Here is how The Kansas City Star began its story today on the Catholic Church hierarchy’s hysteria over a new rule that would only slightly move the church in the direction of the 21st century:
Lawmakers and politicians scrambled Monday to respond to a growing furor over the Obama administration’s decision to require no-cost contraceptive insurance coverage — even in policies offered by religious employers.
Over the weekend hundreds of thousands of Catholics, including many in the Kansas City area, heard church leaders denounce the plan revealed in late January by Health and Human Services Secretary Kathleen Sebelius, the former Kansas governor.
Catholic leaders complained that the rule would force them to subsidize medical procedures to which they morally object.
Let’s get this straight from the start: the “medical procedures” to which the Catholic Church objects are actually contraceptive services and not abortions.
And if you will excuse me, it is a little off-putting for an institution that has tolerated pedophilia in the priesthood for years and years to suddenly seize the moral high ground on this or any issue.
Let us also get straight another important point, as the Star does:
The rule would exempt religious organizations if they are mainly involved in spreading religious beliefs and largely employ people of that faith. The regulation would likely exclude employees of a Catholic parish or diocese.
In other words, nothing changes as far as the religious mission of the Catholic Church goes. All the new rule does is prohibit the church from imposing its moral teaching about contraceptives on non-Catholics who happen to work in 
Catholic universities or hospitals or in other social-service entities operated by the church in the secular workplace.
It is also necessary to point out, as Kathleen Sebelius did in USA Today, that the new rule is not exactly ground-breaking, as 28 states already require contraception coverage and eight of them don’t even have a religious exemption.
Sebelius continued:
It’s important to note that our rule has no effect on the longstanding conscience clause protections for providers, which allow a Catholic doctor, for example, to refuse to write a prescription for contraception. Nor does it affect an individual woman’s freedom to decide not to use birth control. And the president and this administration continue to support existing conscience protections.
But that’s not enough for the bishops, who are saying all over the country:
We cannot — we will not — comply with this unjust law.
Archbishop (who will soon be a Cardinal) Timothy Dolan of New York said,
To force American citizens to choose between violating their consciences and forgoing their healthcare is literally unconscionable. It is as much an attack on access to health care as on religious freedom.
It is hard to see how one single American conscience would be violated under this rule, and the only “attack on access to health care” would be by those dioceses whose bishops decide they and their Iron Age consciences are above the law.
As for the “religious freedom” nonsense, who among us has the absolute freedom to shape the secular world according to our religious beliefs? What if the Catholic Church had a doctrinal problem with women becoming doctors? Would it be okay for Catholic hospitals to hire only men to care for the sick? That would be no more ridiculous than this present controversy.
We are not talking about going into Catholic churches and demanding they renounce their anachronistic and absurd beliefs about contraception. Any Catholic who desires to cling to superstition and irrationality can still do so, but quite ironically most Catholics, when they exit the church door, have no problem with their contraception consciences, as Reuters reported last year:
A new report from the Guttmacher Institute, the nonprofit sexual health research organization, shows that only 2 percent of Catholic women, even those who regularly attend church, rely on natural family planning.
The latest data shows practices of Catholic women are in line with women of other religious affiliations and adult American women in general.
So, while the church hierarchy still has its feet planted in the Dark Ages on this issue, the women of the church have brought their reproductive organs into the Information Age.
The politics of all this obviously works against Mr. Obama—which actually demonstrates that he has principles beyond politics—as the issue is easily exploitable by Republicans on phony religious freedom grounds. (Some Democrats are piling on too, which may lead to a further compromise on down the road.)
Mittens said yesterday:
We must have a president who is willing to protect America’s first right, a right to worship God, according to the dictates of our own conscience. We’ll either have a government that protects religious diversity and freedom, or we’ll have a government that tells us what kind of conscience they think we ought to have.
Anyone who thinks that “to worship God” involves denying contraception services to women in the workplace is, well, suitable to become the Republican nominee for president.
The Erstwhile Conservative: A Blog of Repentance 
Jim Wheeler
/ February 7, 2012I’m glad you clarified this one for us, Duane. I hadn’t really appreciated the real issue here, viz., that the Catholic Church and others actually want government to fall in line and buttress what it is not able to do itself. Ironic indeed.
BTW, this reminds me of when I heard that the Catholic Church had actually approved of aspirin as a contraceptive. The way it works is, she takes one – – and holds it between her knees.
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R. Duane Graham
/ February 7, 2012Aspirin, the wonder drug! How hilarious, but not that far fetched,unfortunately.
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Herb Van Fleet
/ February 7, 2012EC,
Well, the first problem is that government should not be in our bedrooms in the first place. I think Griswold v. Connecticut (1964) settled the matter when SOTUS overturned a law in Connecticut that banned condoms, saying it was a privacy matter under the IXth amendment. Then there is that pesky church and state thing. So for starters, Obama and the Congress need to keep their noses out of it.
As to the Catholics, well, in my opinion they are little more than a criminal enterprise. In “Light of the World: The Pope, the Church and the Signs of the Times,” published in the fall of 2010, Pope Benedict XVI muddied the waters by saying that condoms were OK for male prostitutes to help stop AIDS, but then all we hear is crickets when it comes to heterosexuals. In the past the pontiff has blamed condoms for making the AIDS crisis worse. Decisions, decisions. Not that it matters. Catholics just continue their little hypocrisy of staying in the flock and then ignoring shepherd.
Moreover, the official Catholic anti-condom position, especially in actively denying them to the poor in third world countries, thereby helping the spread of STD’s, is merely one more instance of the Holy See’s crimes against humanity. On that point consider this from http://www.siawi.org/article3039.html:
“In September 2011, the Survivors Network of those Abused by Priests (SNAP) and the US based Center for Constitutional Rights (CCR) filed a landmark case with the International Criminal Court (ICC) to investigate and prosecute Pope Benedict XVI, the Vatican Secretary of State, and two Cardinals for rape, other forms of sexual violence, and torture as crimes against humanity.
