The Obama Administration Is Out Of Patience For The Supreme Court’s Birth Control Tomfoolery

Solicitor General Donald B. Verrilli Jr. | AP PHOTO/HARAZ N. GHANBARI

THINK PROGRESS

Zubik v. Burwell should have been a very easy case.

Before the Supreme Court set off a doctrinal earthquake in its 2014 Hobby Lobby decision, the justices had struck a careful balance between the rights of religious objectors and the need to maintain the rule of law in a pluralistic society. Religious people enjoyed broad rights to act according to their own religious conscience, but they could not wield religious objections to limit the rights of others. Thus, when religious objectors claimed that their objections to contraception should trump federal rules guaranteeing that many women would have access to birth control, previous law protected the rights of those women.

Yet, even as Hobby Lobby cast a cloud of doubt over this longstanding balance, it seemed to contain a significant silver lining for women seeking contraception. Though Hobby Lobby permitted employers to ignore regulations requiring them to include birth control coverage in their employees’ health plans, it also relied heavily on the fact that there was another way to provide women with birth control while imposing less of a burden on religious objectors. Rather than requiring employers to include contraceptive care in their own health plans, employers with religious objections could fill out a two-page form exempting themselves from this requirement. In most cases, the employer’s insurance company would then provide its employees with a separate, contraception-only insurance plan.

Which brings us back to why Zubik should have been such an easy case. The regulations at issue inZubik concern the very same just-fill-out-the-form exemption that the Court relied on in Hobby Lobby. The overwhelming majority of federal appeals courts upheld the fill-out-the-form regulations, some of them in opinions quoting Hobby Lobby‘s seeming endorsement of the new rules. Justice Anthony Kennedy, a conservative and the crucial fifth vote in the Hobby Lobby case, wrote a concurring opinion that seemed to telegraph his intention to uphold the fill-out-the-form rules.

This was not supposed to be a hard case.

But, alas, the Roberts Court has ways of making easy cases difficult. Which explains why, on Tuesday, the Justice Department filed a brief that leaves little doubt that the administration is tired of being toyed with. Solicitor General Donald Verrilli’s brief is written in the polite, precise, and deferential language that any smart lawyer uses when advocating before the justices. But it’s message is clear: the Supreme Court needs to stop jerking the government — and thousands of American women — around.

The Court’s Proposal

The brief Verrilli filed Tuesday (and another brief filed by attorneys representing the religious objectors in Zubik) were both filed in response to an odd order the justices handed down late last month. At oral argument in Zubik, Kennedy appeared to reverse his previous signs of support for the fill-out-the-form opinion, suggesting that the Court was headed towards a 4-4 split along party lines. Without a ninth justice to resolve this impasse, a split decision could cause considerable legal chaos. A woman’s right to birth control coverage could potentially hinge upon where she lives.

The Court’s March order appears to be an attempt to ward off this confusion. It asked both sides of the Zubik case to consider a tweak to the fill-out-the-form rules where religious objectors “would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.” Under this modified version of the rules, objectors would no longer be required to fill out a form — or to submit any separate writing announcing their objection at all. Instead, their insurance company “would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan” (the word “petitioner” refers to the religious objector plaintiffs).

On Tuesday, both sides responded to this suggestion that the rules could be tweaked with a resounding “kind of.” The religious objectors, in a brief signed by a veritable army of lawyers, begin their brief by seeming to embrace the Court’s proposed solution. Yet it soon becomes clear that they will only accept it with conditions and qualifiers. The contraceptive coverage must be “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication” to satisfy the religious objectors.

More significantly, the objector’s brief also notes that many employers self-insure — meaning that they pay out health claims directly to their employees rather than outsourcing this function to an insurance company — and self-insured employers raise unique problems for the Court’s proposed solution. Though self-insured employers typically contract with an insurance company to “process claims and perform other administrative tasks,” that company (known as a “third party administrator” or “TPA”) “can act only in accordance with the directions that they are given by the self-insurer.”

