Written by Bridgette Dunlap 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 Obama administration is considering who should be exempt from providing contraceptive coverage under the Affordable Care Act.

The Obama administration is accepting comments from the public until April 8th on the Notice of Proposed Rule-Making for the birth control benefit or contraceptive coverage rule. The proposed rule amends the exemption for houses of worship and their affiliates and adds an accommodation for other non-exempt non-profits opposed to birth control.

The accommodation requires that insurance companies offer separate contraceptive coverage directly to the employees of objecting organizations at no additional cost. To take advantage of the accommodation, an organization need only self-certify to its health insurer or plan administrator that it is a non-profit opposed to some of the required contraceptive services and that it “hold[s] itself out as a religious organization.”

It is not enough for an institution seeking special treatment to simply assert that it holds itself out as religious. I expect the Obama administration is loathe to define what it means to be a religious organization or police whether an institution is in fact holding itself out as such, and rightly so. Nevertheless, the institution should have to make a statement describing how it holds itself out as religious and what that religiousness entails. This statement should be made easily available to the public and organizations should have give to notice of it to those with whom it seeks to contract, such as employees, students, patients, and funders.

This is necessary due to a pattern of religiously-affiliated institutions characterizing themselves one way when recruiting or seeking public funding and another when demanding to be exempt from laws that govern secular institutions. The trend in First Amendment Establishment Clause jurisprudence has permitted increasing public funding for religious organizations. This means we need whatever protections the free market can provide individuals from the imposition of religion by institutions active in the public sphere. We can only avoid involvement with institutions that will discriminate on the basis of religious control if we know which institutions those are.

To understand some particularly flagrant examples of religiously-affiliated institutions trying to have it both ways, we turn to a bit of state constitutional law. Over 37 state constitutions contain explicit prohibitions on the use of public money for religious institutions or instruction. New York is among them and its Constitution prohibits public funding of any educational institution “wholly or in part under the control or direction of any religious denomination.”

In the mid-60s many private universities throughout the country were in dire financial straits. New York sought to rescue its private universities with taxpayer funding through a program known as “Bundy aid.” However, giving public funds to religiously-controlled universities was clearly unconstitutional. So religious universities, particularly Catholic ones, underwent re-organizations to separate themselves from the control of their founding religious orders and other church authorities and endeavored to become more suitable places for people of any or no faith to work and study. By becoming non-sectarian, while maintaining only a religious affiliation, they qualified for public funding.  The motivation behind secularization was not exclusively financial, but part of a larger attempt by Catholic universities to strengthen their academic and intellectual legitimacy.

By accepting funds each year, a New York college makes a representation to the state that it is an independent institution free from religious control. Despite this, a number of universities receiving Bundy aid, have asserted that they are church-controlled in order to be free from various generally applicable laws.

In 2010, adjunct professors at Manhattan College sought to unionize. To block them, Manhattan College claimed it was not subject to the jurisdiction of the National Labor Review Board because it is “church-operated.” Among the evidence on which the NLRB board relied in rejecting the claim Manhattan College holds itself out as a religious institution was the fact that Manhattan College deliberately eliminated church control to get Bundy aid and continues to claims to be non-sectarian by accepting it.

In 2009, St. John’s University argued it was exempt from the Americans with Disabilities Act because it is “controlled by a religious organization.” Prior to that, St. John’s successfully argued it was eligible for an exemption from New York’s Human Rights Law for the same reason. In agreeing that St. John’s is controlled by a religious organization, the Court did not take notice of the fact that St. John’s represents to the state that it is not controlled, even in part, by a religious organization in order to get taxpayer funding each year.

Multiple universities that receive Bundy aid have health policies that are controlled by the U.S. Conference of Catholic Bishops through the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.  The Directives are 43 pages long and as detailed as a statute. These schools tend to be less than forthcoming as to how the Directives are implemented in school policy, and some fail to give notice that the Directives control at all.

For a further example of conflicting self-characterizations, we now turn to the permissibility of funding under the federal Constitution. In 2000, the University of Notre Dame received a $500,000 federal grant that funded a program that included training teachers to work in parochial schools. Taxpayers sued the federal government, alleging the grant violated the First Amendment’s prohibition of government establishment of religion. Notre Dame intervened in the case as a defendant to defend its interest in the funds. Inherent to Notre Dame’s argument that the funding did not violate the First Amendment, is the fact that Notre Dame engages in many secular activities. In fact, just by applying for the grant, for which the “[u]se of funds for religion” was explicitly prohibited, Notre Dame represented to the government that despite its religious affiliation, not everything it does is an exercise of religion.

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Written by Nancy Northrup for RHRealityCheck.org – News, commentary and community for reproductive health and rights.

There’s no question that the anti-choice takeover of state capitols has emboldened zealots to aggressively push through as many abortion restrictions as possible. It seems like every day there’s news about the hundreds of bills percolating in state legislatures across the country. Bill sponsors keep upping the ante with proposals that significantly intrude on a woman’s personal medical decision to have an abortion or severely limit her ability to get one. And for many pro-choice supporters, the future for abortion rights seems bleak.