“The case presents 22,000 pages of supporting testimony, case studies, declarations, letters, statements and photographs. It also includes the findings of multiple commissions and reports, such as the Cloyne Commission, the Winter Commission, the Ferns Report, the Ryan Commission, the Hughes Inquiry, the Westchester Report, the Report of the Philadelphia Grand Jury, the Suffolk County and the Boston Report to name a few.
“Based on some estimates it is thought that there were around 100,000 cases of sexual abuse by clergy just between 1981 and 2005; if cases from Africa, Latin America and elsewhere are added, the worldwide total is likely to be many times higher.”
This is a demonstrably dangerous organization and should be treated as such.
Herb
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R. Duane Graham
/ February 8, 2012Herb,
We agree on Griswold for sure. And I assume you agree on the development of a right to privacy, extrapolated from a number of Amendments.
So, we have that “pesky church and state thing.” Here is where we will disagree. Just like the elimination of Jim Crow laws (as a libertarian, perhaps you didn’t approve of federal intervention there either), I believe there is a federal (national) interest in seeing to it that we live in a civilized society, if we are going to call ourselves a civilized nation. And that includes not only laws against blatant discrimination on racial grounds, but on religious grounds also.
The Catholic Church is generally free to rule over its domain behind the church doors (except, of course, in the horrid way you described), but when it plays in the secular world it should be made to abide by secular rules. All the Administration is doing is holding Catholic-related entities to the same standards of behavior as other employers. I want the government to stick its nose in such matters. Twenty-eight states have done so.
Let’s say the Catholic Church believed as one of its doctrines that whites were superior to blacks and the good churchmen refused to hire blacks to work in their hospitals. Should the federal government stick its nose in that business? Of course it should, and most people would agree with that, even though a lot of libertarians might not. It is that widespread agreement that makes us a civilized nation.
As for the other stuff about the “crimes against humanity” committed by the church, Christopher Hitchens wrote a lot about that, which is where I first confronted it in such a hard-hitting way. One can make an argument, though, that on balance the church (not just Catholics) has done at least as much good as harm, but you won’t catch me making that argument.
There are too many variables to consider, including the damage to human psychology, inflicted mostly in childhood. I wouldn’t know how to quantify such things and put them on a cosmic scale, but my point remains that the Catholic Church has enough of a bad moral track record (which you documented rather well) as not to enjoy much consideration when it comes to making moral judgments.
And on that I’m pretty sure we agree.
Duane
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Herb Van Fleet
/ February 8, 2012EC,
You say, “I believe there is a federal (national) interest in seeing to it that we live in a civilized society, if we are going to call ourselves a civilized nation. And that includes not only laws against blatant discrimination on racial grounds, but on religious grounds also.”
Under that logic it would follow that we were “uncivilized” from 1789 thu 1865, when the XIIIth Amendment outlawed slavery. We may have been, now I’m not saying we were, uncivilized during the Indian Wars that went all the way up to 1923 with the Posey War in Utah between the Ute and Paiute against the Mormon settlers. Some say we are uncivilized because we are the only industrialized nation in the world that executes people for capital crimes. I could go on but you get my point.
As to the government’s right to park itself in the pews of the Catholic church and tell it what employee policies it must follow, then yes, the libertarian in me balks at such an idea. I don’t like to see government intervention into any person’s or institution’s freedom unless there is overwhelming proof that said intervention is necessary for the greater public good. And the determination of what constitutes a greater public good lies in the hands of SCOTUS. You know, those folks who made George W. Bush president and gave corporations the rights of citizenship.
I’ve said enough about the Catholic Church. They have long since forfeited their claim to any moral high ground.
Herb
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helenofmarlowe
/ February 7, 2012Agree with Jim. And your quote,
“…To force American citizens to choose between violating their consciences and forgoing their healthcare is literally
unconscionable”
made me dizzy. If I worked for a Catholic institution, I’d feel rather
that this forced me to make a choice between the archbishop’s conscience and my own health. Tough choice? Nah.
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Geoff Caldwell
/ February 7, 2012Oh the hypocrisy of the left and it’s “choice” mantra when that “choice” means choosing between the Constitution and freedom of religion and moral conscious and furthering the liberal agenda.
Then again there’s the ultimate irony of hiding behind “women’s health” when there are many published side effects and known issues with the birth control pill and the “morning after” pill that are detrimental to women’s health.
Birth control pills have about as much to do with women’s “health” as does viagra for men’s “health”. Both are drugs are popular “choices” taken by millions of men and women, but neither is required for the “health” of either.
This, as is the entire ACA, is nothing more than the left minority’s attempt to consolidate healthcare policy and power in Washington.
At least that “Middle Ages” Catholic “hierarchy” the left so disdains has the Constitution protecting it from Thomas More’s fate. (Well, for now anyway.)
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helenofmarlowe
/ February 7, 2012It infuriates me that a woman’s body is considered by (mostly) Republicans to be a matter of political control and public policy, but because you’re a man, what you do with your body is your own private business unless you hurt another living human. And personally, I think that should apply to hurting another living animal, but until the rest of the country can be persuaded to live by my conscience, I’ll just have to accept that my own conscience is the only one I control. Republicans should do the same.
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Geoff Caldwell
/ February 7, 2012I respect your passion, but again: What does contraception have to do with “health”? Are there or are there not numerous side effects and real “health” issues for many women who take the drug? Were women not “healthy” prior to the mid 60’s when the pill came onto the market?
