The Right’s Position on the Birth Control Benefit is Unconstitutional. Is it Anti-Catholic, Too?

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Commentary Contraception

The Right’s Position on the Birth Control Benefit is Unconstitutional. Is it Anti-Catholic, Too?

Imani Gandy

It seems outlandish to claim that the Catholic bishops' own crusade against contraception is anti-Catholic. Still, arguments that this position is anti-Catholic seem not only well-founded but reasonable, whereas the Catholic bishops' incessant interfering in American women's lady-business is spectacularly unreasonable.

With more than 100 plaintiffs seizing the religious mantle against the birth control benefit, suing the Department of Health and Human Services (HHS) has become quite the favorite pastime for those willing to twist and pervert the Establishment Clause of the First Amendment in a naked attempt to force the religious values of the few onto the many. What should be a rather banal issue about women’s healthcare policy has been spun into a contentious debate over women’s sexual proclivities, pitting a handful of (mostly male and mostly white) individuals against millions of women (and sane men.) 

Bombastic bluster notwithstanding, the birth control benefit is not the assault on religious liberty that organizations like Wheaton College, Hercules Industries, and Hobby Lobby pretend it is. The birth control benefit seeks to bring the cost of women’s healthcare and men’s healthcare into parity by requiring employers to offer health insurance plans that offer contraceptive coverage without co-pay. Ultimately, the birth control benefit seeks to provide more and better healthcare to women.

Unfortunately, hyperbole and self-righteousness has morphed a simple matter of permitting women access to healthcare into a holy war, with one side lobbing rhetorical bombs devoid of logic and fact, but which nonetheless hit their target and damage our cause because the bombs are wrapped in the ecclesiastical cloak of the Lord.

Kyle Duncan, general counsel for the Becket Fund for Religious Liberty, a public interest law firm representing several organizations that have filed suit against HHS about the birth control benefit, is one such rhetorical bomb thrower. Earlier this month, Duncan explained to the Catholic News Agency,

Sex. Abortion. Parenthood. Power.

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“[N]othing the government has done in the past months changes the fact that the mandate still violates federal law and the Constitution by forcing religious organizations to pay fines for the privilege of practicing their faith.”

Soaring rhetoric to be sure, but any reasonable reading of the birth control benefit requirements reveals that Duncan’s argument is poppycock.

In fact, religious organizations are not being forced to pay fines for the privilege of practicing their faith. Rather, they are being fined for attempting to break the law by denying their female employees healthcare services to which women are now entitled under the Affordable Care Act.

Don’t take my word for it: A Bush-appointed federal judge in Missouri recently rejected the claim that the birth control benefit prevents protestors of the benefit from practicing their faith:

[T]he challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs. Frank O’Brien is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives.

Religious organizations, represented by the likes of Kyle Duncan and the Becket Fund for Religious Liberty, in concert with the United States Conference of Catholic Bishops (they never miss an opportunity to whine about the birth control benefit!), are improperly—and in subversion of constitutional principles regarding religious freedom and the separation of church and state—demanding that the government permit them to force their religious values down the throats of unwilling women.

Contrary to morality-soaked rhetoric of such zealots, however, the birth control brouhaha isn’t about protecting the rights of citizens to practice their own faith. It is about the rights of citizens to be given the freedom to make their own choices, free from the restrictions of a faith that they might not call their own. It is about freedom from religious tyranny—which is a bedrock principle of this country. That’s why so many colonial dudes fled England in the first place.

Interestingly, as it so happens, freedom of religion is not just a founding principle of the U.S. Constitution, but it is also a Catholic doctrinal teaching—at least according to Catholics for Choice, an NGO that recently submitted an amicus brief to the Inter-American Court of Human Rights, in which it argued that religious pluralism and separation of church and state are teachings of the Catholic Church. (Catholics for Choice filed the amicus brief in support of parties challenging Costa Rica’s absolute ban on in-vitro fertilization.)

In arguing against Costa Rica’s IVF ban, Catholics for Choice pointed out that church teachings dictate that the church should remain independent from politics.

Despite efforts to conform public policies to its teachings, church teaching clearly demands that Catholics respect the views of other faith groups, and the church accepts the principle of church-state separation. According to the Vatican II document Gaudium et Spes, Catholics “should recognize the legitimacy of differing points of view about the organization of worldly affairs and show respect for their fellow citizens.” This is particularly significant in cases where one religion’s position is far apart from many others, as is the case of the Catholic church’s position on sexuality and reproductive health.

That sounds not unlike the founding principles of the United States, one of which, contrary to fundamentalist fantasy, is separation of church and state. It stands to reason, therefore, that the Catholic bishops who are insisting that certain purportedly religious organizations should be exempt from providing health care to their female employees are thumbing their noses not just at the U.S. Constitution, but also at church doctrine!

Indeed, the very fact that the Catholic bishops have a seat at the women’s healthcare policy discussion table is a slap in the face of church doctrine, at least according to Vatican II, which, according to Catholics for Choice’s amicus brief, proclaims “[i]t is of supreme importance, especially in a pluralistic society, to work out a proper vision of the relationship between the political community and the Church,” and notes that “the political community and the Church are autonomous and independent of each other in their own fields.”

It seems outlandish, I know, to claim that the Catholic bishops’ own crusade against contraception is anti-Catholic—the bishops are the big dogs of Catholicism, after all. And certainly Catholics for Choice is not exactly the apple of the Vatican’s eye. In fact, Catholics for Choice is not even recognized by the Vatican as a Catholic organization, which is not surprising given their heathenistic respect for women’s choice and all. Still, the arguments made by Catholics for Choice in connection to its argument against Costa Rica’s IVF ban are easily applicable to American policy regarding birth control, and the bishops’ insistence that their opinions on such policy should matter.

Moreover, the doctrinal basis for Catholics for Choice’s arguments seems not only well-founded but reasonable, whereas the Catholic bishops’ incessant interfering in American women’s lady-business is spectacularly unreasonable.

It is unreasonable to allow religion any influence in women’s health-care outcomes. It is unreasonable to allow self-identified religious organizations to refuse health-care benefits to female employees not necessarily of the same faith, all in the name of religious conscience. It is unreasonable to extend the right of an individual to practice his or her faith so far that it encompass the right of for-profit arts and crafts companies and manufacturing companies to refuse to implement a health-care policy that will reduce inequality in health-care services for men and women.

Then again, the war between reason and faith dates back centuries. Just ask Galileo.