Media pundits are stoking the anxiety by painting pro-choice litigators as gun shy.  Slate’s Dahlia Lithwick recently wrote a piece suggesting that the pro-choice movement won’t challenge the new abortion restrictions for fear of losing in the Supreme Court. She writes that the Court’s 2007 decision to uphold the so-called “partial birth” abortion act has “frightened those who are pro-abortion rights into being grateful for what they have.” She then asks, “Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical?” Rachel Maddow also aired a segment that delivered a similar message, concluding that so many of the anti-abortion bills that are blatantly unconstitutional have gone unchallenged because the pro-choice movement has “apparently so far made the calculated decision to let it slide” in order to protect Roe v. Wade from being overturned. 

Nothing could be further from the truth. … Read more

Written by Frances Kissling for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

The end of the year is a special time. Some of us make a slew of year-end contributions; others make New Year’s resolutions. We think back and we think forward. My thoughts as the year ends turn to the greatest challenge facing abortion-rights supporters: the absence of adequate federal, state and personal financial support for women who have chosen to have abortions and simply don’t have the money. I am struck by the almost absolute apathy of most of the movement when it comes to this pressing concern.

When we look back, we are critical of the movement of the mid-seventies which chose to focus its attention on rallying the troops about a less-than-real challenge to Roe’s constitutionality rather than on the first and most significant blow to Roe: the 1980 Harris v. McRae Supreme Court decision which ruled that neither the states nor the federal government were obliged to pay for abortions through various funding mechanisms.

Efforts to overturn the Hyde Amendment as well as state laws prohibiting the use of state money for abortions have consistently taken a back seat to efforts designed to secure adolescent access to abortion services and fight waiting periods, phony informed consent laws and restrictions on later term abortions and on specific types of medical procedures.  . . . Read the rest of this entry →

Written by Jodi Jacobson for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

What’s the connection between the personhood of a fertilized egg and the personhood of corporations?

Both can and will undermine the fundamental rights of women.

On January 21st of this year, perhaps in some cosmically ironic sense a day before the 37th anniversary of Roe v. Wade, the Supreme Court handed down a decision on the Citizens United case.

In the 5 to 4 opinion, the Court held that:

Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.

Corporations can take money, funnel money, and use money to their political advantage in campaigns for U.S. elected offices and…they do not have to disclose a dime.  . . . Read the rest of this entry →

Written by Amanda Marcotte for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

So far, the issue of reproductive rights hasn’t really been much of a factor in the discussion about Obama’s new nominee to the Supreme Court, Elena Kagan.  For the most part, this is because the right is occupied with the game of trying to figure out how to call Kagan a lesbian without coming right out and saying it. Because it’s not on the table right now, it’s awfully tempting for pro-choice activists to assume that it may never really become an issue.  Perhaps the Obama administration’s decision to find a candidate with as obtuse a record on the issues as possible might be enough to keep the rabid dogs of the anti-choice movement out of this?

Don’t bet on it. When we relax our shoulders and start to believe that anti-choicers won’t be able to find an angle to make something All About Them, that’s when they strike.  They did it with the economic stimulus package, lashing out at funding for family planning services in an effort to kill the bill.  Pro-choice attempts to make health care reform abortion-neutral failed miserably, and anti-choicers were very close to killing health care reform entirely over abortion. And even if Elena Kagan never uttered the word “abortion” in her life, there’s a good chance that won’t stop them.  They’re very rarely bothered by reality, and in the absence of any evidence to support their views, will just make it up.

Of course, things are far more complicated because we really don’t have much evidence about Kagan’s beliefs about choice one way or another.  There’s been a memo where she urged then-President Clinton to support a late term abortion ban, but it appears that her motivation was to back a compromise that would prevent a more severe restriction down the road.  As it was, her prediction did play out—as soon as an anti-choice President was elected, he signed a serious federal restriction on late abortion—but it’s hard to imagine that a compromise bill passed earlier would have done much to stop the more severe restriction.  But the whole incident calls into question Kagan’s commitment to choice.  It’s hard to believe that President Obama would nominate someone without being assured of her commitment to abortion rights, but understandably, pro-choicers don’t want to take this on faith.

My sense is that Kagan is a purely political animal, who seems to value what’s popular over what’s right. Take this story, for example.  Kagan also urged President Clinton to support sentencing laws that treat the possession of crack cocaine as more serious than the possession of powder cocaine, even though it’s the same drug.  The only real difference between the drugs is a class difference, and the result of these sentencing laws is functionally racist.  There’s really no question that the sentencing laws are deeply unjust, but Kagan advised Clinton to support them anyway, because it sent the signal that the President is “tough on crime.”

The hope no doubt among progressives is that Kagan’s tendency to be a middle-of-the-road political animal will fall away when she’s ensconced in the lifetime position of Supreme Court justice.  But I’m skeptical.  Being a political animal is rarely a conscious choice, but more of a personality trait.  Odds are that Kagan’s behavior off the court will be a good predictor of her behavior on the court.  And her history inclines me to think she’ll be quite a bit like Sandra Day O’Connor, a moderate who tended to value politically popular opinions over rigorously argued ones.  In his book "The Nine," Jeffrey Toobin explained that O’Connor had an uncanny ability to absorb the most politically centrist sentiment in the country and channel that into her decisions. Kagan is going in on a reputation as a great compromiser, a person who can bring disparate people together by appealing to common ground. 