People rail against high healthcare costs and yet just keep demanding that more and more drugs and services be covered.
is the pill and other contraceptives not already available at Planned Parenthood and many other outlets without having to force not just the Catholic Church but other faiths as well to violate a basic tenant of their religious beliefs?
Rather is not the “political” control coming from the left as it is the one exerting the “political” and “policy” mandate?
If the Church was denying true “health” as in for example preventive screenings, disease treatment etc that would be one thing but there is no “health” issue regarding contraception. That is a purely personal “choice”.
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Anders
/ February 7, 2012Contraception is preventative care. It saves women from being shot or bombed while visiting abortion clinics.
And preventative care is covered under most policies
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R. Duane Graham
/ February 8, 2012Anders,
Touché!
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Edwino Rasmijn
/ February 8, 2012Quote “People rail against high healthcare costs and yet just keep demanding that more and more drugs and services be covered.” Unquote Healthcare costs have been driven by greedy healthcare and healthcare insurance companies on Wall Street, with main goals to drive up their stock prices by all means possible, including fraud, e.g. Tenet Healthcare Corp. (NYSE symbol THC), UnitedHealth Group Inc. (NYSE symbol UNH), the most infamous HealthSouth Corp. (NYSE HLS), whose also infamous, jailed ex-CEO Richard M. Scrushy was held responsible for HealthSouth’s fraud, and ordered to pay $2.87 billion, Columbia/HCA (In 1997 – now governor Richard L. Scott of Florida – resigned as chief executive amid a financial scandal, including Medicare billing payments). As an investor, and trader in securities, I have a bigger list of fraudulent companies in the healthcare and healthcare insurance industry, which I avoid as the plague.
Alleging that patients demand more and more drugs and services, and be covered, is like blaming the buyers of subprime mortgages for the financial disaster of 2006 – 2008.
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R. Duane Graham
/ February 8, 2012Edwino,
You wrote in response to Geoff Caldwell,
Guess what? I’m pretty sure Geoff is guilty on both counts.
Duane
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R. Duane Graham
/ February 8, 2012Helen,
Here is a screenshot from a Guardian article from April of last year, which demonstrates, contrary to some right-wingers’ opinions, that contraception has a heck of a lot to do with women’s health:
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Anders
/ February 7, 2012“Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof “.
That can be read in several ways. For example, it could be understood as prohibiting laws specifically targeting a religion, while not excluding them from any general laws that apply to all.
Or it could be read as allowing churches to do absolutely anything they want – say hello to legal human sacrifices.
I don’t see how it can be limited to not having to pay taxes or perform abortions. That is stretching the English language beyond its extremes – then again, that never stopped a religion from…well, from anything, really
The ultimate irony is that the right hide behind the crucifix, while promoting policy that would have made Jesus spin on the cross. For did the Lord not say, that it is easier for a rich man to enter into the kingdom of heaven, than for a poor man to catch a break…or something
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Jim Wheeler
/ February 7, 2012It is absurd to say that birth control has nothing to do with women’s health. Someone like yourself who has worked in the healthcare field should know that better than most. Bearing children takes a substantial physical toll on a woman’s body. It stretches the abdominal walls and the skin and preempts nutrients. For example, before the days of scientific medical care it was accepted that a woman should loose at least one tooth for each child (calcium deficiency). Having a child in the middle ages might well have been an act of God or of chance, but if so, some form of kismet killed a lot of moms young.
Then too, there is the financial factor. Many feel, as they should, that it is better to raise and care for a few children well than to have many and care for them impecuniously. Here in the twenty-first century I would hope that any female human being could be guaranteed the right to birth options for any of those reasons and more.
Finally, as Duane and Helen have well expressed, simply making birth control available is completely different from mandating it, and implying otherwise is simply demagoguery.
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Geoff Caldwell
/ February 7, 2012It IS mandating it when it’s being required at no cost. Plus there are other avenues where it can be obtained.
Last time I looked it still was a “choice” to have unprotected sex (which leads to the “health” issue you cite) which the pill is for.
The point is a woman can spend her entire life in perfect “health” without ever taking one birth control pill. A man can spend his entire life in perfect “health” without ever taking a viagra pill.
And then there’s also that little thing called the Constitution and the precedent this little “health” infringement sets.
This is purely political posturing from the left and a power grab for more control out of Washington.
If it were truly a “health” crisis then what the heck has been happening for the past forty years? Ooops, guess it’s not quite the “health” issue it’s being made out to be is it?
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kepdavis
/ March 8, 2012This is a delayed reply but you are wrong. 14% of birth control pills are taken to relieve or treat a medical condition.
Ovarian cysts, severe bleeding, Turner Syndrome.
This is not considering the health benefits to a married woman of planning and spacing pregnancies or contraception during a time pregnancy would be contraindicated (such as recovering from other health problems or while prescribed teratrogenic medication). A woman for whom pregnancy might be permanently contraindicated might wish to use it while deciding on permanent measures. But of course her Catholic employer would refuse to cover those too.
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Herb Van Fleet
/ February 7, 2012So here’s the government getting all up in the ladies privates again. Big Sister at your service. The rule by HHS, as I understand it (by reading it a few minutes ago) requires most health insurance plans to cover preventive services for women including recommended contraceptive services without charging a co-pay, co-insurance or a deductible. The rule also allows certain non-profit religious employers that offer insurance to their employees the choice of whether or not to cover contraceptive services.
So, what we have here is the federal government, forcing states to effectuate a breach of contract between certain insurance companies and their insured, thus violating Article 1, Section 10 of the Constitution, which prohibits states from making any law “impairing the obligation of contracts.” Then there is the violation of the first amendment that prohibits Congress from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof,” which means the HHS rule cannot separate out religious institutions from all other institutions and give them certain options simply because they are religious. As if that’s not enough, there are some possible violations of privacy rights under the IXth Amendment that were established by SCOTUS in Griswold v. Connecticut and Roe v. Wade. And there are others that I’m sure the creative lawyers will find.
