Sunday, March 4, 2012

Distorting the Constitution: Why the Right is Wrong on Contraception

Recently, contraception has gotten a great deal of media attention.  It’s been talked about by all of the Presidential candidates as well as by religious leaders, regular GOP politicians, and political pundits.  Specifically, they’ve been using it every time they attack PPACA and President Obama for requiring religious organizations (not churches directly, but places like religious schools, charities, and hospitals) to provide contraceptive coverage in their health insurance.  Those opposed to the contraceptive coverage mandate are missing three main points in their argument.  In response, those in favor have just presented the entire argument as being about women’s rights.  So, thus far, the discussion has sounded a lot like a pair of third graders arguing over something.  “I’m right”, “No, I’m right”, “Nuh uh!”, “Uh huh!”, “My dad can beat up your dad!”  It’s completely sickening.  Instead of allowing the argument to continue in such a juvenile way, I want to talk about those three main points that the opponents are missing.  I want to turn the argument to why the opponents are wrong.
Framing the argument.
The first major mistake that has been made in the argument against the coverage mandate is that opponents have incorrectly presented what the mandate actually covers too narrowly.  The mandate to provide “birth control” or “contraceptive” coverage is not just about controlling birth or preventing pregnancy as the opponents frame it to be.  The “birth control” pill contains the active ingredients estrogen and progestin in varying quantities.  There are some variants that contain other active ingredients or none of either estrogen or progestin, but the vast majority of pills are a combination of these ingredients.  These chemicals are prescribed for a number of medically legitimate reasons that have absolutely nothing to do with pregnancy prevention, chief amongst these reasons are to help modulate irregular menstrual cycles, treatment of endometriosis, and treatment of polycystic ovary syndrome.  Deliberately focusing the argument only on the pregnancy prevention use of the pills is misleading and unethical.
The First Amendment argument.
Whenever this topic comes up, opponents immediately start talking about how mandating coverage of birth control or contraceptive pills (I’m just calling them “the pills” from here out to eliminate the confusion that they’re only used for preventing pregnancy) is a violation of their First Amendment rights and their religious liberty because it forces them to provide coverage for something that they’re morally opposed to.  For the sake of discussion, I’m going to split the First Amendment argument and the religious liberty argument into two parts.
When somebody brings up the First Amendment rights argument, they’ve just told you that they have either never read the Constitution, or they don’t understand what the text of the First Amendment talks about.  Let’s take a look at the actual text:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
For our discussion, I’m going to ignore everything beyond the first semicolon.  I think that it’s pretty safe to say that the freedoms of speech, the press, peaceable assembly, and the right to petition the government aren’t in question here.
The original text of the Constitution carries no emphasis.  There’s no bolding, italicizing, or underlining to guide us in determining where the emphasis is supposed to be.  So, let me add some emphasis.
1.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
 2.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
3.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
4.) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
There’s a few other ways that you could place emphasis, but I think that bolding “no” or “law” or “free” would not provide any additional information. 
Collectively, there’re a few things that can be taken from this.  From example one, we know that the government is prohibited from passing a law granting any type of preference to religion.   In example two, we learn that the government is prohibited from passing any law which establishes a state religion, and also prohibited from grating preference to religious organizations (looking at both definitions of establishment).  Example three reaffirms the second part of example two and shows that the government can pass a law which grants preference to non-religious establishments.  Finally, example four shows that the government may not prohibit the practicing of religion, but can limit the practicing of religion.  This is very critical as it is the provision which means that you cannot use “my religion required me to kill them” as a legal defense.
What we learn from actual analysis of the text of the First Amendment is that if the government were to allow an exemption from contraceptive coverage for religious institutions, it would be in violation of the First Amendment.  Refusal to provide such an exemption is hardly the trampling of the rights of the religious that they make it out to be. 
“But what about Citizens United?” somebody might argue.  “The Supreme Court ruled that corporations are entitled to the same rights as individuals.”  Well, they’d be right.  But they’re still missing a key factor.  As my mother would always say “your right to throw a punch ends where somebody else’s face begins.”  This is a great way of explaining one simple point: the rights of one citizen do not allow them to infringe on the rights of another citizen.  This logic extends to corporations and companies as well.  No company has the right to force an employee to follow a specific belief system.  They cannot legally control the thoughts or beliefs of an employee.  While the institution may find birth control usage of the pills to be morally abhorrent, their employees may not.  In fact, the other followers of that belief system may not.  This is shown in that 98% of Catholic women who have had sex use birth control (2006-2008 data from the Guttmacher Institute).  
The Religious Liberty Misunderstanding
I get rather miffed every time that I hear a politician or member of the religious right throw out the phrase “religious liberty” when arguing that employers have some sort of right to abridge the rights of employees.  Religious liberty is a very simple concept that has been distorted by the religious right over the years to mean whatever they want it to mean.  Unfortunately, any intelligent human being can see through it.  Religious liberty is one of the cornerstones of this country.  One of the major reasons that Europeans came to this land in the first place is to have a place where they could practice their religion as they liked.  Religious liberty is just that.  Religious liberty means that I believe what I believe and you believe what you believe and we cannot force one another to practice each other’s religion.  Religious liberty means nothing more than what the Constitution states.  It’s the ability for an individual to believe what they like (or not) and practice how they like (or not) without the interference of others. 
When it comes to the religious liberty of corporations and companies, it gets tricky, but comes back to a very basic principle.  The rights of an employee are equal to the rights of the employer.  Employees are not slaves and cannot be forced in any way to abide by the religious preferences of their employer.  Now this isn’t to say that employers don’t have religious liberty, they do.  An employer has every right to close their shop on Sunday so that they can attend church.  They can close it on Saturday so that they can attend temple.  They can close it early every time that the Red Wings have a home game if they like.  They cannot close it on Sundays and require their employees to attend church with them as a condition of employment.   The employer can choose to not use contraceptives themselves, but they cannot restrict an employee’s access to coverage. 
In all, when it comes to mandated coverage of pills that are most commonly used for birth control, the religious right isn’t.