The White House’s Dangerous Dance With the Birth Control Mandate

This week, on MSNBC's Morning Joe, Obama campaign senior advisor David Axelrod signaled that the White House, having finally decided to include coverage of birth control as part of primary health care benefits under health reform after studying it for well over a year, is now "willing to compromise." Many of my colleagues disagree with my take on the situation, but I am worried that in the end the White House may not hold firm.

See all our coverage of the 2012 Contraceptive Mandate here.

This week, on MSNBC’s Morning Joe, Obama campaign senior advisor David Axelrod signaled that the White House, having finally decided to include coverage of birth control as part of primary health care benefits under health reform after studying it for well over a year, is now “willing to compromise.”

Translation? The White House is considering “accommodations” to the policy.

Many of my colleagues disagree with my take on the situation. Many have pointed me to, and I have read, the so-called clarification on Tuesday by White House Press Secretary Jay Carney of what Axelrod really meant. I also read the further clarification made on Wednesday. I don’t find either very clarifying. In fact, I find them worrisome.

In Tuesday’s White House press conference, for example, ABC’s Jake Tapper asks Carney:

Is there a middle ground somewhere where perhaps some of these religious organizations that aren’t specifically houses of worship, but are Catholic or Jewish or Baptist hospitals, charities, of a smaller size could be — could receive the same exemption as the houses of worship?  We’re talking about people who think that some methods of birth control are murder, are a sin, and the Obama administration is forcing them to be party to that.  I mean, that’s the crux here.

And Carney responds:

Well, let’s be clear — and first of all, we understand the religious concerns here.  That is why this balance was sought. That’s why the process going forward includes a transition period where this discussion will continue to see if there can be ways found that ensure that women get access to these preventive services and that those services are covered — as they will be for all other women — and that also takes into account these religious concerns.  But let’s be clear, the rule does not require any individual or institution to provide contraception.  It requires coverage for women who work there of different faiths, or of any faith.

He continues:

I’m not going to negotiate all the different possibilities of how this rule could be implemented in a way that might allay some of those concerns.  That’s what the transition period is for.

Then on Wednesday, Carney said:

“The commitment to make sure that all American women no matter where they work have access to the same health care coverage and same preventive care services, including contraception, is absolutely firm.  That’s the President’s commitment, that’s explicit in the policy proposal. The discussion, and it’s an important one, but the discussion is how can we, in implementing this policy, try to allay some of the concerns that have been expressed?  And the President is very sensitive to that.  As is Secretary Sebelius and others.  But that’s the issue.  So, describe that as you will but there is no change in the commitment to ensuring that women have access to these important services.”

Why does this worry me? Two main reasons.

One, none of these statements says what needs to be said–what has needed to be said by the White House from the time of the birth-control-in-the-stimulus-plan fight throughout the fight over health reform and on to this day. And that is as follows:

Contraceptive use is normal. It is used by 98 percent of sexually-active women in the United States at some point in their lives, including 98 percent of Catholic women; indeed many women rely on it for most of their reproductive lives. It is a public health issue, it is a medical issue, it is an individual health issue. Contraception is about maternal, infant and child health; it is about desired family size, family formation, and the most basic and profound choices individuals can make–whether, when and with whom to bear and raise a child. It is also about medically-indicated conditions which women face for which birth control is prescribed. It is a foundational issue for the social and economic participation of women. It is an individual human rights issue. And every domestic and international medical body with any legitimacy recognizes it as such. It is not about the religious freedom of religious corporations institutions a la Citizens United, but about the health and religious freedoms of individuals, the vast majority of whom clearly disagree with the teachings of the Catholic Church.

This needs to be said, over and over, to put the discussion about contraception to rest, to place it back in the realm of public health, and to stop the stigmatization of all reproductive health care, which has not surprisingly gone well beyond abortion to include contraception.

And yet the White House seems unable to say any of it. In fact, as the New York Times noted earlier this week, key members of the Administration (all of them men) are “squeamish” about the issue, and there has been a battle inside the White House with women on one side and men (Vice President Biden, former Chief of Staff William Daley and other Catholic men) on the other. These men find it hard to stand up to the Bishops, despite the fact that the majority if not all of them have almost certainly relied on their wives to use contraception.  Tell you something?

