House Republicans kept up their attacks on President Obama's supposed "hostility" to religious liberty with a Judiciary Committee hearing that lasted well into the evening on Tuesday. Bishop William Lori, who heads the Catholic bishops' new "religious liberty" task force, reprised his appearance before the recent Oversight Committee hearing and its widely mocked all-male panel.
Republicans learned at least one lesson from that episode: other than Lori, all the witnesses at the Judiciary Committee hearing were women. Two were from Religious Right groups -- the Family Research Council and the Becket Fund for Religious Liberty. Another witness, testifying in defense of the administration's regulations on insurance coverage for contraception, was the dean of the school of public health at UCLA.
The arguments from Republican members and their witnesses boiled down to three main claims: the regulations requiring contraception coverage are unconstitutional burdens on religious organizations; the compromise to prevent religious organizations from having to pay for contraceptive coverage is only "an accounting gimmick" that does not resolve any of the moral or religious liberty issues; and the Obama administration has proven itself hostile to religious liberty and cannot be trusted to follow through on its promised accommodation.
Also on hand: more nonsensical analogies to join Bishop Lori's previous testimony that the regulations were akin to forcing a Jewish deli to serve pork. Committee Chair Lamar Smith asked whether the government could force people to drink red wine for its health benefits. (As Rep. Zoe Lofgren noted, no one is being forced to use birth control.) Religious Right favorite Rep. Steve King lamented that in the past Christians had "submitted" to Supreme Court decision on prayer in schools and the Griswold decision and the right to privacy "manufactured" by the Supreme Court.
Opponents also continued to insist that abortion is an issue: Asma Uddin, an attorney for the Becket Fund, said the government was trying to force "monks and nuns" to hand out "abortion drugs." Their claim that contraceptives are "abortifacients" reflects their belief that life begins at conception; Dr. Linda Rosentock, dean of the UCLA's school of public health and a member of the Institute of Medicine committee that was part of the review process on the regulations, clarified that the American College of Obstetrics and Gynecology considers that pregnancy begins at implantation and does not consider drugs that prevent implantation abortifacients.
A major claim of regulation opponents at the hearing is that the contraception guidelines serve no compelling government interest. Yet some Republicans were offended that the witness who could actually explain that interest, Dr. Rosenstock, was a doctor and not a lawyer. It disrupted their narrative that the hearing was not about women's health. Rosentock explained that the committee's evaluation of potential preventive treatments focused on the number of women affected, the effectiveness of treatment, and the potential impact on health. Contraceptives were at the top of the list, she said. In fact, the Centers for Disease Control has ranked family planning as one of the major public health achievements of the 20th Century.
Nevertheless, GOP members and their witnesses insisted, sometimes in apocalyptic terms, that the only issue was religious liberty. GOP Rep. Dan Lundgren came close to accusing Democrats of anti-Catholicism reminiscent of the know-nothing movement in the 1800s. Bishop Lori insisted that the new regulations were "crossing the Rubicon" in unprecedented ways (even though a majority of states have similar regulations.) Trent Franks called them a "slap in the face" to people of faith.
Several Democratic members pointedly noted that Lori was not speaking for all Catholic leaders, placing into the record positive statements about the proposed compromise from the Catholic Health Association, the Association of Jesuit Colleges and Universities, and other Catholic groups. Meanwhile, outside the hearing, other Catholic voices challenged the credibility of the bishops' religious liberty alarmism. The lead editorial at America, an influential Catholic weekly edited by Jesuit priests, says in part:
The religious liberty campaign seems to have abandoned a moral distinction that undergirded the conference's public advocacy in past decades: the contrast between authoritative teaching on matters of principle and debatable applications of principle to public policy.... By stretching the religious liberty strategy to cover the fine points of health care coverage, the campaign devalues the coinage of religious liberty. The fight the bishop's conference won against the initial mandate was indeed a fight for religious liberty and for that reason won widespread support. The latest phase of the campaign, however, seems intended to bar health care funding for contraception. Catholics legitimately oppose such a policy on moral grounds. But that opposition entails a difference over policy, not an infringement of religious liberty. It does a disservice to the victims of religious persecution everywhere to inflate policy differences into a struggle over religious freedom.
Indeed, a notable aspect of the entire debate over contraception coverage and its attendant "war on religion" rhetoric has been Republicans' new-found admiration for Thomas Jefferson's writings on religious liberty and church-state separation.
Of course, it is true that religious liberty requires some accommodation of religious beliefs, and that policy-makers and courts have sometimes struggled about just where to draw the lines. To note two examples that came up at Tuesday's hearing: the Amish have been allowed a religious exemption from compulsory education laws, but not from the requirement that they pay Social Security taxes. To opponents' "slippery slope" arguments that the contraception coverage requirements would give government massive new liberty-destroying powers, some Democrats posed their own questions, asking whether giving private employers the right to impose religious beliefs on their employee's health care coverage would extend to vaccinations and other types of health care.
The fact that the compromise does not yet exist in final form has also left some questions unclear -- for example how would compromise regulations apply to religious groups who self-insure rather than buying coverage in the marketplace? It seems likely that whatever form the final compromise takes, federal courts will evaluate how well the regulations balance competing interests. And religious liberty in America will survive.
For her part, Dr. Rosenstock said she would support efforts to minimize any burden on religion, but said she fears that those who continue to object to the compromise are really seeking to block women's access to contraceptive services altogether. The Constitution, she said, does not grant them that right.
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