No doubt there will be lawsuits here. Many of them. Great. Like my tax dollars aren’t already stretched to the max. Arg!
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R. Duane Graham
/ February 8, 2012Herb,
First, the government is not mandating that any of “the ladies” actually use any contraceptive, but only have access to them. So I don’t see how that can be construed as “Big Sister” government.
Second, I fail to see how the feds are “forcing states to effectuate a breach of contract between certain insurance companies and their insured” that would be a violation of Section 10 of Article I.
As you know, such actions have been justified by the courts under the government’s “police powers” used, among other things, to protect consumers from various kinds of harm. A short and handy summary I found on Wikipedia explains why the feds are within their rights:
Now, you might not like the way the courts have ruled regarding the Contract Clause, but it is what it is.
Finally, you claimed,
Oh, yes they can, even though you and I might wish it couldn’t. That’s what the “free exercise” clause means, right? Government cannot prohibit the free exercise of religion, which is why there is an exemption in this case presumably.
And the other side of it is that “religious institutions” do not extend to things like Catholic-operated hospitals, which employ non-Catholics and operate in a secular environment, so the government can prohibit the church from pushing its doctrines on these workers and require the church to follow the law.
As for the lawsuits, they are, like Jesus’ poor, always with us. And they are relatively cheap compared to things like the Iraq war.
Duane
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Herb Van Fleet
/ February 8, 2012EC,
My reference to Big Sister was obviously, I hope, a spin on the Orwellian idea of Big Brother. The Feds have grown way too intrusive in all of our institutions. We often forget that another casualty of the Civil War was the death of state’s rights; the evisceration of the Xth Amendment.
Police power was always been reserved to the states. In fact, the principle of Pose Comitatus from the old English Law is what is supposed to keep the fed’s standing army out of the state’s police affairs. It’s why we have, or rather had, state militias and the IInd Amendment (which I argue is now inoperative.)
Health and safety are also activities that have traditionally been reserved to the states. Some take the “Welfare” in the “promote the general Welfare” clause in the preamble of the Constitution to include the idea of health along with “happiness, prosperity, and well being,” as the framers meant. However, like all of the clauses in the Preamble it does not give any power to the government. As Justice Harlan writes in Jacobson v. Massachusetts (1905), “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” In other words, Congress can’t hang its hat on the Welfare clause as authority for making any health laws.
Among other things that ruling could also mean that the establishment of a federal department of Health and Human Services is beyond the power of Congress and therefore unconstitutional. Of course, the Congress usually just winks at the Constitution when it makes laws anyway, so this is nothing new. Nonetheless, the power to protect health gets to the states via the Xth amendment, or it would if we still had a working Xth amendment.
Now, regarding the breach of contract issue, that comes about when a law (or regulation) is passed that conflicts with the one or more of the terms of an existing contract. You give the three tests from the Energy Reserves Group v. Kansas Power & Light case to determine if a law can trump a contract provision (or the whole contract.) In my opinion, the HHS rule, if adopted by the states, fails the 2nd test where the rule, “must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem.” I think when it comes to a rule involving condoms, it’s way too much of a stretch (pun intended) to say that said rule remedies “a broad and general social or economic problem.”
Finally there is the Ist amendment free exercise clause that you bring up. That question was addressed in Sherbert v. Verner (1963) where South Carolina refused to pay unemployment benefits to Adell Sherbert because of her religion, Jehovah’s Witness. The courts ruled that South Carolina violated Ms. Sherbert’s Free Exercise rights and ordered the state to pay up. So, the state can’t grant special rules regarding the free exercise of a person’s religion. Thus, my comment, “the HHS rule cannot separate out religious institutions from all other institutions and give them certain options simply because they are religious” appears to be legally correct.
Herb
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R. Duane Graham
/ February 8, 2012Herb,
I understood very well your Orwellian reference, which is why I rejected it in the case you tied it to.
And despite anyone’s dissatisfaction with the facts of evolving jurisprudence, the federal government has enjoyed a prominent role in the public health sphere during the 20th century (think Medicare and Medicaid, or even OSHA and the EPA and the FDA, etc.). These matters were once relegated to state authority, but now they are part of the federal government’s business, like it or not.
For the most part, the feds set public health standards through laws and subsequent regulations and the feds fund health research and advise and finance parts of state and local health care systems. All this adds up to a simple fact: in some important ways the feds have usurped (or, in some cases, has augmented) the police powers of the states as the feds web of influence over health matters has expanded.
In other words, if the federal government has the power to affect public health to the degree it has, it inherently has the police powers—the power to govern—to make sure it does so effectively. That power, generally found under the Commerce Clause in our Constitution and its interpretation, allows the feds to take appropriate action to safeguard the health and safety and welfare of the public.
Even if one construes, as does Justice Harlan, the Preamble as not having “substantive power” or authority to make health laws, the Commerce Clause, as it has been interpreted, does. It’s not that the Tenth Amendment’s federalism is necessarily dead, but that it has been understood in the context of the whole Constitution, including the powers under the Commerce Clause.
Let’s look at the Commerce Clause, which is an enumerated, fundamental power of Congress:
And now let’s look at the Tenth Amendment:
You can see that the Tenth Amendment reserves those powers “not delegated to the United States by the Constitution” to the states and to the people. But the Commerce Clause is one of those delegated powers, so it trumps the Tenth Amendment.
And we completely disagree about whether the HHS rule violates the second test under the ERG v. KP&L case. I have noted elsewhere that the disparity between women’s out-of-pocket costs for health care (largely related to reproductive care) were 68% higher than men’s, without the mandate that insurance companies cover contraceptive care. That is “a broad and general social or economic problem” that needs a remedy.