This point has also been made by Glenn Thrush at Politico:

So far, the White House and HHS have dug themselves a very deep hole by doing a lousy job of getting out their side of the story out – Obama says he did this to protect women’s reproductive rights – but the West Wing has projected defensiveness instead of making that case forcefully… just like on health care reform, the stimulus, etc. etc. etc.

Thrush interviewed several female Democratic consultants, and writes about one:

The problem, she said, is that Obama-land, using a roster of middle-aged male surrogates,  has been in a narcoleptic, deer-in-headlights zone since the story went nuclear a week or so ago.

“That part seems to be true,” he continued.

“I have talked to a lot of administration types about this over the last week, and not a one of them has owned the decision.” Moreover, he continued, “the contrast between [the] passion [of female Democrats] and the tone of detached deliberation used by male Obama-ians, when they have spoken publicly, is striking.”

The Administration writ large also seems incapable of asserting the primacy of medical evidence over personal belief in the creation of health care policy. The USCCB believes that everything from masturbation and the “spilling of seed,” to the use of contraception that prevents implantation of a fertilized egg is a sin and that contraceptives are abortifacients. It not only wants its assert its own theologically-driven definition of when pregnancy begins on employees of any entity associated with Catholicism, it wants that definition to override the actual medical definition for every woman in the United States.

One can believe individually what one wants to believe but at some point, rationality and evidence must hold sway in the creation of public policy or we are in deep, deep trouble. My religion may dictate that the earth is flat or the moon made of cheese, but I would be wrong in the eyes of geographers, astronomers, astronauts, and the vast majority of people; moreover, my request that public policy accommodate my beliefs would rightly be viewed as insane. The conversation about contraception right now–at a time when states are cutting access right and left and when we should be talking about jobs, energy, global warming, education and any number of other things–also is insane.

If the Administration had any understanding about the politics of these issues from the very beginning, we might not be in this position today. Take the stand, make the case, move on. Be firm. But it keeps trying to play all sides, allay all concerns, be pals with the Cardinal on issues like contraception. You can’t do it. This is not about what a group of men and patriarchal religious institutions think, it is about sound public health, about science and evidence and policy-making based on rational, factual data.

By not–indeed by never–saying any of these things, this Administration has allowed contraception to be stigmatized by male religious leaders who can not even convince their own followers that what they preach is morally salient.  And by waiting til the eve of an election year to make the decision, it has allowed this issue to boil over into the current media frenzy, which the media is of course delighted to treat as a “culture war,” when in fact it is a war between science, health, medicine, and human rights on one hand, and the beliefs of a very few being imposed on the very many on the other, with the very few crying, as they always do, about being “victimized.” Tapper’s biased articulation of his question above just shows how far from an objective, science-based resource the world of journalism has become.

And let’s remember one thing: Well before the issue of the exemptions came up, the Bishops were fighting inclusion of contraception per se in the definition of preventive care. They did not want contraception to be included as part of the primary preventive care package of insurance coverage for anyone under any employer. So this is about their attempt to control public health a la Nicaragua, Peru, Bolivia, Ecuador, Kenya and other countries where they have succeeded in severely diminishing women’s access to care across the board and where, as a consequence, unsafe abortion and other causes of maternal death are among the leading causes of death among women ages 15 to 49.  For this reason as well, this decision has implications for women’s lives not just in the United States, but literally throughout the world.

A second reason I don’t find the “clarification” to be very comforting is Axelrod and Carney, respectively, imply and suggest that a) the grace period of an additional year, which only gave the religious right more time to stir up a panic, was for “finding ways around” covering contraception directly under employee health plans, which is not my reading of the original rule; b) that there are in fact  “acceptable workarounds” for contraceptive coverage that will mollify the right-wing religious uterine police and that won’t leave women having to deal with separate policies for “health coverage” and another for that “dirty nasty contraception,” c) and that having found said workarounds, the issue will go away. 

Does anyone believe this?