Under the fill-out-the-form regulations, this third party administrator took on the duty to provide birth control coverage to the employees of religious objectors, but the objectors’ attorneys say that this could not be done under the Court’s proposed solution. “Because the government seeks to make the TPA a ‘plan administrator’ of the petitioner’s own plan for the limited purpose of ensuring the provision of contraceptive coverage, it needs some sort of written document from the petitioner that it can deem sufficient to empower the TPA to provide or arrange for the provision of contraceptive coverage to beneficiaries of the petitioner’s plan.”

The Justice Department, for its part, largely agrees with the objectors about the problem presented by self-insured plans, although it also argues that the government itself can substitute “a written designation sent by the government” for a form or letter submitted by the religious objector. This substitution will only work, however, if the government knows which company serves as each religious objector’s third party administrator, and the Court’s proposed solution does not require objectors to disclose this information.

Frustration

DOJ’s primary concern, however, stretches far beyond its concern about how to handle self-insured plans. Justice Department attorneys have now spent years litigating over the balance of power between women and religious objectors, including two trips to the Supreme Court. And the justices seem willing to move the goal posts without warning. Meanwhile, despite the fact that most federal appeals courts have upheld the rules at issue in Zubik, those rulings are not in effect because of injunctions, stays and other temporary relief handed down by various courts. As a result, tens of thousands of women “are not receiving contraceptive coverage because the accommodation regulations have been enjoined pending this Court’s resolution of the issue.”

It is time, in other words, for the justices to stop dinking around and tell the government what it needs to do to ensure that these women receive contraceptive care. After spending about a page of his brief laying out various ways that the Court could resolve this case, Verrilli pleads with the justices not to greenlight one solution today only to allow another group of employers to challenge it tomorrow. “In all cases,” the Solicitor General writes, “the Court should make clear that the government may, consistent with [federal religious liberty law], require petitioners’ insurers and TPAs to provide separate contraceptive coverage to petitioners’ employees and their beneficiaries under the other provisions of the accommodation regulations.”

Even if the Zubik plaintiffs are satisfied with whatever solution the justices work out in this case, Verrilli knows full well what will happen next. “If petitioners themselves were to disclaim any challenge to the alternative the Court’s order posits, many other nonprofit and for-profit employers have asserted parallel [religious liberty] claims.” A too-narrow decision from the justices — or one that gives them room to move the goal posts again — “would thus inevitably lead to uncertainty and continued litigation in the lower courts.”

The lesson of Hobby Lobby and Zubik is that there will always be some new plaintiff with an idiosyncratic objection to government regulation. Before Hobby Lobby, these plaintiffs would normally win — but not if their religious objection would diminish the rights of others. It’s now clear that, by giving religious objectors an opportunity to limit the rights of others, the Court has opened the door to a seemingly endless stream of new lawsuits that the government feels obligated to fight because, if they don’t, thousands of innocent bystanders could lose their rights in the process.

The Obama administration wants this to end. And they’re now practically begging the Supreme Court to make it stop.

BY IAN MILLHISER

New Study Helps Explain Why Hobby Lobby Supporters Are So Fiercely Opposed To Birth Control

A protester outside of the Supreme Court
A protester outside of the Supreme Court | Credit – Think Progress

The thinking here seems to reek of the old Reagan era christian fundamentalists’ attitudes…

Think Progress

Throughout the ongoing debate over Obamacare’s contraceptive coverage requirement, a common theme has emerged among many of Hobby Lobby’s supporters: the idea that ensuring access to affordable birth control is harmful to society because it leads to promiscuity and infidelity. Several right-wing groups filed amicus briefs in favor of the crafts chain arguing that women simply shouldn’t be having consequence-free sex. But where exactly does this idea come from? One research paper offers a theory.

According to new research published in Archives of Sexual Behavior, the attitude that women shouldn’t be having sex can at least partly be traced back to the idea that women are supposed to be economically dependent on men. The researchers suggest that this link may drive conservative religious communities’ insistence on sexual purity.

