Contraceptive Coverage Rules: Not a New Thing

The issue of contraception coverage and religious charities is not a new one, despite the way it may sound.

One of the curious aspects of the current brouhaha over rules regarding the coverage of contraceptives is that despite the way it has sounded, these rules are not new and nor is the issue.

NPR has a pretty good run-down of this fact here:  Rules Requiring Contraceptive Coverage Have Been In Force For Years

employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That’s when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act. That law is, in turn, an amendment to Title VII of the 1964 Civil Rights Act, which outlaws, among other things, discrimination based on gender.

Further, these rules have specifically been in effect in two of the largest states (California and New York) and has survived court challenges.  Further, when given the chance to review the New York law, SCOTUS declined to hear the appeal from the state’s supreme court (NYTSupreme Court Turns Down Cases on Religious Separation).

Politically, by the way, I think that while this issue stokes the passions of key elements of the GOP base (because of the linkages to both abortion and health care reform—both real and perceived), I have serious doubts about the degree to which this creates problems in the general electorate for Obama (especially in terms of Democrats, self-identified independents, and even moderate Republicans) because, quite frankly, most people really, really, really like contraceptives.

One other observation, and while this is going to sound like snark, I am actually serious:  I feel like I have heard more passion and proactivity from the Bishops on this issue in just a few weeks that I have heard from them in a decade over the church’s child sex abuse scandal.   This does not help raise my opinion of the church’s hierarchy.  It comes across as more concern over potential people than over actual ones (and I am not referring here to the abortion question, but to the contraception one alone).  Harsh?  Certainly.  Fair?  I think so.

3d forbidden sign on white with spermatozoon: contraception concept image via Shutterstock.

FILED UNDER: US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James says:

    Where on earth did you get that clipart?

  2. Hey Norm says:

    “…I feel like I have heard more passion and proactivity from the Bishops on this issue in just a few weeks that I have heard from them in a decade over the church’s child sex abuse scandal…”

    I made the same point…in a cruder fashion…last week.
    This is just one of those nonsense kerfuffles that Republicans chose to engage in rather than actually governing.
    Imagine for a minute we aquiesce to the rapists bishops. The what happens when corporation owner Abdul doesn’t want his female employees to see male doctors and vice-versa. This has never been about Religious Freedom…it’s about fellows in pointy hats and flowing velvet gowns getting their way and evryone getting screwed (pun intended).
    As Jon Stewart put it last night…the end result of the zealots winning the argument would be chaos.

  3. James says:

    Oh ha, now I see the link. Anyways,

    Harsh? Certainly. Fair? I think so.

    Agreed. The Catholic Church as an institution is clearly more concerned with maintaining it’s political muscle than it is protecting its youngest and most vulnerable members.

  4. Brummagem Joe says:

    A well nigh perfect summary of reality Steven. All this is old hat and just another of those faux controversies that Republicans like to whip from time to time. I think it’s going to fizzle after Obama made that move on Friday since both Republicans and Catholics are divided over the issue. Politically it’s potentially disastrous for the the GOP because when you get down to it what’s going on here is that a particular religion is trying impose its own doctrinal views on all workers via employment contracts.

  5. James Joyner says:

    This part actually is new:

    Here’s the rub: The only truly novel part of the plan is the “no cost” bit.

    The rule would mean, for the first time, that women won’t have to pay a deductible or copayment to get prescription contraceptives.

    I’m not sure why that changes anything philosophically, though. Although, I must say, it strikes me as pandering rather than serious policy. It’s not at all clear why contraceptives–which I heartily endorse–ought to be free when medicine for people who are actually sick requires out-of-pocket payment.

  6. @James Joyner: I won’t argue with that. I am more reacting, as you basically note, to the philosophical (and political) arguments.

    I also always find it a tad annoying when things like this, which have been around for a decade (or more) are treated like something brand new and Outrageous!!

    The payment issue just hits on the ongoing illogical (which seems to be deepening) of of health care financing system in general.

  7. James says:

    @James Joyner:

    Although, I must say, it strikes me as pandering rather than serious policy.

    I disagree. It’s a concept of liberty. The timing, spacing and frequency of childbirth should have nothing to do with a woman’s health history, employment status or economic situation. Women should be free to choose when they have children, and who they have their child with.

