Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to the enactment of the women’s health provisions in the first place. Let me try to address a few of the most important points:
1. The distinction between “medically-indicated” (non-contraceptive) uses of contraception and “non-medical” uses of contraception is spurious. Put aside for a moment the importance of allowing women to control their own bodies, stay in school, rise in the workplace, etc. Contraception qua contraception is still critical for women’s health (planned pregnancies lead to better prenatal care, and some women have health conditions that make pregnancy dangerous) and for the health of the children (planned pregnancies lead to better prenatal care, and properly spaced pregnancies are better for the children). 2. Even if the medical/non-medical distinction were real, imagine having to go to your HR department for permission to receive coverage for “medically-indicated” uses of contraception. It’s a trifle infantalizing. 3. There is also no such thing as “ordinary contraception” (which Professor Sisk posits can be purchased for $10 a month, leaving medical coverage unnecessary). I’m assuming that Professor Sisk uses that term to refer to the birth-control pill. Other forms of contraception (such as IUD) are far more effective and also much more expensive; their high upfront cost leads many women to choose cheaper and less effective methods. Even if IUD were somehow considered an aspirational luxury, oral contraception isn’t appropriate for some women, for instance due to side effects. So we can’t just send women to CVS sans insurance. 4. Even if oral contraception were the only game in town, $120 a year is nothing to sneeze at, especially for low-wage workers – the very people who already face significant financial barriers to obtaining contraception. 5. Many of the same people who have opposed the contraception-coverage regulations most strenuously would be among the loudest voices opposing a government program to fund/subsidize contraception for women whose employers refused to include it in their health policies. The ACA, which attempted to keep employer-based coverage largely in place, has already been derided as “socialized medicine.” Even if a separate program were politically viable, forcing women with objecting-employers to sign up for a separate, government-run program of contraception coverage is a needless extra burden, is stigmatizing, and makes insurance coverage less seamless for those women. 6. Let’s put aside for a moment that the “abortifacient” label is almost entirely contradicted by modern science (even if you accept that interference with implantation constitutes an abortion). Since opponents of the contraception regs regularly describe the regs as the “abortion pill mandate,” are those opponents – the very organizations representing most of the plaintiffs in these cases – going to turn around and support a government program that uses taxpayer dollars to provide women with “abortion pills”? Don’t bet on it. Implicit in Professor Sisk’s post is that contraception is junior-varsity healthcare, and that it’s okay if there are gaps in contraception coverage or if women are left to fend for themselves to get contraception. That is a dubious policy position, and it was wisely rejected by the political branches. However one comes down on the religious objections that are now being asserted in court, Professor Sisk’s view – that government officials are “gleefully impose[ing] their views on opponents by needless overreach” – makes sense only if you assume that certain people’s religious views are the only views that matter, no matter how much that burden third parties. On Feb 17, 2014, at 6:38 PM, Sisk, Gregory C. <gcs...@stthomas.edu<mailto:gcs...@stthomas.edu>> wrote: Derek Gaubatz’s post concludes with a point that is too often lost in the sound and fury about the imposition of the abortificient/contraception mandate on employers of faith – which is that the mandate is dubious public policy (even on its own terms) and this dispute could have been avoided but for political considerations. This is another sad episode in modern politics in which those with power – of either party and both sides of the spectrum – gleefully impose their views on opponents by needless overreach when they get a political victory. The last thing that the Catholic bishops or that Notre Dame wanted was this legal fight. The Administration imposed the mandate so broadly to score ideological points with its pro-choice constituency, adopting a policy with a weak connection to significant public policy or health care needs, given the wide and inexpensive availability of contraception. Regardless of the strength of the RFRA and constitutional claims by various employers for exemption from the abortifacient/contraception mandate, the lesson that should be taken away is the need to stop the scorched earth approach to politics. I do fear that we have entered into a dangerous period in American politics in which winning an election and then passing the legislation that your side prefers is not enough. True political victory, it seems, requires the winners to grind the losers into the dust. Those on the other side of the debate must be broken to the wheel of whatever ideology is in the ascendancy at the moment. This take-no-prisoners approach – applied by those on both sides of the ideological spectrum when they gain power – has left behind a growing number of political, social, and psychological casualties in our civil society. Witness the understandable fears of people in intimate relationships that they will be denied comfort at the hospital bed or their loved ones left without benefits after their death because the political winners in many states emphasized opposition to same-sex marriage by adopting a Super-DOMA that threatens to upset any established relationship between people of the same sex. It was not enough to ban same-sex marriage. No, it had to be ratched to the next