After surveying Americans about their attitudes toward promiscuity — asking them whether they agreed with statements like “It is fine for a woman to have sex with a man she has just met, if they both want to” — the researchers also asked them whether they believed women tend to rely on income from their male partner. They found that the people who believe that casual sex is wrong also tend to believe that women need a partner to support them financially. Within that worldview, sex outside of a serious monogamous relationship is simply too risky. If women don’t have “paternity certainty,” then how will they know who they need to rely on to support them and their future child?

The researchers conclude that this outdated attitude toward women’s pregnancy risks and financial needs hasn’t totally gone away, despite the fact that modern contraception, legalabortion rights, and greater workplace equality have created an entirely different society.

“The beliefs may persist due to cultural evolutionary adaptive lag, that is, because the environment has changed faster than the moral system,” the paper concludes. “Religious and conservative moral systems may be anti-promiscuity because they themselves arose in environments where females depended heavily on male investment.”

In response to the right-wing claims that women who support Obamacare’s contraceptive mandate are “sluts” who want the government to fund their sex lives, many birth control proponents have focused on the medical reasons that women need access to contraception. But there’s also a growing push to confront the deep-seated resistance to acknowledging women’s sex lives. “Women like sex. Stop making ‘health’ excuses for why we use birth control,” feminist writer Jessica Valenti argues in a Guardian column published this week.

On top of the changing societal norms that ensure women don’t actually have to be guided by “paternity certainy” anymore, there’s also scientific evidence that increasing access to birth control doesn’t have any relationship to promiscuity. A large study published in the Obstetrics & Gynecology journal earlier this year found that giving women access to no-cost contraception doesn’t lead them to make riskier sexual choices. The researchers noted their results should dispel social conservatives’ fears that the risk of pregnancy is “the only thing standing between women and promiscuity.”

Paul Ryan Wants To Use Debt Ceiling To Deny Women Access To Birth Control

paul ryan thumbnail

Someone tell me if I’m wrong in saying that the GOP tactics regarding the debt ceiling and a passing a clean continuing resolution are tantamount to terrorism…

Think Progress

Since negotiations to avert a national default on the debt have shifted from the House to the Senate, Republicans in the lower chamber are still hoping to use the talks as “leverage” to limit women’s access to contraception.

According to the Washington Post, in a private meeting with House Republicans Rep. Paul Ryan (R-WI) — who earlier this weak floated a compromise that would raise the debt ceiling in exchange for cuts to entitlement programs — railed against emerging Senate proposals and argued that the “House could not accept either a debt-limit bill or a government-funding measure that would delay the next fight until the new year”:

According to two Republicans familiar with the exchange, Ryan argued that the House would need those deadlines as “leverage” for delaying the health-care law’s individual mandate and adding a “conscience clause” — allowing employers and insurers to opt out of birth-control coverage if they find it objectionable on moral or religious grounds — and mentioned tax and entitlement goals Ryan had focused on in a recent op-ed in the Wall Street Journal.

Ryan’s speech appeared only to further rile up the conservative wing of the GOP conference, which has been agitating the shutdown strategy to try to tear apart the health-care law.

The Affordable Care Act stipulates that employers and insurers must provide no-cost contraception coverage as part of their health care plans and exempts churches and religious nonprofits that primarily employ people of the same faith from the requirement. In a compromise between Catholic groups and the White House, religiously affiliated colleges, universities, and hospitals that wish to avoid providing birth control can also opt out of offering the benefits, while their employees receive contraception coverage at no additional cost sharing directly from the insurer.

Republicans, however, are not satisfied with the accommodation and have tried to expand the so-called conscience clause, permitting any employer or insurance plan to exclude health services, no matter how essential, from coverage if they morally object to it.