Finally, having said all of this, I want to make something clear: I don’t believe there is even a constitutional question involved here. Despite the partisan hysteria, this is simply a matter of whether non-church entities run by the Catholic Church are subject to federal (or state) jurisdiction with regards to general labor laws covering the workplace. Clearly they are and I don’t even think the matter would make it to the Supremes.
Duane
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Geoff Caldwell
/ February 9, 2012“……..Finally, having said all of this, I want to make something clear: I don’t believe there is even a constitutional question involved here…….”
And it is that type of misguided and shallow thinking that led to the “shellacking” in 2010 and thankfully keeps the far left in its permanent 20 percent minority status.
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Herb Van Fleet
/ February 18, 2012EC,
My apologies for this tardy response, but I’ve been off trying to earn a living for most of this past week. Anyway, I think we need some clarity on the government’s role in health care. Yes, there is the VA and the Feds have been providing health services to its soldiers since the beginning of the nation. But, that’s equivalent to an employer owing a clinic or HMO and providing health services to its employees Like the VA, it is a “closed” system. Of course some really bad guys also get health care in prisons. But, again, they are “guests” of the government.
As to Medicare and Medicaid, the role of the Feds here is to act as a health insurance provider; i.e., it pays for health services for those who qualify, which is distinct from having staff docs and nurses on the Fed’s payroll as in the VA.
And yhe Feds role is not police power, it’s the power of the purse. As far as I know, the HHS does not have the ability to arrest anyone. Any health standards set by the Feds, much like the Fair Employment Standards, are enforced through the Administrative Courts and violations are mostly subject to fines. And compliance is almost always voluntary. The actual health care laws, mainly torts like medical malpractice, and licensing, are under state control, not the Feds.
Now about the Commerce Clause. This power has been so contorted and misused that it would be unrecognizable today by the Framers. That clause was written by the Framers to cure some defects in the Articles of Confederation (1) to make clear that it was the federal government, not individual states, that handles trade with other sovereign nations, and (2) to stop states from imposing protective tariffs on goods entering their jurisdiction. It was never intended to reach the level of absurdity we have in cases like Wickard v. Filburn, where SCOTUS ruled in favor of the Feds and denied a farmer’s challenge that the Feds ability to regulate the production of wheat for commerce did not apply to wheat production intended wholly for the farmer’s own consumption. Or consider the case in Georgia where police shut down a lemonade stand run by three girls who were saving money to go to a water park because, police said, the girls needed a business license, a peddler’s permit, and a food permit to operate the stand, which cost $50 per day or $180 per year each. Unbelievable.
Taken to the extreme, the commerce clause, as it is applied today, has the effect of driving a truck filled with interstate commerce right through the 10th amendment. The framers put the 10th amendment in the Bill of Rights to point out that the Feds were to have LIMITED powers. But these days they are becoming more and more unlimited as SCOTUS has become the prime enabler. Speaking of which, our Supreme Court has evolved to the point where it is now the supreme branch of government with veto power over both the Congress and the Executive branches. We may have to live with their rulings, but we damn sure don’t have to like it.
AS to the ERG v. KPL case, you argue that a contract can be breached by the government if it is meant to cure “a broad and general social or economic problem.” In the instant case, that’s like saying men’s health needs and women’s health needs are the same. Sorry, I ain’t buying it.
Without belaboring the point (which I clearly have) my primary issue with the ACA is the “mandate” part. It is, in my opinion, a dangerous precedent that, if upheld by SCOTUS, could quickly lead us down the rabbit hole to a world that even Orwell couldn’t have invented.
So, I disagree vehemently with your contention that “I don’t believe there is even a constitutional question involved here.” If there was ever a Constitutional issue to be dealt with, the government mandates in the ACA is it. If not, then the Constitution itself will have become a waste of perfectly good parchment paper.
Herb
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ansonburlingame
/ February 8, 2012Ok, Now enters the Neanderthal,
A woman has a right to CHOOSE not to become pregnant. There are any number of ways to achieve that goal.
The church has a right to speak against birth control and use its power of moral persuasion to dictiate against such a practice.
What should government do in either case? Stay out of such choices or religious doctrine, completely. If nothing else that is the dividing line between church and state, is it not. A government should not for sure tell the church what to preach or moral position to take.
Sure there are limits. If the church decided to again burn heretics at the stake, government must step in. Come up with all the anecdotes you like in such regards. But as long as the church sticks to moral persuasion, government should keep out of it.
Now lets talk about health, women’s health. Once a woman is pregnant her health needs attention and that is not the argument here. It is what should be done by government to help a woman NOt become pregnant.
Want to argue about AIDS, etc, fine. The type of women’s birth control at issue here does NOTHING to prevent SDS.
Well, some will argue, specioulsy in my view, that contraceptives are preventive health care, they prevent preganancies. But there are other ways to skin that cat as well that does not contradict the teachings of the church.
Contraceptives are the EASY way to prevent pregnancies but they violate the moral dictates of the church. But some want to government to force the church to PAY for insurance that violates its moral teachings. THAT to me is a dilemma, even a gordian knot.
Solution. Allow the church to NOT purchase employee insurance with contraceptive mandates included. ALL the women employeed in that BUSINESS, that happens to be owned by the church, STILL have preventive HC, free preventive HC to avoid pregnancies. They simply have to drive to Planned Parenthood or other community services to get all the prevention possible, up to and including abortion for birth control.
So why the big uproar, today? The Administration did not see it coming. They knew that the vast majority of catholic women use contraceptives so no big deal. But they forgot that there are others involved in that moral dillemma and now we hear them speak rather loudly.