level, leaving no doubt as to who was on the losing side. Or consider the efforts in some states by pro-gun forces to not only secure the right to carry firearms in public, but to insist on carrying the weapon into private places of business and public accommodation. It isn’t enough to win, it seems; rather, we have to make sure the other side must acknowledge our victory by being forced to play along with us. Or we find a wedding photographer in yet another state who objects to participating in a same-sex commitment ceremony and finds herself under investigation by the state and threatened with sanctions, not because of any lack of supply of willing photographers for same-sex ceremonies but to set down an ideological marker that “discriminators” must be driven from public society. Likewise, while there are plenty of adoption agencies in Massachusetts that place children with same-sex couples, the political powers that be in the state could not tolerate a Catholic adoption agency that had a different point of view. Those in political power preferred to see the Catholic adoption agency close its doors, despite its niche for hard-to-place speacl needs children, rather than accept a deviation from political orthodoxy. And more generally we can look at the tragedy of ruined lives in overflowing prisons following from overly aggressive criminal policies that fit a political agenda of one kind or another at one time or another. The actual public policy rationale for the abortifacient/contraception administration mandate against objecting employers of faith is shockingly thin (and dubiously connected to the text of the legislation enacted by Congress). To begin with, no one objects to contraceptive medications being used for a multitude of medical purposes. Neither Notre Dame nor the Little Sisters nor even Hobby Lobby have ever objected to the prescription and coverage of contraceptive medications for other medical purposes. That medical need argument is a red herring. Nor does anyone propose that contraception be made illegal or banned from the pharmaceutical marketplace. Notre Dame, the Little Sisters of the Poor, and Hobby Lobby are not lobbying for legislative bans or organizing boycotts of contraception manufacturers. Instead, a few employers of faith narrowly object to being required to participate in the payment/provision of such medications for the very purpose of ordinary contraception (by Catholic employers) and for what is seen as accomplishing abortion (by many more). Now we can debate whether these employers really are being required to so participate or to be complicit, argued about whether the belated partial accommodations created by the Obama administration are sufficient, etc. But, again, the entire mandate is being driven by the “War on Women” political myth, which is being leveraged here for partisan political gain, largely divorced from the real needs of medical treatment on the ground. Again, this current dispute is about ordinary contraception that is not medically-indicated for other reasons. And such contraception is widely, readily, and cheaply available – whether or not Obamacare remains in effect and whether or not this mandate is upheld against objecting employers of faith. The reality is that ordinary contraception – which again is what is really at stake in this over-hyped battle – is available for less than $10 per month at tens of thousands of pharmacies in every community in the country (yes, even in South Bend, Indiana). This cost is much less than most people pay as co-payments for life-saving medications under Obamacare standards. Contraception coverage must be provided for free under Obama administration regulations. But medications on which people rely to survive from day-to-day remain subject to significant co-pay obligations. Why has contraception has been singled out for preferred treatment? Why is something easily available for less than the cost of a pizza being portrayed as a civil rights issue? And why is there a need to impose any insurance mandate when there are already thousands of government-subsidized family-planning centers that provide contraception at no cost? Answer: The abortifacient/contraception mandate on employers was a political signal to ideological supporters by the winning side of a political battle. The larger question facing all of us is whether we can find a way to live together in a truly diverse country. To be sure, on some issues, compromise may be elusive and thus there will always be winners and losers. That’s politics. But of late we have stopped even searching for compromise. We wave our banners in the face of our opponents and, when power is ours, we drive them down, characterize them as evil or bigoted, and seek to have their perspective banished from polite society, using every power of law (and culture and politics) to marginalize them. Moreover – and while this is more a tendency of the left than the right, the right is not without fault – we look to government and law to accomplish societal goals, drowning out other voices, weakening intermediary organizations, and ignoring the casualties when the blunt force of law and government is wielded. This is the path that promises continued conflict, as well as the continual erosion of freedom. If we are not willing to acknowledge that value may lie in other points of view – and then granting space to counter-cultural messages and groups (whatever may be the counter to the culture at the moment) – we soon may find ourselves living in an impoverished society that can no longer characterize itself as truly free. As Learned Hand once said, the Spirit of the Liberty is the spirit that is not too sure that it is right. More humility in political leadership and greater tolerance for others of differing political views could avoid many of these problems and produce creative means for solutions that cause less conflict. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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