I find it remarkable that one of the liveliest debates being engaged during this presidential election year is about, of all things, contraception.
I understand that sexually related matters tend to raise the most heated passions (pun sort of intended), with abortion and gay rights amongst the most hot-button of those issues, but I kinda thought the contraception debate had been settled. And, really, it has been.
Nobody (except maybe Republican presidential candidate Rick Santorum if you really push him) is going to dispute an individualâ€™s right to obtain or use artificial means of birth control in the 21st century. Some pharmacies and even convenience stores today have entire shelves, or even whole aisles offering just the non-prescription types of safe-sex devices.
The current fight is really about that age-old question: who pays?
President Obama made contraceptive coverage by health insurers a mandate in the health care law we now call Obamacare. That would mean that religious institutions whose doctrines oppose birth control â€” it is the Catholic Church that has been front and center on this, because it operates hospitals and colleges and other worthwhile and beneficial charitable efforts â€” would, if those institutions provide health insurance for their employees (good for them if they do) be subsidizing birth control (and, depending on the plan, perhaps sterilizations or abortions as well) against their will and contrary to their religious teaching.
That canâ€™t be dismissed, or discounted, as some in the debate would like to do, by saying that if religious organizations and corporations are going to employ people, they have to be treated like all other employers. That is true in some cases but not all.
The part of the U.S. Constitution that deals with church and state issues is the section of the First Amendment that has come to be called â€śthe establishment clauseâ€ť because its specific language and original intent was to prevent the establishment of an official state religion. That is the first part of the First Amendment, so important that, when the framers sat down to compose and detail the rights individuals would maintain in the document that constitutes our government cited it right off the bat. The government does not get involved in peopleâ€™s religious lives.
But there is a second part of that clause before you get to the semi-colon: â€śor prohibit the free exercise thereof.â€ť
As one who makes his living by virtue of the First Amendment, I am pretty much an absolutist when it comes to the Bill of Rights. â€śCongress shall make no lawâ€ť means, to me no law. But nothing can ever be really absolute. If you take â€śCongress shall make no lawâ€¦prohibiting the free exerciseâ€ť of religion to the furthest extremity, what do you do about a religion that practices human sacrifice? So at some point the argument could be made that some line must be drawn somewhere, but I am not going to be so foolish as to propose one here.
Somebody is going to have to draw the line, however, when it comes to the mandate for contraception as part of health insurance coverage.
Ultimately, that call will have to be made by someone wearing a black robe who has a six-figure salary and a fat pension.
In these situations, courts usually apply what is called a balancing test: Is the governmental purpose (including contraceptives as part of preventive health care for women) so compelling that it trumps the faith-based employersâ€™ First Amendment rights to not be compelled to violate their religious teaching?
As mentioned above, birth control is readily and cheaply available just about everywhere, so itâ€™s not like its exclusion from health insurance coverage would be an insurmountable burden. For insurance to refuse to cover heart by-pass surgery would be one thing, it would put life-saving care beyond the economic reach of many, if not most, people. Birth control pills and IUDs donâ€™t seem to reach that same level of urgency.
On the other hand, there is another line that has to be drawn. A Catholic-run hospital or a Catholic college might be one thing, but how about the everyday widget factory employer who says providing such coverage would violate his or her individual religious convictions? Does that fall under the First Amendment protections of exercising his or her religion? Is that true religious conviction, or a desire to knock some cost off the health insurance plan, and who gets to make that decision? That is a whole other can of worms that is likely to be opened in Congress or in some state legislatures that are weighing in on the issue, if for no other reason than to extend this contentious debate through Election Day: How many of societyâ€™s laws should people be allowed to exempt themselves from by professing religious beliefs?
Imitating the ancient Popes, Obama tried to put a fig leaf over the problem. Unfortunately, it is a pretty transparent one.
His idea of a compromise was saying the religious institutions wouldnâ€™t have to pay for the contraception coverage, but that the employee could go to the employerâ€™s insurance provider and get the coverage free. Surely there is no possibility that the insurance company would take that into consideration when they set the employerâ€™s premiums the next time around.
Obama is giving the religious employers the fig leaf to cover their backsides, which is what you do in a political situation. But the bishops and others who oppose this idea are not looking for a lame excuse that will allow them to go along with what the president wants; they want to exercise what they see as their religious prerogative, indeed their religious duty, to object and resist what Obama is trying to do.
It will be interesting to see where the politics shakes out on this.
Conservatives seem to think they have the upper hand here because millions of voting Catholics are going to resent Obamaâ€™s governmental intrusion on the right of the churches to practice religion as they see fit.
Liberals think they have a winning issue because so many Americans, Catholics included, practice birth control faithfully. They think those people will resent the conservative (and for the most part, Republican) effort to allow employers to impose their religious convictions on their employees.
Which side is right? Weâ€™ll know in November.