In the last week of budget negotiations, some in the GOP have walked back their demand to fully defund the Affordable Care Act and have instead offered relatively small changes to the Affordable Care Act. But Senate Majority Leader Harry Reid (D-NV), who is now leading the negotiations with Sen. Mitch McConnell (R-KY) and the White House, insists that changes to the health care law are off the table. Reid is asking for new revenues and spending levels above the sequester-imposed caps.

(HT: The Plum Line)

 

Ann Romney Refuses To Answer Questions About Birth Control

I’m not certain I can stand much more of the Romneys obfuscation on the real issues in addition to the economy.

What thirty some odd states with Republican Governors have done to dictate to women about their reproductive rights is incredible.   The only thing I can attribute to Mrs. Romney’s hesitance to answer the question is that Mitt Romney knows it’s a liability to his campaign.

In 2010 the Republicans campaigned on “Jobs, Jobs, Jobs!”  However, in reality, it’s been about “the fetus” and person-hood.  The problem of course is that the Right has this way of loving and protecting “the fetus” but starving and ignoring “the child”.

By the way Republican politicians…where are the jobs?

Think Progress

In an interview with KWQC-TV6 today, Ann Romney refused to comment on the issues stemming from the ongoing War on Women, declining to address whether she believes women should have access to contraception through their employer-based insurance plans. Such questions are irrelevant, Romney said, because this election is not going to be about birth control:

KWQC TV6: Do you believe that employer-provided health insurance should be required to cover birth control?

ANN ROMNEY: Again, you’re asking me questions that are not about what this election is going to be about. This election is going to be about the economy and jobs.

KWQC TV6: Well, a Pew research poll shows those issues are very important to women, ranking them either “important” or “very important. […]

ANN ROMNEY: Listen, I’ve been across this country, I’ve been for a year-and-a-half on the campaign trail. I’ve spoken with thousands of women and they are telling me, they’re telling me a couple of things, one they say they’re praying for me which is really wonderful, and then they’re saying, ‘please help, please help. We are so worried about our jobs.’ So really if you want to try to pull me off of the other messages it’s not going to work because I know because I’ve been out there. […]

I’m going to talk to you about the economy and about job creation and about how my husband is the right person for the right time. This is going to be an election that is very important for women, and we are going to make sure that their economic prosperity is more certain under a President Romney.

Despite Romney’s attempt to pivot to the economy, her claim that birth control is “off message” ignores the real economic situation of women across America. In fact, women’s access to reproductive health services is inextricably linked to the economic issues that countless women face. For example, the Obamacare provision that requires employer-based coverage for contraception — which Ann Romney sidestepped after the interviewer brought it up twice — attempts to address the fact that one in three American women report having struggled to afford birth control at some point in their lives. And when women risk pregnancy without reliable access to contraception, they strain their own finances with the expensive addition of a dependent, as well as incur millions in taxpayer costs for medical care.

Arizona Gov. Jan Brewer Signs Legislation Permitting Employers to Interrogate Female Employees About Contraception Use

Jan Brewer (Christopher Halloran / Shutterstock.com)

The Raw Story By ABL

A month or so ago, I wrote about a bill in Arizona (HB 2625) that would permit employers to opt-out of the so-called birth control mandate and interrogate their female employees about their sexual practices, all in the name of “religious freedom”:

You see, if a female employee seeks a medical prescription for contraception, an employer will be permitted to ask that employee for proof that she doesn’t plan to use the contraception for slutty fuck-making.  Using it for medical reasons is ok —  that’smedicine.

So, if you’re one of those women who uses slutpills for non-slutty reasons, then you’re ok.  You’ll get to keep your job.  Enjoy your ovarian cancer or your acne or whatever, but make sure you put that red cover on your TPS reports or the boss’ll have your head.

But if you’re running around like some sort of whore-nympho, then you better keep that shit on the down-low, because if The Man finds out you might-could get fired:

The Senate Judiciary Committee voted 6-2 Monday to endorse a controversial bill that would allow Arizona employers the right to deny health insurance coverage for contraceptivesbased on religious objections.

