Picking Your Battles

Senator Claire McCaskill (D-MO) knew that she was going to have a tough reelection race.  It was 2012 and Missouri had taken a turn to the right.  Mitt Romney was going to beat President Obama.  The key would be to choose her opponent.  Knowing his weaknesses, Senator McCaskill chose Representative Todd Akin and helped his campaign.  It has been eight years and many of you still recognize his name and his statements about “legitimate rape”.   McCaskill picked her battles and won the war.

This blog has detailed the Obama administration’s decision to include birth control pills, IUD’s, and the Morning After Pill as part of the Preventive Care Benefit of the Patient Protection and Affordable Care Act (Obamacare).  The first of close to a dozen posts about this issue was More Free Stuff which was posted on July 24, 2011, almost nine years ago.  To be clear, I was not then nor am I now personally opposed to these forms of birth control.  This is not about my personally held beliefs.  Nor do the inclusion of or opposition to these birth control methods have much to do with medicine, insurance, or health care.   This is a battle over control and religion.  Kathleen Sebelius, then the Secretary of Health and Human Services (HHS), picked this battle.  And she won the war, until this week when the war was lost.

The Supreme Court decided in a 7 – 2 vote this week that businesses could limit or exclude coverage for birth control under religious or moral grounds.  The case, Little Sisters of the Poor Saints of Peter and Paul vs. Pennsylvania, was nine years in the making.  Chief Justice Roberts has expressed his frustration in having the birth control issue making its way to his court again.  He couldn’t understand why the two sides couldn’t find a way to accommodate each other’s beliefs and needs.  I am personally shocked that the Chief Justice would actually expect either side to want to accommodate the other, much less make an honest effort at accommodation.

The Obama administration proposed a compromise in February 2012.  The impacted employers wouldn’t have to pay for birth control.  The employers could opt out and the insurance companies would front the cost.  As noted in my post of February 13, 2012:

Senator Roy Blount (R-MO) quickly released a statement via email.  It stated, in part:

“It’s clear that President Obama does not understand that it isn’t about cost – it’s about who controls the religious views of faith-based institutions.  President Obama believes that he should have that control.  Our Constitution states otherwise.

Just because you can come up with an accounting gimmick and pretend like religious institutions do not have to pay for the mandate, does not mean that you’ve satisfied the fundamental constitutional freedoms all Americans are guaranteed.”

A year later in the post The Great Imposition, February 11, 2013, we learned that there were people who weren’t just offended that their businesses might be providing birth control to their employees.  We then discovered that the inclusion of birth control in individual policies meant that other people will be able to make their own decisions.  There appeared to be a large number of Americans who felt compelled to impose their religion/morality/choices on others.  You may not have realized that you were accepting someone’s definition of religion when you were accepting a job in their machine shop or dental office.  Now they were upset that they couldn’t extend their reach to complete strangers.

According to the Jesuit Review, in a survey of American Catholics including many who go to Church regularly, “just 8 percent said contraception is morally wrong, with 89 percent saying it was either morally acceptable or not a moral issue at all.”  This, again, is a reminder that this entire issue is about control and religion.

As we have previously discussed, our health insurance policies covered birth control pills even when they didn’t.  Under the old rules, teenage girls would complain about difficult menstrual issues and the family doctor would prescribe birth control pills to help regulate their cycles.  Two problems solved!  The pills weren’t free, but the parents who could afford the cost didn’t mind.  Those who could not afford the cost of the monthly prescription were sent to Planned Parenthood (yes, that Planned Parenthood) for a reduced cost or even free.  This was a workaround, neither efficient nor 100% honest.  The PPACA ended all of that.  Birth control was now available to everyone, not just to those who could afford it.  Universal access was not universally appreciated.

We learned in 2010 that corporations are people.  People may not be people.  Certainly people aren’t always treated as people.  But corporations are not only people, but it turns out, as I noted in a post from July 3, 2014, these entities can even have sincere convictions.  The Supreme Court (Burwell vs. Hobby Lobby), days earlier in a 5-4 decision, continued the trend of dehumanizing individuals while we anthropomorphize corporations.

This week’s Supreme Court decision was in response to a Trump administration action taken in October 2017.  At the time this action seemed as much about Trump scoring A Small Victory as it did about birth control.   The key was that it opened up the possibility of eliminating the benefit under either religious or moral grounds.  In my opinion the most important issue was that since the Obama administration had the power to define these forms of birth control as part of Preventive Care, the Trump administration could just as easily change the definition.  Two of the more liberal justices, Elena Kagan and Stephen Breyer, agreed that that each administration had the right to create exemptions.

So what does it mean? When it comes to the Supreme Court, I always turn to Amy Howe a reporter at ScotusBlog.  Here is her summation:

“As both Alito’s and Kagan’s opinions suggest, the battle over the exemptions from the birth-control mandate may not be over yet. Instead, the dispute will go back to the lower courts for them to weigh in on whether the expansion of the exemptions was the product of reasoned decision-making, virtually guaranteeing that the litigation surrounding the exemptions will continue until well after the 2020 election. And depending on the results of the election in November, a change in administration could lead to efforts to narrow or eliminate the exemptions. But at the very least, today’s decision cleared the way for employers to claim the exemptions going forward.”

We can’t always pick the battles we wish to fight, nor is there ever a guarantee of victory.  Former Senator McCaskill easily won in 2012, but she lost by 6% in 2018.  The battle over the access and payment of birth control will continue.  Each side will celebrate some victories and each side will suffer some defeats.  It is a battle both sides want.



Picture – Armed With A Pen, Hardly Dangerous – David L Cunix


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