  8. mattb says:

    @Hey Norm: and @Steven:
    Even if one skips the entire child molestation issue, imagine what might happen if the Bishops preached with this much fervor on one of the many issues whether the church breaks with conservative dogma.

    Let’s not forget that, unless I’ve missed an encyclical, the Catholic Church’s is explicitly:
    – Anti war
    – Anti death penalty
    – Pro universal health care
    – Pro social safety net

    I also still have yet to see a good argument for why, if we follow the contraception as violation of religious freedom argument, that the state can still legal prosecute parents whose children die after medical care is withheld on religious grounds.

  9. John Peabody says:

    I have to try to make a difference between the Church’s passion-of-the-moment and their evident lack of passion for sex abuse scandals.

    The current reaction is from something immediate: the announcement of the determination of the rules as they apply to non-church religious institutions. It was months in the making; some have been disturbed that the Bishops actually had planned a response in advance of the announcement.

    The sex abuse horrors have trickled slowly over many, many years. But each new incident occasionally turns on the machine of attention, and for seven days, we hear nothing but the horrors of these bastards that harm our children.

    The church simply can’t win on these issues. No matter the goodness and success that the church brings to millions, they will always remain an easy target for those who take the horrific actions of some and project them on the entire church leadership, and indirectly, all Catholics, and even, all Christians.

    The snark version of my comments would be: Hey, should the church cower in a corner and say, “boy, we messed up on that pedophilia thing! We’ll ignore any attacks on our belief, since we don’t deserve fair treatment.”

  10. mattb says:

    @James:

    I disagree. It’s a concept of liberty.

    I think you missed @James Joyner‘s point. He’s not suggesting that making contraceptives available is the issue. It’s the question of making them free.

    If I read JJ correctly, his question is why selectively make contraceptives free, while not doing the same for other medical items. That’s entirely different than saying that insurance plans should not cover contraceptives.

  11. @John Peabody:

    The church simply can’t win on these issues. No matter the goodness and success that the church brings to millions, they will always remain an easy target for those who take the horrific actions of some and project them on the entire church leadership, and indirectly, all Catholics, and even, all Christians.

    For what it was worth, I was very deliberate at targeting my statement to “the Bishops” and not to Catholics in general.

    The snark version of my comments would be: Hey, should the church cower in a corner and say, “boy, we messed up on that pedophilia thing! We’ll ignore any attacks on our belief, since we don’t deserve fair treatment.”

    Not at all. However, I would like to see the church hierarchy be just as zealous in addressing evil within its ranks as it is when its beliefs are challenges by secular policy. At a minimum, the perception (and, I fear, the reality) is that they simply take the attacks more seriously than they do their own shortcomings. I suppose that makes them human, but it also leaves them open to legitimate criticism.

  12. James says:

    @mattb: I understand James’ point is not about the availibity of contraceptives, but the cost. That’s my point as well

    The timing, spacing and frequency of childbirth should have nothing to do with a woman’s health history, employment status or economic situation.

    At any rate, you can be concerned about the cost of giving away contraceptives. But it’s much more cost effective for us to provide contraceptives to women free, than to it is pay for maintenance of a child being raised by a woman who is ill-equipped to care for it.

  13. WR says:

    @John Peabody: ” No matter the goodness and success that the church brings to millions, they will always remain an easy target for those who take the horrific actions of some and project them on the entire church leadership”

    Perhaps if the entire leadership — up to and including the current Pope — hadn’t actively tried to cover up those horrific actions, even at the cost of exposing millions more children to abuse, they wouldn’t remain such an easy target.

  14. mattb says:

    @James:
    Completely agree with the economics that you mention. But that can also become a classic slippery slope argument of sorts. I can quickly list of a lot of other basic/preventative medical care, that should also be “free.” But currently our system isn’t set up to provide it as such en mass.

  15. James says:

    @mattb:

    But currently our system isn’t set up to provide it as such en mass.

    I agree. Although I think that’s partly an artifact of our budgetary preferences for reducing the tax burden on our highest income earners, and regime-changing foreign wars, than it is anything else.

  16. anjin-san says:

    The church simply can’t win on these issues.

    Sure they can. They can stop enabling/protecting sexual predators.

