DC Circuit: ACA Contraceptive Mandate Does Not Impose Burden On Religious Groups

Via Richard Lyon at Kos, we get the word from CBS-DC:

WASHINGTON — A federal appeals court on Friday rejected a challenge to Obamacare that would have enabled non-profit religious organizations to avoid government-approved contraception programs.

In a 3-0 decision, the U.S. Court of Appeals for the District of Columbia Circuit concluded that the challenged regulations do not impose a substantial burden on religious groups.

...

Now it only remains for the Supremes to reverse... [/sigh]

What Would It Take To Drive A Woman To A ‘Second Amendment Solution’?

Read this opinion piece by Robin Marty at TPM for a few examples of anti-abortion legislation possible (not likely, I think) if we end up with Republicans dominating both houses of Congress.

Remember: under Roe, a woman has a constitutional right to an abortion, subject to some restrictions which the current Congress and Supreme Court seem hellbent on extending. Those efforts notwithstanding, the woman's right is constitutionally protected, as a fundamental right to the integrity of one's own body should be.

Remember also that most of the same zealots who want to ban abortion also want to ban or severely restrict contraception. Even most Republicans whose lives I know anything about use contraception. Banning contraception is madness.

All you anti-abortion women-hating maniacs, think about what your approach means:

You are already prepared to declare women who have miscarriages murderers; several state legislatures have already attempted to do just that (e.g., Kansas, Georgia). (You almost certainly view me, along with every other supporter of a woman's constitutional right to choose abortion, a murderer.)

If you go forward with this... if you render many women and supporters of women's rights murderers under your obscene new laws (or under no law at all, as happened in Dallas in September; please read about this astonishing incident)... if women are already deemed murderers for suffering miscarriage, a phenomenon thought to end 10% to 20% of all pregnancies through no intent of the woman... what do they have left to lose by going after you?

Right. You give women motive, you give them opportunity, and in this society, means are truly no problem. Have a nice day. [/sarcasm]

Watch Bill Moyers As He Interviews Linda Greenhouse And Dahlia Lithwick On Hobby Lobby And The Supreme Court...

... but put your credit card and your bullhorn out of reach first, because you may find yourself thinking you need to make a trip to DC to engage in a bit of civil disobedience... no, just watch the video to inform your own condemnation of this decision, its consequences even in the short term, and the whole bloody Catholic Supreme Court as currently configured by GeeDubya Bush and Barry Obama. I can pretty much guarantee you that if you are a reader of this site, this interview will make you angry!

Court Gives Broader Scope To Contraceptive Ruling, All 3 Female Justices Object (MAJOR UPDATES)

Very briefly, 'cause it's an AP article:

WASHINGTON (AP) — A divided Supreme Court on Thursday allowed, at least for now, an evangelical college in Illinois that objects to paying for contraceptives in its health plan to avoid filling out a government document that the college says would violate its religious beliefs.

...

Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor said they would have denied Wheaton's request and made the college fill out a form that enables their insurers or third-party administrators to take on the responsibility of paying for the birth control.

...

So now the sheer obscenity of the Court's conservative majority position has divided the Court along... well, gender lines as surely as partisan lines. Great. Just great. [/irony]

And having for the most part gotten what they wanted regarding abortion, they're targeting contraception. If I were a woman, I wouldn't expect them to stop there.

Conservatives, including the five Justices (plus one Justice normally not so conservative) in the majority of this ruling, make several outright misrepresentations of contraception:http://www.thenation.com/blog/180509/supreme-court-has-already-expanded-its-narrow-hobby-lobby-ruling?utm_source=sailthru&utm_medium=onsite

• It is a real stretch to say that any modern contraceptive method is an abortifacient. As a matter of scientific fact, they don't.
• Many institutions (e.g., Hobby Lobby) who rant on forever about contraceptives for their employees nonetheless do business with China, where family size regulation by abortion is not uncommon.
• The consequences of an unintended pregnancy brought to term can be devastating to young women, poor women and working women. The consequences (both circumstantial and psychological) of an abortion as opposed to an unwanted child are, despite contrary claims, almost always positive.

In other words, since the Hobby Lobby ruling, it's going to be open season on women of childbearing age. Ladies, prepare for second-class citizenship, or prepare to fight like hell!

(Now may be a good time for a contribution to Planned Parenthood if you're in a position to afford it.)

ADDENDUM: also very much worth reading is Lyle Denniston's post at SCOTUSblog.

AFTERTHOUGHT: this is a women's issue, of course, but it is much more than that: it is a constitutional separation-of-powers issue. It looks very much to me as if the Supreme Court is gradually using traditional judicial review to supplant parts of congressionally passed and presidentially signed laws, as well as to overrule legal executive orders to countervail their effect on policy. If I were president, or if I were in Congress, I'd be plenty angry!

AFTERTHOUGHT: still think it's "only" a women's issue? Think again, this time about a statement by Zoë Carpenter at The Nation:

... Business owners now have a new basis for trying to evade anti-discrimination laws and their responsibilities to their employees. Religious liberty is already the rallying cry for conservatives looking for a legal way to discriminate against LGBT Americans; other business owners have tried to use religion to justify opposition to minimum-wage laws and Social Security taxes. Faith groups are already trying to capitalize on the Hobby Lobby decision out of court; on Wednesday, a group of religious leaders asked the Obama administration for an exemption from a forthcoming federal order barring federal contractors from discrimination on the basis of sexual orientation or gender identity.

