In Kansas, a bill to protect religious freedom angers gays

posted at 4:55 pm on February 16, 2012 by Tina Korbe

The Department of Health and Human Services has states spooked. At least, legislators in Kansas cited the administration’s contraception mandate as a reason to expedite passage of a bill to protect religious freedoms:

Supporters of a proposal in Kansas that’s described as an attempt to protect religious freedoms told state legislators Tuesday that President Obama’s ill-fated mandate for insurance coverage of birth control is a compelling example of why the measure is needed. …

The state House Judiciary Committee had a hearing on the proposed Preservation of Religious Freedom Act and is expected to vote on it by Monday. State Rep. Lance Kinzer, a Republican who is committee chairman, contends the measure simply writes into state law language from past Kansas court decisions for determining when government policies place too much of a burden on practicing religion. …

The bill would declare that state- and local-government policies shall not “substantially burden” people’s right to exercise their religious beliefs without showing a compelling interest and imposing the burden in the least restrictive way possible. It also would declare that people have the right to sue state and local government agencies if they feel their religious freedoms have been abridged.

Liberal activists in the state are not happy about this statute — but not because they support the president’s mandate (although they probably do). No, they’re worried that the Preservation of Religious Freedom Act will be used to nullify local and state laws to prevent bias — not just discrimination, but bias — against gays. The bill specifically says that the prevention of discriminatory practices — as outlined by Kansas state law and the Kansas and U.S. Constitutions — is a compelling interest for which the state might burden the free exercise of religion. It says nothing about local anti-bias ordinances that seek to make up for the fact that Kansas state law does nothing to prevent discrimination in employment, housing or public accommodations based on sexual orientation.

The response of these gay activists is instructive. It’s a further indication that some gay advocates think the free exercise of religion — when it reveals a bias against gay behavior — should itself be construed as discrimination. It underscores that an overlap exists between the purported rights of gays to marry and the long-acknowledged, constitutionally-enshrined right to religious freedom. Someday, for example, might the state not compel churches to perform gay wedding ceremonies or compel landlords to rent to gay couples even if they’re religiously opposed to gay behavior? I know a landlord who won’t rent to cohabiting couples because she’s religiously opposed. Should she not have the right to rent her property to whomever she wishes? The battle for state-recognized same-sex marriage is thorny precisely because of the way in which it eventually touches on religious freedom.

Incidentally, this Kansas statute sounds a little like the 1993 federal Religious Freedom Restoration Act, which passed the House of Representatives unanimously, passed the Senate by a vote of 97-3 and was signed into law by Bill Clinton. That statute says the federal government may “substantially burden” a person’s “exercise of religion” only if it “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering” that interest. The existence of the federal law doesn’t obviate the need for similar laws at a state level, but it is worth noting in this post that the federal law exists — and the HHS contraception mandate is in clear violation of it.


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NarutoKenin in 3…2..1…

Lanceman on February 16, 2012 at 4:57 PM

might the state not compel churches to perform gay wedding ceremonies

DO NOT EVER USE THIS EXAMPLE… because liberals will concede only that little bit of freedom and nothing else… seriously, get more creative.

ninjapirate on February 16, 2012 at 5:00 PM

Compelling government interest is the device that will, far more than the commerce clause, deny Americans their liberty.

xkaydet65 on February 16, 2012 at 5:01 PM

might the state not compel churches to perform gay wedding ceremonies

DO NOT EVER USE THIS EXAMPLE… because liberals will concede only that little bit of freedom and nothing else… seriously, get more creative.

Let me help you with a better example…

Should religious schools be able to keep homosexual behavior out of their schools? This is the biggy… forcing churches to marry gays is on no one’s agenda and when conservatives bring that up you just give liberals a straw man they can use.

ninjapirate on February 16, 2012 at 5:01 PM

Loophole for the gays: claim that homosexuality is the religion that worships the gods Lesbos and Homos…

affenhauer on February 16, 2012 at 5:02 PM

Liberal activists in the state are not happy about this statute — but not because they support the president’s mandate (although they probably do). No, they’re worried that the Preservation of Religious Freedom Act will be used to nullify local and state laws to prevent bias — not just discrimination, but bias — against gays.