Let’s take these one by one. If what I am hearing from Carney and Axelrod is in fact Administration policy, then the original rule as per the Department of Health and Human Services itself is already moot.

The original rule is clear. It states:

[R]egulations specify that, for purposes of this policy, a religious employer is one that: (1) Has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Code. Section 6033(a)(3)(A)(i) and (iii) refer to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order. The definition of religious employer, as set forth in the amended regulations, is based on existing definitions used by most States that exempt certain religious employers from having to comply with State law requirements to cover contraceptive services.

The policy as it now stands already exempts institutions with the specific purpose of religious inculcation–i.e. the United States Conference of Catholic Bishops (USCCB) and churches.

They don’t have to comply in a year; they don’t have to comply ever.

But this is not what the fight is about. The fight is about universities, hospitals and social service institutions which serve many people, employ many people, do not have as their primary purpose the inculcation of religious values, and which, by the way, collectively receive billions of dollars in tax payer funds, and in tax exemptions. Moreover, an increasing number of Catholic hospitals are ending their governing board affiliations with the Catholic Church but partnering in large systems with both Catholic and non-Catholic hospitals. 

According to Kaiser Health News, for example, Catholic HealthCare West “has $11 billion in revenues, making it the fifth largest in the country, [and] is seeking to triple in size and build a national footprint. It treated 6.2 million patients last year.  [T]he system’s new name [is] Dignity Health. [The CEO] said the system’s change to a nondenominational board will create “a tremendous opportunity that will help accelerate our growth.”

The system’s Catholic hospitals will continue to adhere to Catholic directives and have relationships with the religious orders of nuns that governed the system. Those orders will retain final authority should Dignity want to sell a hospital, change its name or make other substantial alterations. In addition, the secular hospitals will continue to adhere to some rules based on church doctrine, such as a ban on abortions except when a mother’s life is in danger.  Still, the system’s governance change is more dramatic than those made at some other Catholic hospital systems.

So in this scheme, non-Catholic of numerous denominations must operate under are now under Catholic doctrine.

The primary purpose of a hospital is to provide medically-sound health care.  The primary purpose of a university is to teach. They employ millions of women and men–Catholic and non-Catholic–who need contraceptive coverage for reasons of individual health, family health, and economic well-being. That is the reason they are not exempt. Whether or not someone under a health plan goes to a doctor that prescribes and a pharmacy that fills a prescription for birth control is no business of the hospital administration.  And experience indicates that even when in theory such institutions are willing to provide contraception for health reasons, in practice they shame and harass women before actually providing care, if they ever do.

But the policy is not about making them provide contraception. Its not about making them prescribe it. Still the Bishops want a policy that says even if and when you work for us and even if and when you get an insurance plan, and even if you are paying part of that coverage, you will not be able to go to your own doctor for your own personal and health needs and get a prescription for modern contraception.

While these are not organizations for which inculcation of religion is their main purpose, they do, under the current regulation, have a year from the date on which the regulation goes into effect (i.e. a year from August 1, 2012), to comply with the regulations.

But they don’t want to do so. At all. Ever. Under any conditions.

Here, for example, is what Anthony Picarello, associate general Counsel of the United States Conference of Catholic Bishops said Wednesday on the Diane Rehms show when asked by Rehms what compromises might be acceptable to the USCCB:

Well, my reaction is basically, you know, the way to fix the problem is to fix the policy. I mean, there’s a lot of talk about trying to work this through and so forth over the one year. But if the one year is simply, as we’ve been told, just to provide more time for full compliance with the current policy, then that’s not accommodation at all. What we need is a change in the policy. That’s the only way we’ll get an (word?) of the concerns.

Some have floated the “Hawaii solution.” Hawaii law mandates that religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact and describing alternative ways for enrollees to access coverage for contraceptive services. There are three problems with this. First, it places the burden of two policies, two sets of costs and payments, two sets of regulations, and two sets of hassles with insurers on women for a valid, medical and public health intervention, a circumstance in which there is no rationale for putting women.

Second, it continues the stigmatization and “separation” of contraception and health care, which is the core of the problem to begin with.