  17. mattb says:

    @James:
    Partially. Though the American “Independent” steak — “don’t you dare seem to take away my options or otherwise tell me what to do” — has a lot to do with it. As does the entire knee jerk fear of “communism/socialiam” that we’ve been indoctrinated into for generations.

  18. michael reynolds says:

    @James Joyner:

    contraceptives–which I heartily endorse

    Well, duh: you’re a father. We’re all enthusiastic about birth control. We’ve seen what happens.

  19. michael reynolds says:

    The American Bishops as a body, as an organization, enabled child rape, covered up child rape, protected child rapists and smeared the victims of child rape.

    They have no business speaking on any issue. If they had an ounce of integrity they’d have decamped en masse to a monastery, there to take vows of silence and pray for forgiveness.

    The Bishops are not Catholics, they are the parasites that feed on Catholics. Remember: their victims were their own.

  20. John Peabody says:

    Michael, if you knew of an honest, good Bishop, would you want him to quit, or do what he can to turn the ship in a better direction?

    Steven Taylor and WR: thank you for respecting people who post respectfully. Not a snark, I mean it.

  21. @John Peabody: Thanks for saying so. I honestly do try!

  22. michael reynolds says:

    @John Peabody:
    I think there are certain organizations so corrupt and debased that they need to be disassembled and put back together from scratch.

    That good bishop of yours hangs out, works with, makes common cause with, men he knows to be guilty of these heinous crimes. Redemption involves contrition and penance. It doesn’t come with a brisk, “Let’s move along. . .”

  23. John Peabody says:

    Michael, how many men are guilty? How many are innocent? A random Bishop is likely never had personal contact with any of the offenders, certainly not having out or working with them.

    I’m out for the day- I’m not making this up, I’m off to church to put on my robe and participate in a funeral.

  24. Hey Norm says:

    @ James…
    I do not know the actual reasoning behind free contracetion…but intuitively…contraception is much less costly than either abortion or live birth. So charging people for something that saves the insurance company money should appeal to insurance companies…but no one else.

  25. WR says:

    @John Peabody: Thank you. Many of my posts are snark at those who deserve nothing but, but you are a serous commenter and deserve serious response.

  26. PD Shaw says:

    Sigh, how serious should one treat the NPR article when it

    (a) does not mention that most Catholic facilities are self-insured and thus preempted from state laws under Federal ERISA. That’s why the federal regulation is causing consternation, when those state laws did not; Obama is eliminating the preemption.

    (b) does not mention that the highest court (Eighth Circuit Court of Appeals) to review the 1978 PDA law found that it does not apply to contraception; it deals with discrimination against pregnant women. (Summary) Opinion

    If one were to rely on that NPR piece one would be completely confused about the issues involved here. Who did NPR pay to write this piece, Planned Parenthood?

  27. anjin-san says:

    how many men are guilty? How many are innocent?

    This is a systemic problem in the church, both the rapes and the enabling of rapists. Arguing about how many angels dance on the head of a pin will not change that.

  28. rodney dill says:

    contraception is much less costly than either abortion or live birth

    …and Cholesterol reducing statins is less costly than bypass surgery. I haven’t seen any reasoning yet why ‘free’ contraception as opposed to treating them like any other prescription, except to pander to certain voters.

  29. James says:

    @rodney dill: This is a basic concept. Women should have the right to choose the timing and spacing of their child birth, regardless of their employment status or economic situation.

    If that doesn’t compel you, then consider that children of parents who are not willing or able to raise them are huge drags on society. They drain taxpayer dollars in child services and education spending, not to mention all the attendant cost of possible incarceration for number of those those that slip through the cracks.

  30. Hey Norm says:

    @ Rodney…
    Cholesterol reducing statins are for treating an existing condition…high cholesterol. They are not preventative in nature. Again…I do not know the reasoning against the co-pays…but this works for me.

  31. michael reynolds says:

    @John Peabody:
    You might as well ask how many Mafia members actually kill people, versus the ones who are just in for the cannoli. As Anjin says above: it’s systemic. Did the bishops rise up in outrage and expel the guilty parties? No? Then they are all guilty.