But instead of arguing right and wrong on either side, there remains a simple compromise available as suggested above. My guess is that is what will happen as well. Axelrod said as much, yesterday.
Anson
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Geoff Caldwell
/ February 8, 2012From the New York Times story on the Supreme Court’s most recent “religious liberty” decision in which it handed down a unanimous decision on the side of “religious liberty”:
Chief Justice Roberts devoted several pages of his opinion to a history of religious freedom in Britain and the United States, concluding that an animating principle behind the First Amendment’s religious liberty clauses was to prohibit government interference in the internal affairs of religious groups generally and in their selection of their leaders in particular.
“The Establishment Clause prevents the government from appointing ministers,” he wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”
If the latest contraception mandate is not government “interfering with the freedom of religious groups” than what is?
Axelrod and Obama are no dummies, they know, especially after the Hosanna-Tabor Church v. Equal Employment Opportunity Commission decision, that the mandate doesn’t stand a snowball’s chance in front of the Supreme Court but they also know it won’t make it to SCOTUS before the election so they really don’t care.
They rally the left wing base who put contraception on the same level as a constitutionally protected right but don’t have to worry about having their little ruse slapped down by the Supreme Court.
Sure it’s politics at it’s most cynical but nothing new for the Chicago club.
What they perhaps underestimated though was just how many Americans would see through the charade. After three years of one regulation, mandate and edict after another, there is a very strong current running through the nation right now that one freedom after another is coming under attack by this administration and whether the left likes it or not that current is getting stronger.
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R. Duane Graham
/ February 8, 2012Anson,
There are so many things wrong with what you wrote I don’t have time to debunk them all. But you said,
Let’s leave aside just how ridiculous are the moral dictates of a church that views most family planning methods as a moral evil. That is almost unspeakably irrational. But the moral dictates of the church do not—well, should not—enjoy a special privilege in the workplace, which is what the bishops are arguing. This is a secular republic, Anson, and if we want to keep it that way we have to be diligent about it.
This action by the Administration was not mucking around in the affairs of the church but making sure women who happen to work for Catholic entities outside of the church itself are treated just like everyone else. When put this way, it just doesn’t sound that radical to most people. But the right-wing will frame it as a religious liberty issue because it plays into what they have been saying, falsely, about Obama from the start.
Having said that, there is little doubt that a compromise will be found on this issue, but it would not be one I necessarily support. But then I don’t have to get reelected this year.
Duane
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ansonburlingame
/ February 8, 2012Duane,
You decline to debunk my argument generally but then said, “Let’s leave aside just how ridiculous are the moral dictates of a church that views most family planning methods as a moral evil. That is almost unspeakably irrational”
Now you have every right to say that as your opinion. But the government certainly does not nor should people administering the government hold such views as motives for their actions to govern.
You and they may think the church is crazy, but that is the right of a church to be crazy, to a degree, whatever modern society may think.
My point is that the actions requested by the church (not providing contraceptive insurance) takes NOTHING away for a woman employee of that business. She STILL retains the chocie not to become pregnant and go get the means to do so regardless of what the church may dictate.
I stand firmly behind a woman’s right to choose NOT to become pregnant and as well her right to have an abortion if she so chooses (as long as she is an adult legally).
But for government to dictate to a church what kind of insurance to provide is crossing the line of separation of church and state, in my view.
How about this slant on the issue. The is no law that I am aware of that any business must provide health insurance. Wonder why not? But absent that law, when a business decides to purchase health insurance for employees, where does the government get the right to step in and mandate the TYPE of health insurance to be PURCHASED by the business.
Anson
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R. Duane Graham
/ February 8, 2012The government is not commenting on the propriety of the church’s irrational doctrine. It is merely protecting the workplace rights of women, many of whom are not Catholics. And women are harmed by the church’s action, as they are required to obtain contraception in ways other women do not have to.
The women who work for Catholic Charities are entitled to the same access to contraceptive choices as other women in other workplaces. It is just that simple, even though you want to complicate it by saying that the government is dictating “to a church what kind of insurance to provide.” The church in this case is not operating as a church but as an employer in the secular world. That distinction needs defending in this debate and by God I’m going to defend it, if I am the last one standing.
As for your last idea, the reason Congress has the right to step in and require contraception coverage (for those plans that also provide prescription drug benefits) is because of the inequities involved. Research had previously shown that women of childbearing age were spending 68% more than men in out-of-pocket health care costs. And it was found that “reproductive health services accounted for a large portion of women’s health spending.” And this action was not limited to the federal government but happened at the state level too.
In California, after Catholic Charities challenged the state’s mandate (similar to the Obama Administration’s mandate), the state supreme court ruled against the church’s charitable arm:
I know you’re not much interested in ways to achieve equality, Anson, but this was, and remains, one area where it is possible to level the field for all.
Duane
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Jim Wheeler
/ February 8, 2012Well said, Duane.
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Geoff Caldwell
/ February 9, 2012And yet still ignored is how the Supreme Court has already ruled on a similar issue. 9 to 0, unanimous AGAINST government intrusion into religious freedom.
The left can cloak personal choice contraception as an “equality” issue all it wants it still doesn’t change the underlying power grab by this administration through regulatory mandate. A mandate of the type that even the four most liberal justices on the court deemed a “grab too far” so to speak.
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Herb Van Fleet
/ February 8, 2012To All,
A final thought here. As you may know, arguments in front of SCOTUS are scheduled in March for the mandatory pay provisions of the “Patient Protection and Affordable Care Act,” a.k.a. Obamacare. Judge Roger Vinson in “Florida et al v. United States Department of Health and Human Services” declared the law unconstitutional in an action brought by 26 states, on the grounds that the individual mandate to purchase insurance exceeds the authority of Congress to regulate interstate commerce. Vinson further ruled the clause was not severable, which had the effect of striking down the entire law. Vinson’s decision has been upheld by the Circuit Court. I believe it’s the severability issue that will get Obamacare in the end. It means that if one provision of the law is found to be invalid, then the entire law becomes invalid. If so, then all of this discussion will be moot.