And third, I guarantee that the Bishops, who encouraged passage of the Let Women Die Act of 2011, under which “church-affiliated” hospitals could not only refuse to perform a life-saving abortion but also refuse to refer a dying woman for a life-saving abortion are not going to be running around happily informing people of their rights and alternatives to access to contraception. It’s an accountability nightmare that will be suffered by millions of invisible women whose stories will never make the papers after all is said and done. These sorts of policies can only be thought up by people who really do not get what it is like for a low- or middle-income woman to manage a family, a job, health care, long hassles with your insurance companies for accurate coverage and long-lines for prescription drugs.

The only change in the policy acceptable to the USCCB and the far right is to not allow women and men who work for them to access contraception at all.

Moreover, the USCCB and other religious right organizations have now made clear that they don’t even want to stop at religiously-affiliated organizations, but also believe that individual employers should not have to provide coverage of contraceptive care if they don’t feel like doing so because “their conscience is against it.”

On the Diane Rehms Show with Picarello was Barry Lynn, executive director of Americans United for Separation of Church and State.  He noted that:

“David Stevens… the CEO of a group called the Christian Medical Association… [b]elieves that one of the problems with this rule now is that it should be expanded not just to Catholic hospitals or other big institutions, but that individual employers should be allowed to say, no coverage of contraceptions for their individual employees.”

In other words, Lynn continued:

“…allowing the employer at the bookbinding store or the grocery store to say, we — I do not believe in birth control, and I am going to refuse insurance coverage for any of my employees who might want it because I — my rights, my claim of religious freedom trumps that of my employees. This is absolutely shocking. We’re talking about trumping already, in Anthony’s model, the rights of individual women who are parking attendants, cafeteria workers, nurses or physicians at what is nominally a Catholic hospital, but it serves the whole community.”

“Religious liberty” is a red herring if ever there is one. But the White House has played right into this by constantly either refusing to engage reproductive health issues as health issues, or by repeating tropes like “religious liberty” as if these were both rational and legitimate, thereby strengthening the hand of the Bishops and of the GOP, which as we know will look for any cudgel to beat up on Obama.

The White House and many allies in the House and Senate are now under tremendous pressure from a small minority of religious leaders who are not in line either with public opinion or their own followers. New polling data reveal that a majority (55 percent) of Americans agree that “employers should be required to provide their employees with health care plans that cover contraception and birth control at no cost,” and rougly six-in-ten Catholics or 58 percent believe that employers should be required to provide their employees with health care plans that cover contraception. Fifty-two percent of Catholic voters, support for this requirement is slightly lower at 52 percent.

Given all of the above, what the White House is doing now is grossly unclear to me. And given this administration’s troubled history with women’s health and rights (see: Health reform, abortion, Stupak, Nelson, Executive Orders, Hyde), these “clarifications” without finality are not reassuring. At each point in the past instances above, the Administration was not going to change its mind, and then it signaled conciliation, and then, voila, the White House changed its mind. Now, they are continuing to feed rather than combat an underlying narrative that basic reproductive health care is not part of basic primary health care, that there is something wrong with it, that it is in fact sinful, and that it is stigmatizing. This is a bad omen at a very bad time. Given that no compromise is acceptable to the USCCB or to any of the far right fundamentalists seeking to control all of women’s health, there is nowhere for the White House to go except to stand up and say no more, or to cave.

The Administration has nothing to lose by putting its foot down. It is the right thing to do, morally, economically, and from the vantage points of public health and human rights. The majority of women are for it; the majority of Catholic women are for it; the majority of voters are for it.

The Administration simply has to man-up on birth control, or better yet, let the women in the Administration take this one over, because they, for obvious reasons, get it and the men don’t. By not doing so, the White House is inviting more contention, more wrangling, more press and media. It also is helping re-stigmatize a form of modern medicine for decades to come.

And if they can’t stand up, perhaps what Axelrod really should more honestly have said was this:

The White House is considering changes to a policy that will compromise the health, well-being, human rights, social participation and economic security of women because it is afraid to stand up to a minority of old white men who believe that women have no rights or role in society.