Arizona House Bill 2625, authored by Majority Whip Debbie Lesko, R-Glendale, would permit employers to ask their employees for proof of medical prescription if they seek contraceptives for non-reproductive purposes, such as hormone control or acne treatment.

“I believe we live in America. We don’t live in the  Soviet Union,” Lesko said. “So, government should not be telling the organizations or mom and pop employers to do something against their moral beliefs.”

Lesko said this bill responds to a contraceptive mandate in the federal Patient Protection and Affordable Care Act signed into law March 2010.

“My whole legislation is about our First Amendment rights and freedom of religion,” Lesko said. “All my bill does is that an employer can opt out of the mandate if they have any religious objections.”

Glendale resident Liza Love said the bill would impose on women’s rights to keep their medical records private.

Love spoke to the committee about her struggle with polycystic ovary syndrome and endometriosis, conditions requiring her to use birth control.

“I wouldn’t mind showing my employer my medical records,” Love said. “But there are 10 women behind me that would be ashamed to do so.”
(read the rest)

Continue reading Raw Story article here…

Jon Stewart Criticizes Fox News For Limbaugh Double Standard (VIDEO)

The Huffington Post

As the controversy over Rush Limbaugh’s inflammatory comments about Sandra Flukecontinues, Fox News is finding itself in somewhat of a dilemma, as Jon Stewart pointed out on Tuesday night’s “Daily Show.”

The conservative news network had the choice of either defending or condemning Limbaugh, who many in the GOP vocally support, but instead raised Bill Maher’s controversial Sarah Palin joke from last year as evidence that liberals are also guilty of irresponsible diatribes.

Stewart was perplexed by Fox’s diversionary tactics on the subject:

“So I guess by bringing up Bill Maher, Fox is saying, ‘So we’re even, right? Off-setting penalties. Let’s just say we all get back to what really matters to Americans: whether Obama is a Sunni or a Shi’ite.'”

Fox pundits went on to accuse comedians of having a liberal double standard, or as Michelle Malkin put it, “the humor card,” allowing them to say anything they want under the umbrella of comedy and entertainment. However, this argument lacks solid footing given the GOP’s defense of Limbaugh as merely “being absurd” and even Limbaugh’s own excuse for the Fluke comments as an “attempt to be humorous.”

As a comedian himself, Stewart obviously had strong feelings about this so-called hypocrisy:

“See here’s the other thing I’m sick and tired of about this comedian thing: nobody’s hiding behind comedy, and there are repercussions for what comedians say. When you’re doing it in a club, there are repercussions. Ask Michael Richards. Ask Tracy Morgan. If you do comedy on television, there are repercussions. Ask me.”

Watch the full clip below to see Stewart criticize Fox and the GOP in general for their defense of Limbaugh.

Vodpod videos no longer available.

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Pam Geller – Queen Of Wingnuts

There are no words to describe Pamela Geller, except to say that she, Limbaugh, Ann Coulter and a few other wing nuts say the most outrageous things, because they want to draw attention to themselves and ultimately, sell lots of books….

Mario Piperni

Crazy lady, Pamela Geller, defends Limbaugh.

A 30-year-old poses as a 23-year-old, chooses a Catholic University to attend at $65,000 per year, and cannot afford ALL the birth control pills she needs… so she wants the US taxpayers to pay for her rampant sexual activity. By all accounts she is banging it five times a day. She sounds more like a prostitute to me. She must have an gyno bill to choke a horse (pun intended). Calling this whore a slut was a softball.

Obama calls her and tells Sandra Slut Fluke that her parents should be so proud of her.
He’s a pimp.

Sick. Ms. Fluke is “banging it five times a day”? I wonder how Geller was privy to that information. I also wonder if Geller has any understanding of how birth control pills work.