  32. PD Shaw says:

    Further, when given the chance to review the New York law, SCOTUS declined to hear the appeal from the state’s supreme court (NYT: Supreme Court Turns Down Cases on Religious Separation).

    The problem with the NYT article is that it fails to point out that the Employment Division v. Smith which was the basis of the state supreme court rulings resulted in the passage of the Religious Freedom Restoration Act, which reversed Smith when the federal government is involved.

    Any article which seeks to explain this area of law, at least in terms of the federal government, and does not mention the Religious Freedom Restoration Act is doing its readers a disservice.

  33. Gulliver says:

    Of course, the entire thrust of this article ignores a central reality and is consequently completely misleading. If the fact that there are existing laws regarding providing birth control had any relevance to the issue at hand then – by definition- it would not be an issue. The Cathollic church does, has not, and is protected against being forced to provide services that they find morally incompatible with the practice of their religion. They have never before been coerced by the State to do so, backed by the protections enumerated under the First Amendment and upheld by the USSC. The existing laws don’t include a mandate that ,mandates behavior which is a violation of the religious conscience of individuals and religious organizations.

    This article has absolutely no relevance to the current issue at hand.

  34. Gulliver says:

    Misspellings on previous – rampant throughout – apologies…

  35. PD Shaw says:

    @mattb: In the 1990s, I worked for an anti death penalty organization that was run by a Catholic institution and funded mostly (all?) by the federal government. The program was later killed by Clinton because he was pro-death penalty, but I’m sure remnant of the Catholic service in this area remain even after the feds cleared out.

  36. David M says:

    @PD Shaw:

    does not mention that most Catholic facilities are self-insured and thus preempted from state laws

    If it’s not all Catholic affiliated charities, hospitals, etc then I’m not sure what it proves. We know they don’t like the rules, but have been following them, which was pretty much the point of the original post.

    I’d be curious to hear exactly which institutions are continuing to complain about the rules, especially after the Catholic Health Association came out in support of the compromise solution. Seems to me it’s just the Bishops and the GOP at this point.

  37. Gulliver says:

    @ DavidM

    I’d be curious to hear exactly which institutions are continuing to complain about the rules, especially after the Catholic Health Association came out in support of the compromise solution.

    The CHA has now been publicly chastised by the leadership for that support because it was a premature and unsanctioned statement. The CHA is not an independent body and is bound completely – as all Catholic organizations – by the official decisions made by the leaders of the church.

  38. PD Shaw says:

    @David M: Most businesses self-insure; of those with at least 500 employees, its 82.1% are self-insured. Given the size of Catholic hospitals and universities, I think the burden must shift to those claiming that Catholic hospitals are following these rules when the exemption is so big one can drive a MAC truck through it. It certainly would not make sense to not self-insure, if, as you say, they don’t like the rule.

  39. mattb says:

    @PD Shaw:
    Not sure I got the point of that anecdote,

    I know that the church continues to support anti-death penalty work. But that is specifically discussed in public in the same way.

    For example, I remember the controversies around Kerry receiving the Sacrament based on his position on abortion. Given the number of ways in which Santorum takes positions counter to the church, one could as at what point should his participation be equally controversial?

    I’m not suggesting that any of Santorum’s breaks with Church doctrine, take on their own, in any way equal the hot button-ness of abortion. But the fact that taken in aggregate those positions (in particular his War Hawkishness) don’t raise an eyebrow seems to say something to me about the issues that the church (or it’s spokes people) *really* value.

  40. michael reynolds says:

    @Gulliver:

    The CHA has now been publicly chastised by the leadership for that support because it was a premature and unsanctioned statement. The CHA is not an independent body and is bound completely – as all Catholic organizations – by the official decisions made by the leaders of the church.

    Interesting point of view. And of course the Bishops are in turn subject to the Vatican and the Pope. Right? So this argument is not about American Catholics at all, from where you stand, our issue is with the German gentleman in the swank office in Rome?

    And it is to that gentleman that we must bow? Because it certainly isn’t to actual American Catholics who overwhelmingly support contraception and support Mr. Obama’s specific policy.

  41. David M says:

    The fact that Depaul University has been complying with a similar mandate and providing contraception for several years would seem to support the original post.

    So just because they are large institutions doesn’t mean they have been self insuring, and the federal mandate is nothing new or unprecedented.

