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Will the Religious Right Succeed? An Examination of the Hercules Ruling on the Birth Control Benefit

11:45 am in Uncategorized by RH Reality Check

Written by Imani Gandy for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

In May of this year, Jan Brewer signed into law Arizona HB 2625, a bill that would allow employers to opt out of the policy under the Affordable Care Act ensuring that all insurance policies cover preventive health care services for women, including contraception, without a co-pay.

It’s a simple concept, really: contraception is health care. Health insurance plans offer coverage for health care. Ergo, health insurance plans should offer coverage for contraception. Ta da!

Laws like Arizona HB 2625 undercut this simple concept. According to supporters of laws like HB 2625, contraception is of the devil. And because the Catholic Church’s official position on contraception is that it is sinful, the Church seems personally offended at the notion that any employer be required by the government to exist in the same space as women who are using their hard-earned wages to pay for contraceptive and other health care services that are anathema to church doctrine.

A couple months ago, I published a piece that described what I saw as a dangerous slippery slope regarding Arizona HB 2625 (and laws like it), which permit employers to claim some sort of religious affiliation and thus excuse themselves from providing critical health-care services to women employed by them.

In that piece (and in the lively discussion that followed in the comment section), I noted that the exemptions provided by the Arizona legislation for “religiously-affiliated employers” went far beyond the exemptions provided by the Obama Administration to religious institutions, insofar as the Arizona law permits any employer to, essentially, pinky swear that its business is steeped in Jesus.

HB 2625 provides as follows:


The law defines “religiously affiliated employer” as follows:

(i) The entity primarily employs persons who share the religious tenets of the entity. (ii) The entity primarily serves persons who share the religious tenets of the entity.
(iii) The entity is a nonprofit organization as described in section 6033(a)(2)(A)(i) or (iii) of the internal revenue code of 1986, as amended.

Plainly, the limitation set forth in subsection (b) is no limitation at all. Any entity can change or amend its articles of incorporation relatively easily — it doesn’t take a lot of imagination. Indeed, when I first wrote about the Arizona law, I suggested that companies would rush to make their companies more Jesus-based in order to take advantage of religious exemptions, and to avoid being forced by Big Government to provide full health insurance coverage for women.

While my concern at the time related only to the Arizona’s contraception opt-out law, it seems that my prediction of what would soon come to pass is proving correct.

On Friday, a Colorado district court judge granted a preliminary injunction in a lawsuit brought by an air conditioning company and its owners against the Obama Administration. In the lawsuit, plaintiffs*** complain that they have “a sincere conscientious religious objection to providing coverage for abortifacients, contraception, sterilization and related education and counseling,” and that a policy requiring coverage of birth control “constitutes government-imposed coercion on Plaintiffs to change or violate their sincerely held religious beliefs.”

Here are some relevant allegations from Plaintiffs’ complaint. (Pardon the extensive quote, but it’s important to read exactly what air conditioning companies and the like are claiming about the inherent Christ-like nature of their small businesses — so read it!):

28. The Newlands are practicing and believing Catholic Christians. They strive to follow Catholic ethical beliefs and religious and moral teachings throughout their lives, including in their operation of Hercules.

29. The Newlands sincerely believe that the Catholic faith does not allow them to violate Catholic religious and moral teachings in their decisions operating Hercules Industries. They believe that according to the Catholic faith their operation of Hercules must be guided by ethical social principles and Catholic religious and moral teachings, that the adherence of their business practice according to such Catholic ethics and religious and moral teachings is a genuine calling from God, that their Catholic faith prohibits them to sever their religious beliefsfrom their daily business practice, and that their Catholic faith requires them to integrate the gifts of the spiritual life, the virtues, morals, and ethical social principles of Catholic teaching into their life and work.

30. The Catholic Church teaches that abortifacient drugs, contraception and sterilization are intrinsic evils.

31. As a matter of religious faith the Newlands believe that those Catholic teachings are among the religious ethical teachings they must follow throughout their lives including in their business practice.