Herb
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R. Duane Graham
/ February 8, 2012Herb,
I will bet you ten thousand of Mitt Romney’s dollars that the severability issue will not “get” the ACA “in the end.” And I doubt whether even this conservative-dominated SC will rule the mandate out of order. Kennedy may side with the good guys and Scalia should, if he is to be consistent with some of his past thinking.
Duane
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ansonburlingame
/ February 9, 2012Also in closing,
Duane wrote above, “It is merely protecting the workplace rights of women,”
A woman (nor a man) has a workplace “right” to HC insurance, as far as I know. The insurance is provided by the employer as a matter of attraching good workers.
So IF the government cannot mandate that an employer has the responsibility to provide insurance, how can it possibily mandate the content of the insurance chosen to be provided by the employer?
As for my quest for equality Duane, you know full well what I seek. It is equality of opportunity, not outcome. The “levelness” of the playing field is established by government mandate to ensure everyone has the opportunity to get into the starting gates.
But once the race begins, it is merit that allows some to lead, others to follow and yes, some to drop out of the race entirely, based on their own choices.
anson
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R. Duane Graham
/ February 9, 2012Anson,
Look, I don’t know why this is so hard to understand. This isn’t about women having a “right” to health insurance in the workplace. The right comes in when an employer chooses to provide the insurance. Then the coverage must be equitable, and equitable has been determined to mean that the insurance should cover contraceptives (if the insurance provides for other prescription drug coverage). That has been settled for some time now, both at the federal level as well as in a majority of the states, including Missouri.
Here is the relevant language for our state:
Duane
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Geoff Caldwell
/ February 9, 2012The law exempts specified insurance policies, including health carriers owned and operated by religious entities, from the provisions of the law.
Hmmmmmmmmmm
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ansonburlingame
/ February 9, 2012Duane,
I thought I had closed, but you won’t let me. You wrote, “Then the coverage must be equitable, and equitable has been determined to mean that the insurance should cover contraceptives (if the insurance provides for other prescription drug coverage). ”
That is what this whole argument is about, what is “equitable” and who gets to decide. You say government must do so and I say the employer has that choice, as long as everyone under employment is treated equally in matters of insurance coverage.
There are no “rights” involved here, certainly no rights of equity under the given business that employs a group of people. You are calling for equity across ALL busninesses, to which I object when government tries to do so.
And PLEASE don’t try to turn this into a Civil Rights issue. That argument was indeed settled in 1965.
And for sure you and I will NEVER agree on that point.
anson
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Geoff Caldwell
/ February 9, 2012And what about that pesky little fact that the Missouri law touted has a religious exemption?
SCOTUS just ruled 9 to 0 in a very similar case and no leftist dream in the world will change the one stubborn fact they all love to hate: One of this nation’s most bedrock principles is that of religious freedom. No one is denying women access to contraception but to hear the left scream if we don’t allow this mandate the next step is returning to back alley abortions. Nothing could be further from the truth but then again over here the truth is getting harder and harder to find.
As the Chicago Tribune editorial stated regarding the latest SCOTUS ruling on religious freedom:
In this decision, the court struck a crucial blow for the rights of conscience. If the First Amendment means anything, it means religious institutions must be allowed to decide whom they entrust with propagating the word of God. In that sacred realm, the only place for government is out of the way.
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R. Duane Graham
/ February 9, 2012There is a more than one right involved here, but I am failing to get you to understand that. One last try and then I will give up. In Missouri, for instance (did you even read the summary?):
The statute says that health carriers must include contraception coverage and prohibits discrimination against anyone taking advantage of such coverage and that the whole thing must remain private.
Now, what is so hard to understand about that? A woman in Missouri has the right to coverage, the right to use it without retaliation, and the right to keep it private. It has nothing to do with exemptions for religious objectors (which is also in the law) but has to do with rights provided by a Missouri statute to most women (at least those who work for a non-religious or non-objector entity).
Duane
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Geoff Caldwell
/ February 9, 2012It has EVERYTHING to do with religious exemptions. You use your whole post and all the comments in an attempt to justify that there is no “religious conscious” Constitutional issue with the Obama mandate, then go so far as to cite the Missouri law as justification BUT that same Missouri law offers what the Catholic Church wants in the first place (and which is current policy.)
If the Obama mandate was written as our current Missouri law I seriously doubt there would be an issue as there is written into the law the recognition of the constitutional right to freedom of religion in that the law specifically states:
“The law exempts specified insurance policies, including health carriers owned and operated by religious entities, from the provisions of the law.”
Requiring what other plans offer and providing privacy and anti-discrimination safeguards for non-religious plans has nothing to do with the argument at had.
Said argument being does the new mandate cross the Constitutional line? Over two hundred years of precedent and the most recent SCOTUS ruling on a similar shows that it does.
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Edwino Rasmijn
/ February 9, 2012The following article – from a separation of church and state standpoint – places this issue in a more comprehensive perspective. The article pinpoints that the catholic church considers it discrimination “if they aren’t given taxpayer dollars and the ‘religious’ freedom’ to spend those dollars in accordance with church law”. The article also demonstrates that this issue is just one of various concurrent issues in the same pipeline.
HIGHLY RECOMMENDED READING
http://au.org/church-state/february-2012-church-state/featured/the-bishops-obama-and-religious
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Geoff Caldwell
/ February 9, 2012The article can say anything it wants under the first amendment. This issue is what the Constitution and the Supreme Court has to say on the issue, and for over 200 years both have spoken firmly and loudly on the side of religious freedom. (Much to the chagrin of the left but much to the like of freedom.)