  42. rodney dill says:

    @James: You’ve stated some true things, but none are compelling arguments for arguing for no co-pay for contraceptives. The only argument for free are for those women that are so poor they will only be on gov’t assisted healthcare to begin with, and probably at that point all basic medications would (or should) be free.

    I don’t see why a working woman or one on her partners healthcare plan, should possibly pay a co-pay on blood pressure medicine as a preventative measure against stroke or heart attack, possibly pay a Co-Pay for insulin, or any other number of ongoing health maintenance prescriptions, but not pay a co-pay for a prescription for contraception.

    Are you stipulating that a woman with means and a healthcare play would pay $25/month copay for blood pressure medicine, but not bother to pay a $25/month copay for the pill? (These are fictitious number for the analogy, but I’m sure at least some maintenance drug prescriptions are comparable to contraception prescriptions.) A woman’s right to choose timing of reproduction deals with access to these methods not necessarily who pays for it. With the possible exception of the very poor.

  43. David M says:

    @rodney dill: The copay doesn’t matter, as the objections are to having the insurance policies cover contraception at all

  44. PD Shaw says:

    @rodney dill: I there there is the matter of the copay and also choice of contraceptive. AFAIK the state laws require similar treatment with other prescription drug benefits, but that can mean coverage only for generics and possibly only prescription drugs, and not inserts or patches. IOW, I would guess most of the policies cover generic pills (which only cost $20 – $25 per month), charge a steep copay for non-generic pills, and don’t pay for some forms of contraception.

    Just like other healthcare insurance.

  45. sam says:

    @PD Shaw:

    The problem with the NYT article is that it fails to point out that the Employment Division v. Smith which was the basis of the state supreme court rulings resulted in the passage of the Religious Freedom Restoration Act, which reversed Smith when the federal government is involved.

    Yeah, well, the Court didn’t think too much of the RFRA:

    RFRA cannot be considered remedial, preventive legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, ordesigned to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections. Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. See City of Rome, 446 U.S., at 177 (since “jurisdictions with a demonstrable history of intentional racial discrimination . . . create the risk of purposeful discrimination” Congress could “prohibit changes that have a discriminatory impact” in those jurisdictions). Remedial legislation … “should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against.” Civil Rights Cases, 109 U.S., at 13 .

    RFRA is not so confined. Sweeping coverage ensures its intrusion at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter. RFRA’s restrictions apply to every agency and official of the Federal, State, and local Governments. 42 U.S.C. 2000bb-2(1). RFRA applies to all federal and state law, statutory or otherwise, whether adopted before or after its enactment. 2000bb-3(a). RFRA has no termination date or termination mechanism. Any law is subject to challenge at any time by any individual who alleges a substantial burden on his or her free exercise of religion. [CITY OF BOERNE v. FLORES]

    Which makes me wonder how it would fare as a basis for litigating the rule. Especially given Scalia’s concurrence:

    Justice Scalia, with whom Justice Stevens joins, concurring in part.

    I write to respond briefly to the claim of Justice O’Connor’s dissent (hereinafter “the dissent”) that historical materials support a result contrary to the one reached in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). See post, p. ___ (dissenting opinion). We held in Smith that the Constitution’s Free Exercise Clause “does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” 494 U.S., at 879 (quoting United States v. Lee, 455 U.S. 252, 263 , n. 3 (1982) (Stevens, J., concurring in judgment)). The material that the dissent claims is at odds with Smith either has little to say about the issue or is in fact more consistent with Smith than with the dissent’s interpretation of the Free Exercise Clause. The dissent’s extravagant claim that the historical record shows Smith to have been wrong should be compared with the assessment of the most prominent scholarly critic of Smith, who, after an extensive review of the historical record, was willing to venture no more than that “constitutionally compelled exemptions [from generally applicable laws regulating conduct] were within the contemplation of the framers and ratifiers as a possible interpretation of the free exercise clause.” McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) (emphasis added); see also Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992) (arguing that historical evidence supports Smith’s interpretation of free exercise)

  46. James says:

    @rodney dill:

    The only argument for free are for those women that are so poor they will only be on gov’t assisted healthcare to begin with, and probably at that point all basic medications would (or should) be free.