32. Consequently, the Newlands believe that it would be immoral and sinful for them to intentionally participate in, pay for, facilitate, or otherwise support abortifacient drugs, contraception, sterilization, and related education and counseling, as would be required by the Mandate, through their inclusion in health insurance coverage they offer at Hercules.

33. Hercules’ mission statement includes the commitment that “We will nurture and maintain the culture of a family owned business in which our employees grow financially, intellectually, emotionally and spiritually.”

34. The Newlands have, for a substantial period of time to the present, operated Hercules in promotion of Catholic ethical principles in a variety of ways including but not limited to the structuring of their health insurance plan.

35. Under the Newlands’ direction Hercules has donated hundreds of thousands of dollars to Catholic parishes, schools, evangelical efforts, and charitable causes averaging nearly$60,000 every year since 2008.

36. Since 2010 the Newlands’ have been implementing within Hercules a program created by the Spitzer Center for Ethical Leadership, by which companies build their corporate culture based on Catholic principles. Through this program, the Newlands have regularly trained their management to implement principles based on plaintiffs’ religious ethical beliefs.

In granting the preliminary injunction, the Court had to take into consideration two factors as a matter of law. One, whether or not plaintiffs were in danger of suffering irreparable harm, and two, whether or not plaintiffs were likely to succeed on the merits of their case (in other words, whether or not the ultimate conclusion of the case would be in favor of the company and its owners.)

On both points, the Court found in plaintiffs’ favor. As to the threat of irreparable harm, plaintiffs would be required to begin providing contraception in its health plan on November 1, 2012 and were therefore in danger of suffering of irreparable harm. No surprise there. (A Nebraska district court judge recently dismissed one of these contraception opt-out lawsuits, but only did so because the Plaintiff-employer was not due to adhere to the mandate until August 2013; the court found that there was no immediate threat of irreparable harm.)

The Court’s reasoning as to the second factor — whether or not plaintiffs are likely to succeed on the merits — is what is troublesome, to put it mildly.

Plaintiffs are claiming that the contraception mandate violated their rights under the First Amendment and under the Religious Freedom and Restoration Act (RFRA). Under RFRA, the legal inquiry goes something like this:

1. When “a person refuses to provide health insurance that covers contraceptives and abortifacients, is that an “exercise of religion?”

2. Does the contraception mandate “substantially burden” such exercise of religion?

3. Does the burden of such exercise of religion further a “compelling governmental interest?”

4. Is the burden of such exercise of religion the “least restrictive means” of furthering a compelling governmental interest?

The court answered questions 1 and 2 in the affirmative, and 3 and 4 in the negative.

Now, here’s where it gets tricky.

Of course, promoting women’s public health is a compelling governmental interest, and the Court noted as much. But RFRA requires an examination of the burden as it relates to the actual person being burdened (or to the corporation being burdened, as the case may be — corporations are people, my friend!). Just because the mandate burdens all similarly-situated parties doesn’t mean that it is constitutional as applied to Plaintiffs specifically. The government must demonstrate that burdening Plaintiffs furthers a compelling interest.

And this is where the problem arises: How can the government demonstrate that burdening Plaintiffs furthers a compelling interest when it exempted 190 million health plans from complying with the contraception mandate? An even more difficult question is this: If providing preventive health care to women and doing so by uniformly applying this mandate to all employers irrespective of religious background is so compelling, then why exempt so many health plans?

From a legal standpoint, the Obama Administration may have difficulty answering those questions. Certainly, the Administration’s actions make sense from a political standpoint. Given the fact that the Catholic Church has its fingers in our contraceptive pie, the Administration had to work with the Bishops or risk having the whole deal fall apart. (It seems to be falling apart anyway; the Catholic Health Association reneged on their initial agreement that the mandate as revised by the Administration was suitable.) In other words, by working with the Catholic Church in order to craft this mandate in such a way that the Catholic Church would not bitch about it, the Obama Administration may have shot itself in the foot, because guess what? The Catholic Church is bitching about it.