Introducing religious belief as a basis for legal action eviscerates the freedom-of-religion clause of the First Amendment... we don't have to guess what will happen; it's already happening, and we can watch the whole sorry business unfold right away.

AFTERTHOUGHT:  Melissa Harris-Perry explains How the Supreme Court Undermined Women's Citizenship. (H/T l'Enfant de la Haute Mer, in comments.)

Supremes On Hobby Lobby (And Similar Corp's, Partnerships, Etc.): F*** The Law, You Can Do Anything Your Corporate Religious Beliefs Tell You

From Sahil Kapur of TPM, the decision was, of course, 5-4, along partisan lines. Justice Ginsburg says the Court has "wandered into a minefield"; she is right, of course, but it's worse than that: the Court has already tripped a mine and the explosion has started. Here's an excerpt from Justice Ginsburg's opinion (please don't stop here; read her entire opinion):

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. The Court's determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.

Justice Scalia
Father Antonin

Ginsburg also noted that "... the case, brought by the Christian owners of the retail chain Hobby Lobby, marks the first time the U.S. Supreme Court has exempted a for-profit corporation from a generally applicable law on religious grounds."

As best I recall, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," i.e., Congress cannot declare an official religion for the nation, nor can they prohibit people from worshiping as they damned well please. But as of today, what Congress may not do, business entities may freely do, imposing the practical consequences of their own religious beliefs on their employees, even in defiance of laws passed by Congress... and the Supreme Court will back them up as they do this.

What's next? How long before Hobby Lobby (and similar businesses) send around a general memo that all employees who want to keep their jobs will appear Sunday morning at Holy Smokes Catholic Church for the early service? And when they do, will the Supreme Court back the companies, on the grounds that the RFRA is violated when employees attend a different church, or no church at all?

Is anyone else reminded of Atwood's The Handmaid's Tale? Do not, for even a moment, think "it can't happen here"!

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AFTERTHOUGHT: a bit more reading and contemplating led me to ask and answer this question:

Q: What makes Burwell v. Hobby Lobby like Bush v. Gore?
A: Both rulings contain explicit self-limiting text that restricts the use of the decision to the current case only, i.e., neither can be used as precedent to rule on cases evoking similar underlying legal principles... because, says the Court, there are no underlying principles to be invoked.

Bush v. Gore:
[from the Court's Opinion]

• Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

Burwell v. Hobby Lobby:
[from the Court's Syllabus]

• This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandate e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

[from the Court's Opinion]

• In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Let's simplify the latter a bit: the decision is NOT to be applied generally to any old insurance-coverage mandate that conflicts with an employer's religious beliefs, but rather only to the contraceptive mandate in the ACA. Why is the applicability to be thus restricted, when the entire context is virtually the same? Because we [the Court] say so, that's why.

The Court majority's duck-and-cover on the whole issue is breathtaking: their restriction of application is essentially arbitrary, but they want to be sure no one uses it as precedent in another future case... just as they did in Bush v. Gore. I am no lawyer, but if I were, I suspect I'd find this little tap-dance both incompetent and determined to effect a specific outcome to the detriment of women's health. This song-and-dance really sucks; we deserve better from our highest court.

Are 'Good Male Contraceptives' Possible, Or Is It 'Pick Two Of The Three Attributes'?

Birth control: old standards

Valerie Tarico of RH Reality Check discusses eight new possibilities for male contraceptives (some completely new to me) in various stages of testing, and of course necessarily examines women's and men's attitudes, old and new, American and international, toward men's taking responsibility for pregnancy prevention... not all that common through history. Here's an excerpt that gets to the point:

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On the surface, it may seem that scientific challenges are the primary barrier to excellent male birth control. A woman produces an egg only once each month, while men produce millions of sperm daily. Female fertility can be detected and timed. It starts later and ends sooner than male fertility. But those in the know say biology isn’t the problem. The question is one of politics and priorities. The National Institutes of Health summed up the problem [.pdf] in direct (if wonky) terms over a decade ago:

The lack of progress in developing affordable, safe, effective, and reversible male contraceptives is due not to the biological complexity involved in suppressing spermatogenesis [the production of sperm], but rather to social and economic/commercial constraints.

Today, research on male contraception is 50 years behind research on female contraception. The difference is as much as anything an artifact of history and tradition, which ripple into the present. ...

...

Well, yes. Perhaps some progress on that 50-year gap will be made in the more progressive nations of Western Europe, and possibly against all odds in parts of Asia, where the incentives for limiting family size are often matters of both health and law. But I doubt seriously the advances will be made in America or by Americans. If gender relationship stereotypes in America weren't already beginning to harden in highly asymmetric ways, there is always religion to obstruct real progress... and religion's new best friend, national politics. I am not hopeful.

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(On a not completely unrelated matter, a federal judge has declared the part of Texas's new abortion law (the one State Sen. Wendy Davis filibustered unsuccessfully) requiring clinics to have admitting privileges at a nearby hospital to be unconstitutional, ruling that the provision “lacks a rational basis and places an undue burden on a woman seeking an abortion.” Note two things: 1) Judge Lee Yeakel did not declare the entire law unconstitutional, only the one provision; and 2) the six Catholics of the US Supreme Court have yet to get their soiled mitts on the law. Don't expect this ruling to be sustained.)