You mean when Government uses it’s heavy hand to “fix” things that are none of it’s friggin’ business in the first place…there are unintended consequences?

Tim_CA on February 16, 2012 at 5:02 PM

The bill would declare that state- and local-government policies shall not “substantially burden” people’s right to exercise their religious beliefs without showing a compelling interest and imposing the burden in the least restrictive way possible. It also would declare that people have the right to sue state and local government agencies if they feel their religious freedoms have been abridged.

The first court case where a Muslim in Kansas argues that the state cannot abridge their religious freedom to practice Sharia is going to be a hoot!

alchemist19 on February 16, 2012 at 5:03 PM

“In Kansas, a bill to protect religious freedom angers gays”.

For crying out loud, what DOESN’T anger gays? Let me amend that. What doesn’t anger gays that won’t be censored in here.

MikeinPRCA on February 16, 2012 at 5:03 PM

when conservatives bring that up you just give liberals a straw man they can use.

ninjapirate on February 16, 2012 at 5:01 PM

That’s ok. We have gasoline & matches.

Lanceman on February 16, 2012 at 5:03 PM

Perfectly reasonable.

Boomer_Sooner on February 16, 2012 at 5:04 PM

For crying out loud, what DOESN’T anger gays? Let me amend that. What doesn’t anger gays that won’t be censored in here.

Rolling over and letting them do whatever they want, metaphorically for sure and probably literally as well.

teke184 on February 16, 2012 at 5:06 PM

Gays are perpetually paranoid and unhappy… will never make them happy. I get so tired of the whining….

ultracon on February 16, 2012 at 5:06 PM

For crying out loud, what DOESN’T anger gays?

MikeinPRCA on February 16, 2012 at 5:03 PM

glitter

Deafdog on February 16, 2012 at 5:06 PM

Dr. Laura was right.

Lanceman on February 16, 2012 at 5:07 PM

Supporters of a proposal in Kansas that’s described as an attempt to protect religious freedoms told state legislators Tuesday that President Obama’s ill-fated mandate for insurance coverage of birth control is a compelling example of why the measure is needed.

This is more than hilarious. Kansas has a tiny population of Catholics, probably no more than 15% of the state. We’re talking about BIRTH CONTROL PILLS people, not abortions. Don’t people have any real problems to worry about?

The Chinese and other competitors must think we’re idiots.

bayam on February 16, 2012 at 5:07 PM

For crying out loud, what DOESN’T anger gays?

MikeinPRCA on February 16, 2012 at 5:03 PM

Vampire Love stories

Tim_CA on February 16, 2012 at 5:08 PM

The first court case where a Muslim in Kansas argues that the state cannot abridge their religious freedom to practice Sharia is going to be a hoot!

alchemist19 on February 16, 2012 at 5:03 PM

Sharia discriminates, not least against women.

darwin on February 16, 2012 at 5:08 PM

Is this similar to the bill currently being debated in Tennessee that would make it illegal for teachers and administrators in public schools to acknowledge the existence of homosexuality before high school?

theoddmanout on February 16, 2012 at 5:09 PM

This is more than hilarious. Kansas has a tiny population of Catholics, probably no more than 15% of the state. We’re talking about BIRTH CONTROL PILLS people, not abortions. Don’t people have any real problems to worry about?

The Chinese and other competitors must think we’re idiots.

Those Chinese you’re talking about won’t play Knicks games because Jeremy Lin talks about Jesus.

ninjapirate on February 16, 2012 at 5:09 PM

Is this similar to the bill currently being debated in Tennessee that would make it illegal for teachers and administrators in public schools to acknowledge the existence of homosexuality before high school?