On abortion rights, this tendency can be incredibly dangerous, even when a justice is technically pro-choice.  O’Connor, despite being pro-choice, struck an enormous blow to abortion rights when she wrote the majority opinion in Planned Parenthood v. Casey.  The decision overturned the standard laid out in Roe v. Wade that made it difficult for state governments to restrict abortion, especially in the first trimester, and replaced it with a standard where states are allowed to regulate abortion as long as there was no “undue burden” on women seeking abortion.  From a legal perspective, the standard is hazy and ill thought out, but it was a politically popular one in a nation where most people support legal abortion but want it to be severely restricted.  Unfortunately, the decision opened a floodgate of absolutely undue burdens on abortion access, from parental notification and waiting periods to laws that exist mainly to harass providers.

Sadly, we saw this kind of thinking in the memo advising President Clinton to support a compromise bill restricting access to late term abortion.  One can be pro-choice and make decisions that are anti-choice under the misguided belief that compromises and common ground will placate anti-choicers.  I can’t imagine a scenario where passing a less restrictive abortion ban under a pro-choice President would suffice and thereby stop anti-choicers from trying to pass another more restrictive one as soon as they got an anti-choice President.  If anything, gaining victories under a pro-choice administration would probably embolden them to reach for more under an anti-choice administration.

Let’s hope Kagan proves me wrong once she passes confirmation, which she almost surely will.  It’s hard to imagine the court isn’t going to revisit the issue of abortion soon, with challenges to it rising up in states like Nebraska.  And as hard as it is to imagine that the restrictions on abortion could get any worse, the sad reality is they can.  

Written by Jodi Jacobson, editor of RHRealityCheck.org – News, commentary and community for reproductive health and justice.

In 1997, while serving as a White House adviser to President Bill Clinton, current Solicitor General and Supreme Court nominee Elena Kagan urged the president to support a ban on late-term abortions for what appear to be purely political reasons, according to a report by the Associated Press.  The AP article notes this was "a political compromise that put the administration at odds with abortion rights groups."

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton’s presidential library are among the first to surface in which Kagan weighs in on the thorny issue of abortion.

The position favored by Kagan was a "compromise" of abortion rights crafted by Democratic Sen. Tom Daschle in response to efforts by Republicans to pass the so-called partial birth abortion ban. "Clinton supported it," reports AP, "but the proposal failed and Clinton vetoed a stricter Republican ban."

In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle’s compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.

Clinton generally supported banning late-term abortions but insisted there be an exception when the mother’s health was at risk.

The memo, reports AP,  is more of a political calculation than a legal brief, but "Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional."

”We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” they wrote.

The memo noted that another White House adviser, Rahm Emmanuel, also supported the idea. Emmanuel is now Obama’s chief of staff.

Memos reviewed by AP were contained in Reed’s files. "They do not include Kagan’s papers from her time as domestic policy adviser and associate White House counsel. Those records, a several-thousand page collection that could provide the most revealing look at Kagan’s legal work, are expected to be released this summer."

This appears to be the first insight into Kagan’s own thinking around political expediency and women’s rights. "Partial-birth" abortion is a term created by the anti-choice community and is not a medical term. Moreover, late abortions–those in the third trimester–invariably occur because of fetal anomalies incompatible with life, the death of a fetus in utero, or because of threats to the life and health of the mother.  Banning these procedures takes out of the hands of women and men decisions they feel they need to make for themselves and their families often based on wrenching, life-threatening conditions. It is no surprise to hear now that any of these three advisors to President Clinton supported this "compromise" because it has become almost axiomatic that self-described pro-choice politicians these days rarely stand up on principle for the ultimate right of women to make the decisions they need to make for themselves and their families.

That the role of a Supreme Court judge is different than that of a political advisor to the President and that such positions might vary according to the specific role is a given.  However with so little to go on regarding Kagan’s record, it is difficult to feel comforted by that realization.

Written by Pamela Merrit for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

When Supreme Court Justice David Souter announced that he intended to step down from the bench at the end of this year’s Supreme Court term, there was a brief pause, a collective gathering in of air, followed by a frenzy of speculation that did not end until President Obama announced his selection of Judge Sonia Sotomayor as nominee. During the days of guesswork and anticipation that preceded Obama’s nomination of Sotomayor, political odds-makers seemed to favor the selection of a woman, with most pundits leaning toward a woman of color, to replace Justice Souter. Everyone was on pins and needles, and who could blame us? During the 2008 elections, the that the next President would most likely have the opportunity to nominate more than one Supreme Court justice and shape the political climate of the court for decades to come was one of the key areas of concern.

Pro-choice groups hoped for a nominee with a judicial record supporting a woman’s right to choose. Anti-choice groups busily combed through the records of likely nominees looking for ammunition to Read the rest of this entry →