Ultimately, pointing out that the 190 million exempted plans undercuts the notion that the mandate is necessary and must be uniformly applied is a good tactic on the part of contraception mandate opponents. It forms the basis of a solid legal argument, I think. The only counter-argument that currently comes to mind is that the compromises that the Obama Administration made with religious organizations, and the exemptions provided to them were necessary as a practical matter in order to pass the legislation in the first place. In other words, the interest being served by this legislation is so compelling that undercutting it slightly in order to promulgate it was warranted.


Doesn’t sound like as solid of an argument, does it?

As to the whether or not the contraception mandate is the “least restrictive” means of furthering the “compelling governmental interest”  – as in “ensuring that women have access to preventive care including contraception” — the Court said it wasn’t.

The Court found that less restrictive means existed; for example, government-provided contraception would ensure that women have access to contraception and would not substantially burden Plaintiffs’ exercise of religion. (At least until the Catholic Church decides that merely being governed by an institution ensuring access for sluts to contraception without a co-pay is an “intrinsic evil.”)

Obviously, the political landscape is such that any sort of socialized women’s healthcare is a pipe dream. Wingnuts are already losing their collective shit because they think women are currently demanding that the government provide free contraception: “Why should I have to pay for you to have sex!” (Of course, women simply want coverage for contraception in health plans that they pay into but don’t try to argue against conservafacts — you’ll just go mad.)

Imagine the outcry if government-provided birth control became an Obama Administration policy goal because contraception access was stymied by religious zealots whining about freedom of religion for themselves (and their corporations.)  “Obama is a pimp!” I can hear it already. 

These are the sorts of legal arguments that we are going to be seeing. Corporations will claim that they are people and therefore entitled to the same First Amendment rights to freedom of religion that actual living breathing people do. Corporations will claim that they are “person[s]” to which RFRA applies. Meanwhile actual persons are going to continue to be stripped of their rights as persons.

*** Notably, the preliminary injunction was granted to plaintiffs. Plaintiffs in the case are the air conditioning company and the owners of that company. Whether or not a corporation’s free exercise of religion is now a right that must be protected is a subject for another post, the mere thought of which causes me great distress.

[You can read my mark-up of the Court's order here on Scribd]

Using Special Powers, Brazil’s President Passes Law Requiring Compulsory Registration of All Pregnant Women

8:17 am in Uncategorized by RH Reality Check

Written by Beatriz Galli for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

In the dead of night on December 27, Brazilian President Dilma Rousseff enacted legislation that will require all pregnancies to be registered with the government. Provisionary Measure 557 (PM 557) created the National System of Registration, Vigilance and Monitoring Women’s Care during Pregnancy and Post Childbirth for the Prevention of Maternal Mortality (National Registration System).

She used a provisionary measure—intended only for urgent matters—that allows the president to pass a law without congressional approval. Congress only gets to debate and approve the law once it has been enacted. Rousseff claims that PM 557 will address Brazil’s high rates of maternal mortality by ensuring better access, coverage and quality of maternal health care, notably for high-risk pregnancies. Both public and private health providers must report all pregnancies—providing women’s names—with the National Registration System so the state can then track these pregnancies, from prenatal to postpartum care, presumably to evaluate and monitor health care provided.

How does simply monitoring pregnancies reduce maternal mortality? There is no guarantee that care will be available to all pregnant women and no investment in improving health services included in the legislation.

And what’s the benefit to women? PM 557 does authorize the federal government to provide financial support up to R$50.00 (roughly US$27) for registered pregnant women for their transportation to health facilities for pre-natal and delivery care. However, to receive the stipend women must comply with specific conditions set by the state related to pre-natal care. Let’s face it, that paltry sum may not even cover the roundtrip for one appointment depending on where a woman lives.

