Obama Administration Offers Olive Branch on Birth Control Rules

In my monomania yesterday on the foreclosure fraud settlement, I didn’t attend to the raft of developments on the President’s birth control regulations and the backlash from religious groups, onto which Republicans have piggy-backed. This has caused some competing actions on the Democratic side. On the one hand, you have in particular Democratic women, speaking out in favor of the President’s decision, and expressing shock that we’re still talking about birth control in the 21st century as if it were a controversial issue. On the other hand, pro-life Catholic Democrats like Bob Casey and Tim Kaine abandoning the President’s policy. Kaine, running for Senate in Virginia, clarified that he supported the birth control mandate but wanted a larger religious exemption. And this is the middle ground we can expect today.

The White House will announce a move to accommodate religious organizations on its rule for health insurance coverage of contraceptives, sources familiar with the matter said on Friday.

The Obama administration is seeking to quell a firestorm from Catholic Church leaders, Republicans and others who have said the regulation is an attack on religious freedom. The proposal is unlikely to satisfy church leaders, the sources said.

The proposal will aim to show flexibility toward religious organizations that have criticized the policy, but will preserve the central White House goal of ensuring that women employees of religious institutions, including schools and hospitals, receive full coverage of contraceptives in health insurances plans.

The administration has been looking at several state laws that let religious employers opt out of covering birth control in their insurance packages, so long as they refer women to a provider that will offer the benefit at low cost.

This is the “Hawaii compromise,” but that’s a non-starter on all sides. In particular, the Catholic bishops appear to want the whole enchilada (pardon the pun):

The White House is “all talk, no action” on moving toward compromise, said Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops. “There has been a lot of talk in the last couple days about compromise, but it sounds to us like a way to turn down the heat, to placate people without doing anything in particular,” Picarello said. “We’re not going to do anything until this is fixed.”

That means removing the provision from the health care law altogether, he said, not simply changing it for Catholic employers and their insurers. He cited the problem that would create for “good Catholic business people who can’t in good conscience cooperate with this.”

“If I quit this job and opened a Taco Bell, I’d be covered by the mandate,” Picarello said.

Picarello won’t mention that, if he opened a Taco Bell in 2001, he’d be covered by the mandate, which was made law through an Equal Employment Opportunity Commission opinion. The only difference that the Obama regulations added was that preventive services like birth control could not include a co-pay. That’s pretty much it. Even religious employers were not exempt from the EEOC ruling:

In December 2000, the Equal Employment Opportunity Commission ruled that companies that provided prescription drugs to their employees but didn’t provide birth control were in violation of Title VII of the 1964 Civil Rights Act, which prevents discrimination on the basis of sex. That opinion, which the George W. Bush administration did nothing to alter or withdraw when it took office the next month, is still in effect today—and because it relies on Title VII of the Civil Rights Act, it applies to all employers with 15 or more employees. Employers that don’t offer prescription coverage or don’t offer insurance at all are exempt, because they treat men and women equally—but under the EEOC’s interpretation of the law, you can’t offer other preventative care coverage without offering birth control coverage, too […]

Not even religious employers were exempt from the impact of the EEOC decision. Although Title VII allows religious institutions to discriminate on religious grounds, it doesn’t allow them to discriminate on the basis of sex—the kind of discrimination at issue in the EEOC ruling. DePaul University, the largest Roman Catholic university in America, added birth control coverage to its plans after receiving an EEOC complaint several years ago. (DePaul officials did not respond to a request for comment.)

This has not stopped another Senate Democratic wanker, Joe Manchin, to team up with Marco Rubio on legislation that would expand the “religious exemption” to such a degree that any employer who stood up and said “religious exemption” would be able to get birth control coverage dropped from their employer-derived insurance plan. This is all happening in a twilight zone where a mandate of this type hasn’t been the law for 11 years, and where 28 states didn’t offer an identical religious exemption on this policy, and where religiously affiliated institutions in those communities weren’t already dealing with it.

Sen. Kirsten Gillibrand said on MSNBC yesterday that she spoke to the President and that “he’s committed to making sure that all women in American have access to affordable birth control.” This compromise is likely to be unsatisfying to birth control advocates as well, because it makes women jump through hoops for legal care that 98% of all Catholic women, to take one example, use.

Republicans weren’t even totally united on this, by the way. No less than Sen. Tom Coburn said yesterday this debate has been “blown out of proportion.”

Finally, a Catholic TV network has sued to block the mandate, which is 11 years old. I guess they just got around to it. Incidentally, the Supreme Court refused to hear a case on religious exemptions to a birth control mandate in New York State in 2007.

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