Four Ways to Show How the “Religious Liberty” Claim Against Contraceptive Coverage Is Nonsense

Conservatives are now claiming religious liberty gives them the right to dock their employee's compensation package for having differing beliefs about contraception. Four reasons why that argument won't fly.

Nancy Scola has a piece at Salon on the Republican delusion that the newly loud anti-choice war on contraception can somehow be repackaged as “religious liberty” and sold to the public, accomplishing the real goal–undermining women’s fundamental right not to just basic health care but also to make their own sexual and family decisions–and dressing it up as a fight for freedom. The strategy is to cast “religious liberty” as such a broad right, held only by fundamentalist Christians, that it actually extends far past their noses and right into your face and beyond, into your uterus. In this view, women securing equal rights to fair compensation from employers and to comprehensive basic health care coverage is framed as a violation of the right of religious misogynists to control and punish them. It’s a bold tactic, and while many liberals, who are used to rolling over for the right and letting them have whatever they want, fear it’s going to work, there’s reason to be skeptical.

Well, some reason to be skeptical. It is true that if we roll over and let the right define religious liberty as the right to interfere with other people’s personal and religious choices, then we will lose. But if we fight, we can win. We just need to be clear on the arguments here. So I put together a quick rundown of how to argue for women’s basic right to equal protection under the Constitution in light of these new HHS regulations.

1) Women’s right to be sexual beings is protected under the First Amendment’s religious liberty clause. Yes, Catholic bishops and their teeny group of avid followers have a right to believe that God wants women to either be virgins or non-stop baby factories. But women have a right to believe that God has a different plan for them—or to not believe in a God at all. Women have equal rights to their own religious beliefs around sex and reproduction. The Catholic bishops demanding the right to force women not to be able to go directly through insurers for contraception coverage—in essence, giving them extra-governmental power to levy a fine against women for being sexual—is a direct violation of a woman’s religious freedom. These employers cannot require women to attend Catholic mass as a condition of their employment, so why should they be able to require women to pay what amounts to a penance for what the church teaches is a sin as a condition of their employment? Religious liberty exists for all Americans, even women.

2) Religious liberty certainly doesn’t give you a right to tear down entire social systems because someone in them might differ from you on a matter of theology. Since Obama exempted Catholic hospitals and universities from covering contraception directly, the argument conservatives are making to attack women’s access to contraception is that if you pay into a system, you have the right to ban coverage for disliked services for every other person in that system. While they’re pretending to limit this principle to the employees of misogynist employers, if you think about it, believing this means that any single individual who gives an insurance company any money has the right to veto any procedure for any reason, as long as they dress it up as “moral.” Which means that if a Catholic hospital buys insurance from a company, if, say, Planned Parenthood does too, under this principle, the Catholic hospital should be able to deny Planned Parenthood the right to coverage contraception for their employees. Or, heart disease treatments, for that matter, if they dress it up in enough religious garb.

And that would extend beyond just employers. Employees pay into the system, too, so presumably if a single dollar from your wallet goes to an insurance company and gives you ultimate veto power over how all the money is spent, then any random person anywhere in the system has this power. In essence, this principle would mean that insurance companies couldn’t function at all.

3) Insurance isn’t a gift your employers give you; it’s a part of your compensation package. If your employer has the right to force you not to use your compensation package in this way on general (and suddenly invented) principles, then why not in other ways? Once the principle that your compensation is your employer’s “money” and that they get to control it is established, then why can’t they step in and stop you from spending your salary on contraception? After all, if health insurance money is still theirs after they write the check, then your salary is, too.

4) Conservatives’ claim to support the right of the religious to intrude on others is an inch deep. While conservatives are claiming that the First Amendment is so broad that it gives your employer a right to discriminate against you for having different religious beliefs regarding sexuality, they don’t generally believe that religious liberty trumps generally applicable laws. For instance, last year a Muslim man in Pennsylvania was accused of assaulting another man who was dressed as zombie Mohammed. The judge dismissed the case, citing a lack of evidence, and the right wing media went wild, accusing the judge of “sharia law” for supposedly letting off the defendant because he took offense at a slight at his religion.

Regardless of the facts of the case, let’s look at the right wing argument. They claim, correctly, that having religious faith should not be grounds for having an exception to a generally applicable law against assault. Because you’re religious, they argue, doesn’t mean you have a right to force your faith on someone who doesn’t share it, especially in direct violation of the law.

By their own reasoning, therefore, employers should not be allowed under the guise of “religious liberty” to opt out of federal regulations requiring employers to compensate their employees fairly for their work. Nor should “religious liberty” give anyone a right to try to force their beliefs on others by withholding medical care. As it stands, conservatives are trying to argue that employers should be able to force women to pay twice for their birth control—once when they paid for it through labor/money when they got their insurance and again when they pick it up—to appease someone else’s religious sensibilities. If their right to religious belief continues well past where their nose ends and where yours begins, then by the same logic, laws against assault should also have religious exemptions, even for Muslims.

They’re obviously not going to sign on to that claim, demonstrating that this isn’t and never was about “religious liberty,” but about finding inventive ways to get between women and their access to contraception.