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R. Duane Graham
/ February 9, 2012(Edwino, see my reply here.)
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Herb Van Fleet
/ February 9, 2012Re: EC’s Comments of February 8, 2012 at 10:08 pm
Up until Obamacare, the Fed’s role in health care has been limited to a funding mechanism whereby Medicare taxes are collected and then redistributed to enrollees from the Medicare and Medicaid trust funds set up for purpose; i.e., it is a bank that pays for certain health care benefits for those enrolled in the program. Ditto with the disability part of Social Security. The tax is mandatory, enrollment is not. This system is wholly different from a law mandating health care insurance and the types of coverage and who is going to pay for it.
Nixon established the EPA and OSHA mostly to appease the growing environmental movement started in the 60’s by Rachel Carson and others. EPA can be justified because pollution tends to ignore state boundaries. But OSHA, not so much. All it does is create paperwork for business and a mindless government bureaucracy.
Next, you say, “if the federal government has the power to affect public health to the degree it has, it inherently has the police powers—the power to govern—to make sure it does so effectively. That power, generally found under the Commerce Clause in our Constitution and its interpretation, allows the feds to take appropriate action to safeguard the health and safety and welfare of the public.”
First, there is a real question whether the Feds have police power to affect the implementation of national health laws. As I mentioned above, Judge Vinson in “Florida et al v. United States Department of Health and Human Services,” in which 27 states have filed suit against the Feds to overturn the mandated payment for health insurance in Obamacare, ruled in favor of the states and was upheld by the 11th Circuit Court and is now with the Supremes. Vinson said, essentially, that the Commerce Clause did not apply. In fact, in my opinion, if the Commerce Clause could be construed to justify Obamacare, that would set a precedent whereby the states would simply be extentions of the federal government and otherwise superfluous.
To give you a flavor of how serious the states are about Obamacare, consider the language in Arizona’s HB2775:
“A. This state declares that the patient protection and affordable care act (P.L. 111-148) and the health care and education reconciliation act of 2010 (P.L. 111-152) are not authorized by the Constitution of the United States and violate its true meaning and intent as given by the founders and ratifiers and are declared to be invalid in this state, shall not be recognized by this state, are specifically rejected by this state and are considered void and of no effect in this state.
“C. An official, agent or employee of the United States government or any employee of a corporation providing services to the United States government who enforces or attempts to enforce an act, order, law, statute, rule or regulation of the United States government in violation of this section is guilty of a class 4 felony.”
Yes, you read that right. Try to enforce Obamacare in Arizona and you’ll be arrested. There are at least 12 other states that have bills pending with similar language and no doubt more on the way.
Now, about the Xth amendment. There is way too much to say about this right of the states. So for your edification, I’ll just refer you to The Tenth Amendment Center at https://tenthamendmentcenter.com/tenth-amendment-talking-points/
Herb
p.s., I’ll take your 10,000 Romney dollars and raise you 20,000 Warren Buffet dollars that the Supremes declare Obamacare unconstitutional and will do so before the November election.
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R. Duane Graham
/ February 10, 2012Herb,
Things have gotten a little mixed up between the narrow application of the ACA (as in the contraception rule) and its broader constitutionality, so:
1. The Feds have been in the health care business at least since 1812, providing medical care to vets. Today the VA health system—completely socialized medicine, by the way—is one of the most efficient health systems in the country. So, the government’s involvement in health care goes back a long way and continues in earnest, supported by mandatory taxes. In other words, the care that most of our veterans receive through the VA system is paid for by all Americans, even Americans who may object to the fact that the VA provides contraceptives to women.
2. The EEOC issued a ruling in 2000, based on Title VII of the Civil Rights Act, that was never controverted by the Bush Administration (which took office shortly after the opinion was released). The ruling is still in effect, to wit:
Since this ruling, many lawsuits against employers have been filed resulting in some mixed decisions in federal courts (the SC has never heard such a case, to date), but also resulting in widespread coverage by insurance plans for contraceptives.
The interesting thing about the EEOC decision is that although the Civil Rights Act (as amended by the Pregnancy Discrimination Act of 1978) allows for religious discrimination as grounds for exemption, it does not allow for discrimination based on sex. Many employers have just decided to provide the benefit rather than fight it out in the courts. (The California Supreme Court, as I pointed out earlier, did rule in 2004 that Catholic Charities was not exempt from its coverage law.)
3. Then there is the peyote case (Employment Div. v. Smith, 1990), in which Justice Scalia, writing for the majority, said,
That’s hard to refute, Herb, especially coming from one of your necessary allies on the Court, if the ACA is to be struck down.
4. Your reliance on District Court Judge Vinson is a little shaky. Vinson reasoned that,
Since Vinson is a District Court judge, he is bound by Supreme Court precedent, but his reasoning, from a principle of “limited government,” is in full contradiction to past Supreme Court decisions. In other words, he may wish the Court had not made all of those big-government rulings, but wishing isn’t supposed to make it so, particularly when the Court is supposed to respect precedent.
5. Finally (aren’t you glad?), we must not ignore the opinion of very conservative Judge Laurence Silberman (which I reviewed here at the time), which destroys (in my view) the conservative/libertarian case against the ACA:
I have enjoyed the debate, Herb, mainly because we didn’t have to resort to calling each other names! (And because we are able to bet other folks’ money.)
Duane
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Jim Wheeler
/ February 15, 2012@ Duane & Herb,
I too enjoyed the conversation between the two of you, ever so much better than the “contests” that result from the approach routinely chosen by certain other respondents.
The ACA decision is likely to be one of the most important ever. If the SCOTUS scraps it, just imagine the chaos and scrambling that must ensue! Oh my.
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