activism have hardly made a dent in these formidable obstacles. In fact, civil rights thinking can distract attention from the real problems, emphasizing dramatic incidents that aren’t good examples of the larger injustices.

Civil rights haven’t been a panacea for the illness of social prejudice, but like a patient who keeps popping pills because the prescription isn’t working, we’re now at risk of an overdose. Civil rights litigation has exploded since the 1970s, far outpacing the growth in civil litigation generally. In 1991 the federal courts heard about 8,300 employment discrimination cases; in 2000 they heard over 22,000. Civil rights laws, properly framed and limited, serve a vital social purpose, but too many civil rights can be as bad as too few, and an overly aggressive civil rights regime can be as destructive as an ineffectual one.