Reproductive Rights, Part I: Contraception for All

As the learned C Bernard recently noted, Senator Orrin Hatch has of late been Plen-T Plaining of religious persecution. Hatch joins a chorus of other religious leaders clamoring against a recent executive mandate. In a Fact Sheet published on February 10, the White House announced that,

[u]nder the new policy to be announced today, women will have free preventive care that includes contraceptive services no matter where she works. The policy also ensures that if a woman works for a religious employer with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide, pay for or refer for contraception coverage, but her insurance company will be required to directly offer her contraceptive care free of charge.

This issue has in the past three weeks been debated in Congress, twisted into taxpayer support for promiscuity (more on this vomit later), and spun as both the tapestry of our progressive future and the thread of our demise as a civil society. But as so often happens in attempting to simplify the unfathomable vastness of the nation's administrative state, the actual form of this executive mandate was lost in the news media's regurgitation of the press release.

The federal administrative state is almost addictively complex, and more or less transparent in comparison to other branches of government if you know where to look. But for the administrative law nerds among us, I will simply say that finding the citation to an executive order or a rulemaking the media credits for this controversy was a bit like trying to catch a fly with a pair of chopsticks when you are not Mr. Miyagi.

With some heavy digging, I did locate the hard source for this most recent phase of the controversy, buried deep in the Federal Register. In case our readers are not aware, the Federal Register is the daily publication of the various rules and announcements of the massive federal administrative state responsible for providing everything from standard mail delivery, to interstate rates for transmission of electricity and natural gas, to maintenance of our national highway system. Government: we has it.

As a side note, and for a fascinating look at both the unfathomable complexity of the nation's administrative state and a sharp demonstration of precisely where your tax dollars are spent, check out the 2012 Death and Taxes poster.

For the past six months or so, the three federal agencies administering the national health care plan (Dept. of the Treasury (IRS), Dept. of Labor (DOL), and Dept. of Health and Human Services (HHS)) have been accepting public comments on a proposed regulation (a "rulemaking") to implement Section 2713 of the Affordable Health Care Act of 2010 ("Coverage of preventive health services," codified at 42 U.S.C. 300gg-13).

On February 15, the agencies announced the conclusion of the rulemaking at 77 Fed. Reg. 8,725. The rule will be codified in the Code of Federal Regulations (the CFR, sort of the equivalent of the US Code for the administrative state) in the sections for the various agencies (here (IRS), here (DOL), and here (HHS)).

So what does the rule do? It mandates nondiscriminatory coverage under a health care plan for preventive health services. HHS's regulations for this rule are codified at 45 CFR 147.30, a provision that in turn gives a subagency, the Health Resources and Services Administration (HRSA), the power to dictate what services must be covered.

As of February 15, the HRSA has issued guidelines declaring that, with two exceptions, health insurance plans must cover all FDA-approved "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity," and may not require a copay or other cost-sharing payment for covering the service.

The rule does reserve an exemption from this requirement for health plans provided by religious employers, defined as nonprofit organizations serving and employing members of their faith, whose primary purpose is the "inculcation of religious values." Translation: only purely religious institutions may claim an exemption; other religious organizations (e.g., hospitals, colleges, and charities) may not.

So come 2014 when the individual mandate kicks in, and unless you are a clergy or layperson under the employ of a church, whatever health insurance plan you or your employer elect to adopt must pay for women to have free access to contraceptives. So long as the SCOTUS doesn't decide that the individual mandate exceeds the limits of Congress's Commerce Clause powers when it decides HHS v. Florida et al., every woman will be granted the ability to prevent the birth of an unwanted child.

But never fear, religious institutions with a mission other than to indoctrinate believers! Do your mystical beliefs dictate that the addition of one more unwanted child to the welfare state is morally preferable to giving women the right to choose the timing of their children? Congress is on it.

Before the IRS, DOL, and HHS announced the proposed rule requiring free contraceptive coverage, Rep. Jeff Fortenberry (R-Nebraska) introduced H. 1179, a measure "[t]o amend the Patient Protection and Affordable Care Act to protect rights of conscience with regard to requirements for coverage of specific items and services."

In August 2011, about a month after the proposed rule was announced in the Federal Register, that always tactful family values stalwart, Senator Roy Blunt (R-Missouri), introduced S. 1467, the Senate equivalent. The bill as a whole was relabeled the "Respect for Rights of Conscience Act," but it's also notoriously known as the Blunt Amendment. It's goal, as you probably know, is to provide an exception to the mandatory coverage requirement for preventive services for those with a religious or philosophical objection to birth control.

On February 16, Rep. Darrell Issa (R-California) held a hearing of the House Committee on Oversight and Government Reform, entitled "Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?" In keeping with the theme of ignoring the contraceptive elephant in the room, the hearing's purpose was limited to considering "basic questions of religious freedom, and whether or not protection will be afforded to religious institutions who wish to follow their conscience in refusing to pay for products they find morally objectionable."

In attendance at this hearing were a panel of entirely male clergymen "concerned that government, under [the Obama Administration], is encroaching on their First Amendment Rights" to free exercise of faith. Behold:

Can you spot what's missing from this picture? That's right, readers, not a single vagina testified, at least in the first panel (at 1:24). To be fair, there were two representatives without a Y chromosome in the second panel (at 6:10).

The next chapter in this drama, though, stems from Rep. Issa's decision to exclude from participation Sandra Fluke, a female Georgetown Law School student. Ms. Fluke had wanted to speak to the committee on the benefit of birth control as a treatment for ovarian cysts, and on the expense she as a student incurred to pay for her own birth control prescription, roughly $1,000/year. But alas, the committee was not interested in hearing that their religious liberties could possibly have any negative social costs.

Not to be dissuaded, the Democrats later asked Ms. Fluke to their own hearing, attended only by Democrats, and lead by the always alarmingly-preserved Nancy Pelosi.

On Thursday, March 1, the Senate blocked the Blunt Amendment by a narrow 51-to-48 vote. But not before that most reasonable and unoffensive of talk-show hosts, Rush Limbaugh, got a word in and whipped up what we can only hope is his professional demise. Then again, not even being convicted of drug felony charges managed to take this particularly rotten cherry out of the public's eye.

In a flagrant flare of masturbatory misogyny, on his Wednesday, February 29, show last week our favorite felon called Ms. Fluke a "slut" and a "prostitute," and outright accused her of having so much sex she could not afford to pay for it, mystically equating the cost of birth control with the number of times a woman has sex. Quoth the Rush in his Thursday follow up:

Now, I am 61. Maybe something I haven't heard about that two women together would need contraception. That's a whole new ball game if that's the case. But I don't think we're talking about that. So it means there are men involved and that would mean there's some responsibility on the part of the men. Do they not have condoms? Why don't these women go ask the men to buy them contraception? Why go before a congressional committee and demand that all of us -- because they want to have sex any time, as many times and as often as they want, with as many partners as they want -- should pay for it? Whatever, no limits on this. I mean, they're going broke having to buy contraception! They're getting back-alley pills, folks. That's what this leads up to.

Even the conservative stalwart Christian Science Monitor is questioning whether Limbaugh is damaging the Republican Party's reputation.

As the dearly-departed George Carlin once said:

I predict that the next stage in this policy debate will be when the SCOTUS issues its opinion in HHS v. Florida et al., slated for an unusual three-hour oral argument on March 26. Stay tuned for the next installment of Reproductive Rights, Part II: Stay Out of My Uterus.