In fact, PM 557 does not guarantee access to health exams, timely diagnosis, providers trained in obstetric emergency care, or immediate transfers to better facilities. So while the legislation guarantees R$50.00 for transportation, it will not even ensure a pregnant woman will find a vacant bed when she is ready to give birth. And worse yet, it won’t minimize her risk of death during the process.

The biggest problem with maternal mortality in Brazil is not access to health-care services but rather the quality of health care in public health facilities. The majority of preventable maternal deaths actually take place in public hospitals, disproportionately affecting poor women, women who live in rural areas, youth and minorities.
Last but certainly not least, MP 557 violates all women’s right to privacy by creating compulsory registration to control and monitor her reproductive life. In fact, it places the rights of the fetus over the woman, effectively denying her reproductive autonomy. A woman will now be legally “obligated” to have all the children she conceives and she will be monitored by the State for this purpose.

It’s unclear why Rousseff sought to enact this legislation so quickly and with so little opportunity for debate or public opinion. What is clear though is that women’s real interests and health needs are not the focus here—just their uteruses.

What New Legal Obstacles to Safe Medication Abortion in Ohio Mean for Women

10:55 am in Uncategorized by RH Reality Check

Written by Toni K. Thayer for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.


The legal landscape for abortion is changing rapidly in Ohio, as it is in many states. Our governor recently signed into law a measure requiring as-yet-unspecified “viability testing” on women seeking abortions past 20 weeks.  At least half a dozen other restrictive measures were recently passed or are on the horizon, including the “Heartbeat Bill,” which seeks to outlaw abortions as early as 6 weeks (before many women know they are pregnant). It’s unclear what this will all mean for clinics and for women.  At my clinic, Preterm, the largest independent abortion provider in the state, women are calling us daily asking if abortion is still legal.

At the same time, Ohio clinics and our patients are now dealing with the effects of a restrictive law passed several years ago. Caught up in court challenges until last spring, this law dictates the way medication abortions—induced by a combination of mifepristone (mife), also known as RU-486, and misoprostol (miso)—must be performed in Ohio. It requires doctors to use an outdated FDA regimen, established during trials in the 1990s, instead of a lower-dose evidence-based regimen that has been used safely and effectively all over the U.S. for more than a decade.

Essentially, the FDA regimen shortens the time a medication abortion can be used from 63 days to 48 (or from 9 weeks of pregnancy to just under 7), triples the amount of mife used (and at $90 a pill that adds up!), and increases the required number of clinic visits from three to four, so that a doctor can watch the patient swallow the miso at the clinic rather than allowing her to dissolve it inside her cheek at home.

Our First Case

The first medication abortion patient we saw at Preterm after the new regulations went into effect was exactly one day over the new legal limit for taking the combo of pills that is used to end an early pregnancy without surgical intervention.   Read the rest of this entry →

Women’s Reproductive Rights Under Threat in Colombia

10:32 am in Uncategorized by RH Reality Check

Written by Hanna Hindstrom for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Cross-posted with permission from The Women’s News Network (WNN).


At 11 years of age, Nina was raped by her stepfather. Traumatized and pregnant, she sought an abortion. But every doctor she met claimed conscientious objection and refused. She was forced to travel 35 miles to another city, where she eventually tracked down an obstetrician willing to help.

She was one of the lucky ones.

Despite a landmark ruling five years ago – when Colombia’s Constitutional Court decriminalized abortion in cases of rape, fetal abnormality or to save the mother’s life – less than 0.5 percent of procedures are carried out legally each year. Many doctors simply turn girls like Nina away.

There is endemic confusion about the status of the law, especially the rules for conscientious objection, coupled with a widespread reluctance to obey it. Unsafe abortion remains the third leading cause of maternal deaths in a country where, according to government figures, over 300,000 take place each year.

Upon its inception the law has been the target of an aggressive anti-choice campaign, led by conservative political forces and supported by the Catholic Church. These forces are now threatening to unravel the little progress made.