    Actually, there’s another great one: that it saves us a ton of money in the long-run. Here’s the Guttmacher Institute finding that:

    By facilitating access to a more effective mix of contraceptive methods, publicly funded family planning centers enable their clients to have 78% fewer unintended pregnancies than are expected among similar women who do not use or do not have access to these services. (emphasis mine)

    If you’re reducing 78% of unintended pregnancies, and all the attendant healthcare, child rearing, education and related costs, you are saving quite a bit of money indeed.

    Moreover:

    Finally, free contraception does not cost insurers nearly as much as many assume because only 28% of women use the most expensive form of birth control — the Pill. Fully 37% of couples choose tubal sterilization or a vasectomy. A higher percentage take this route if their insurer covers 100% of the bill. The upfront cost is higher, but the insurer waives just a single co-pay.

    And lastly, if not most importantly, children are not pets. They’re not just the responsibility of the owner.

  47. rodney dill says:

    @James: Sounds like you’ve made a good case for the insurers to do this on their own then, without government mandate or support. I’m not against the insurers doing this on their own volition.

    And lastly, if not most importantly, children are not pets. They’re not just the responsibility of the owner.

    You really lost me there, I didn’t make a claim that children were pets, nor supported any stance that leads to that conclusion.

  48. PD Shaw says:

    @sam: “Which makes me wonder how it would fare as a basis for litigating the rule.”

    The Religous Freedom Restoration Act applied to federal, state and local government. The SCOTUS ruled in City of Floeres that Congress had exceeded its authority to regulate state and local government and thus was unconstitional in part. Its not unconstituional as applied to the federal government.

  49. sam says:

    I just wonder about that, PD. The Court addressed the issue at hand, which involved a state. No federal legislation or rule was at issue. And Scalia still thinks Smith was decided correctly, along with the others in the majority. The reasoning they based that decision on has not evaporated.

  50. James says:

    @rodney dill: If you can understand why it makes fiscal sense to provide free contraception, then you should be able to see why providing free contraception is socially beneficial; just like free education is socially beneficial or free national defense is socially beneficial.

    What I mean to say is that children, by definition, are a public issue. A mandate is completely appropriate when taxpayer dollars are at risk on the issue of unintended or unwanted pregnancies

  51. PD Shaw says:

    @sam: The SCOTUS has applied the Religious Freedom Restoration Act against the feds in Gonzales v. Centro Espirita Beneficente Uniao Do Vegetal (2006) and they address the point you raise here:

    Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated “the compelling interest test” as the means for the courts to “strike sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. §§ 2000bb(a)(2), (5).

    We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. See Smith, 494 U.S., at 885-890. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

    That’s an 8-0 unanimous decision. And yes, it appears the Court thinks the law is problematic for the same reasons it rejected the test in Smith, but its clearly holding it within Congress’ power to require of the federal government.

    It also involved another religious use of a narcotic, this type a Brazilian religious movement that uses a narcotic tea, and they are now exempt from federal drug laws.

  52. Brummagem Joe says:

    then you should be able to see why providing free contraception is socially beneficial;

    Isn’t one of the first things various American charities do when they show up in the third world is to start handing out free contraceptives? Leaving aside the phony nature of this controversy and the rampant criminality in the RC church this entire argument is tailor made for the Democrats. Obama must be thinking….make my day. However, ultimately I think the invitation will be declined.

  53. sam says:

    I found this paper, PD, which you might find interesting, The Impact of Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), by Amit Shah of the Rutgers University School of Law. He points out that it was not until the case that the constitutionality of the law was firmly established. BTW, I’ve not argued that the RFRA wasn’t constitutional, only that it’s applicability to the birth control rule was not clear cut. His paper reinforces that for me, especially his analysis of the in the person test, but I can see how someone could read that analysis and draw the exact opposite conclusion.

  54. Nightrider says:

    Do the health care systems in heavily Catholic countries in Europe cover birth control?

  55. rodney dill says:

    They drain taxpayer dollars in child services and education spending, not to mention all the attendant cost of possible incarceration for number of those those that slip through the cracks.

    I for one then will welcome the associated tax cuts as all these expenses that are the responsibility fo the taxpayers are avoided (/snarcasm)