The sad truth is that Geller is just another sad component of a right-wing noise machine far removed from reality and completely devoid of intellect, honesty and decency. When not referring to coeds as whores and presidents as pimps, Geller fills up her time spreading hate and fear about Muslims to a small legion of devoted psychopaths. Really. Read the comment section of her post. To call these people twisted is to not do justice to their demented minds.

As I’ve noted in the past, there is no chance of rational debate with these people. They truly live in a bubble where they’re free to ignore the truth and create their own set of ‘facts’ to support whatever story they’ve chosen to believe that day.

Welcome to Wingnuttia, the land of the truly ignorant.

Most of Obama’s “Controversial” Birth Control Rule Was Law During Bush Years

Tell me again what’s wrong with this administration requiring most employers to cover birth control which the Bush administration also required without the hysterics from those on the Right?

In fact some twenty-six states have also implemented the law.

So what is the big deal here?

Kick! Making Politics Fun says:

BTW, did you know that in the Sherman State of Georgia they have a state mandate for this very same thing law, as do 25 other states?

Politifact:

A study by the Guttmacher Institute in 2002 found that 86 percent of employer-purchased insurance plans covered a full range of contraceptive methods, up dramatically over the previous decade. One reason is that 27 states have passed laws requiring fully-insured employer health insurance plans that cover prescription drugs to provide “equitable” coverage for contraceptives. In short, if an employer is going to offer prescription drugs, contraceptives have to be among the options.

Mother Jones

The right has freaked out over an Obama administration rule requiring employers to offer birth control to their employees. Most companies already had to do that.

President Barack Obama’s decision to require most employers to cover birth control and insurers to offer it at no cost has created a firestorm of controversy. But the central mandate—that most employers have to cover preventative care for women—has been law for over a decade. This point has been completely lost in the current controversy, as Republican presidential candidates and social conservatives claim that Obama has launched a war on religious liberty and the Catholic Church.

Despite the longstanding precedent, “no one screamed” until now, said Sara Rosenbaum, a health law expert at George Washington University.

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.

“It was, we thought at the time, a fairly straightforward application of Title VII principles,” a top former EEOC official who was involved in the decision told Mother Jones. “All of these plans covered Viagra immediately, without thinking, and they were still declining to cover prescription contraceptives. It’s a little bit jaw-dropping to see what is going on now…There was some press at the time but we issued guidances that were far, far more controversial.”

Continue reading…

Romney: I Support Birth Control Because It ‘Prevents Conception’

Undoubtedly this is going to be an albatross around Mitt Romney’s neck.

The Evangelical faction of the GOP will not look kindly upon his statement.  There are efforts underway now by the Evangelicals to ban birth control completely.  Rick Santorum is the person out front in this effort.

Mitt Romney will do one of two things: double down on this recent statement or flip it around and say he “misspoke”.

Think Progress

At a campaign event in Iowa today, GOP presidential contender Mitt Romney was confronted by a woman in the audience about his support for so-called “personhood” laws that would define life as beginning at conception, effectivelyoutlawing common forms of birth control. “98% of American women, including me, use birth control,” she said, “so could you help me understand why you oppose the use of birth control?”

Romney answered simply, “I don’t” — a surprising departure from the rest of the field’s radicalized anti-contraception views. Romney explained that his support of birth control is not inconsistent with his anti-abortion stance because, “I believe life begins at conception and birth control prevents conception.”

Watch it:

As the woman pointed out, however, Romney studiously avoided commenting on the stickier side of this issue — whether he supports hormonal contraception (like birth control pills) that can also prevent eggs from being implanted, which many conservatives think is tantamount to abortion.

Romney was also less-than-straight about his pro-states’ rights approach to abortion. Although he claimed, “I would like to see the Supreme Court return this right to the states,” he has recently pledged to push for federal abortion restrictions.

Romney has a mixed record when it comes to supporting women’s access to safe, effective contraception. In an effort to pander to social conservatives powerful in the Republican base, Romney said he would expand a Bush-era rule that allows doctors to deny women access to contraceptives.

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