Since coming into office in 2009, the Procurador-General, Alejandro Ordonez – the official appointed to protect the constitution and promote human rights – has led a vociferous campaign to dismantle the legislation. Read the rest of this entry →

Brownback Strips At-Risk Infants of Access to Health Care While Spending Millions on “Faith-based” Initiatives

12:07 pm in Uncategorized by RH Reality Check

Written by Kari Ann Rinker for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The State of Kansas has a health care crisis that it should be addressing, but instead the Brownback administration is tied up restricting women’s access to low cost birth control and abortion care. The crisis that I refer to is this fact according to the latest data from the Annie E. Casey Foundation:

Kansas dropped to 40th in the country in infant mortality, and to worst in the nation for African-American infant mortality, said Christie Appelhanz, vice president of public affairs of Kansas Action for Children in Topeka.

Ms. Appelhanz explains:

We have to invest in our kids. We need to be protecting the crucial supports — nutrition, early education, college savings — anything we can do to be sure kids are growing up healthy.  I think it’s important that children have access to food stamps, quality education such as Head Start and Early Head Start and workforce development.

Governor Brownback’s budget, which he unveiled in January 2011, drew much criticism due to drastic cuts proposed for Head Start in Kansas.  Their funding remained uncertain through the entire legislative session, until, after much public criticism it was finally restored.  But the problem doesn’t begin and end with Head Start funding.

This administration is also upending the Kansas Department of Social and Rehabilitation Services (SRS).  This agency is responsible for child protective services, child support enforcement, and child, adult and family well being services within the state of Kansas.  The state was on track to close 9 service centers, citing agency cost savings.  Public outcry has prevented one of those closures.  The City Council of Lawrence, Kansas has agreed to pick up the state’s tab and fund their own office to serve the most needy within their community. Yet, somehow the administration believes this agency can afford new and expensive “faith based initiatives” programs. For example, chief of staff Jeff Kahrs is making $100,000 a year in a new position. A deputy secretary leading a new faith-based initiative, Anna Pilato, is making $97,500.

They can also afford $13,000 closed door meetings to discuss their new push for faith programs within the state, where it was decided that polygamy is more in line with traditional values than same sex marriage.  Our Governor also is comfortable with applying for a $6.6 million dollar grant to promote marriage, while rejecting federal money for health care reform within our state and proceeding with the SRS office closures.   

Governor Brownback is promoting a “culture of life” from his mansion in Topeka and thinking of new ways to pimp out poverty stricken single mothers within the state while what we really need are healthy, empowered mothers, because healthy mothers lead to healthy children.  Health care, childcare assistance and educational opportunities should be the Governor’s focus.  Instead, the hypocrisy runs rampant and we wait for God and a big strong man to come along and save us from feminine handicap, meanwhile an increasing number of children are dying in the state of Kansas.

New Jersey’s Governor is Taking His Time on a Rape Kit Bill

9:12 am in Uncategorized by RH Reality Check

"Chris Christie"

"Chris Christie" Governor of NJ, by Marissa Babin on flickr

Written by Martha Kempner for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

In March, the New Jersey State Senate overwhelmingly passed a bill to prevent sexual assault survivors from being charged for the rape kits used to collect forensic evidence.  The Assembly passed the measure in June. Months later, however, the bill remains “under review” on Governor Chris Christie’s desk prompting many advocates to ask what is taking him so long and some to start a petition demanding he take action.

Under federal law, health care providers must be reimbursed for the cost of these exams and the collection of evidence. They are supposed to look to government agencies for that coverage but bills are often sent to the assault survivor “due to administrative errors or attempts to get payment from a victim’s insurance company.”

The legislation that passed in New Jersey would prevent direct billing for any “routine medical screening, medications to prevent sexually transmitted infections, pregnancy tests and emergency contraception, as well as supplies, equipment, and use of space.”

Though it’s clear from his record (which includes “using a line-item veto to block funding in the state budget for clinics that provide family-planning services”) that woman’s rights and reproductive health are not a high priority for the Governor, it really is hard to understand why he’s dragging his feet on this bill.