No… and if you thought they were similar then you’re an idiot.

ninjapirate on February 16, 2012 at 5:10 PM

The Chinese and other competitors must think we’re idiots.

bayam on February 16, 2012 at 5:07 PM

Yeah, we should really be taking a page from the Chinese playbook on individual rights. /

sharrukin on February 16, 2012 at 5:10 PM

This is more than hilarious. Kansas has a tiny population of Catholics, probably no more than 15% of the state. We’re talking about BIRTH CONTROL PILLS people, not abortions. Don’t people have any real problems to worry about?

The Chinese and other competitors must think we’re idiots.

bayam on February 16, 2012 at 5:07 PM

Yeah, which according to the left 98% of Catholic women already buy on their own. The reason for mandating it then escapes me.

“Here! Stop buying something so we can make others buy it for you!”

darwin on February 16, 2012 at 5:10 PM

The Chinese and other competitors must think we’re idiots.

bayam on February 16, 2012 at 5:07 PM

Your Department of Education at work…

affenhauer on February 16, 2012 at 5:10 PM

These social issues that Gov’t has no business in, anyway, are setups by the left to THEN define ANY possible opposition as haters, intolerant, bigots, etc.
Alinsky, for sure.

pambi on February 16, 2012 at 5:11 PM

Gays are perpetually paranoid and unhappy… will never make them happy. I get so tired of the whining….

ultracon on February 16, 2012 at 5:06 PM

Same here. Just pathetic all around.

Norwegian on February 16, 2012 at 5:11 PM

The Chinese and other competitors must think we’re idiots.

Seriously numnuts, do you want Chinese style religious freedom in the US? Do you want the government regulating reincarnation like they do over there?

ninjapirate on February 16, 2012 at 5:12 PM

Atheist Feeeeeeeeeeeeeeeeevah?

Eph on February 16, 2012 at 5:12 PM

Vampire Love stories

Tim_CA on February 16, 2012 at 5:08 PM

Thou speakest for thineself and thineself alone, Lestat.

Jeddite on February 16, 2012 at 5:12 PM

How would you like being forced to purchase my guns?

blink on February 16, 2012 at 5:11 PM

I’d think I’d like it if bayam bought guns for me.

darwin on February 16, 2012 at 5:13 PM

I hate it when Conservatives use euphemisms.

Why are homosexuals afraid to call themselves … homosexuals?

And why are so many people afraid to call them … homosexuals?

Of course, these questions are rhetorical.

OhEssYouCowboys on February 16, 2012 at 5:14 PM

“substantially burden” people’s right to exercise their religious beliefs without showing a compelling interest and imposing the burden in the least restrictive way possible

I think it would be wiser to affirm the 1st Amendment without leaving loopholes regarding government’s compelling interest.

As far as I’m concerned, the only compelling restriction would be if a religion actively incorporated doing harm to its members (i.e., murder, criminal abuse) as part of its religious tenets and practice.

(Ironically the Obama administration is busy trying to impose active participation in murder by religious people)!

The 1st Amendment is our guard, and we should stick to that as trumping everything else.

INC on February 16, 2012 at 5:14 PM

Do you want the government regulating reincarnation like they do over there?

ninjapirate on February 16, 2012 at 5:12 PM

As a reincarnationist, I’m on the fence on that one.

Lanceman on February 16, 2012 at 5:15 PM

The fact that they object is not the least bit surprising really, considering Teh Gays tend to see discrimination on virtually the exact same timetable as democrats see racism (that’d be 24-7-365).

Tim Zank on February 16, 2012 at 5:16 PM

This is more than hilarious. Kansas has a tiny population of Catholics, probably no more than 15% of the state.

And it has a microscopic population of gays, probably no more than 3% of the state.

So why does the smaller minority get to impose its will on the larger one?

We’re talking about BIRTH CONTROL PILLS people, not abortions. Don’t people have any real problems to worry about?

Nope, we’re talking about abortions. You and your Obama Party want to force Catholics and others with moral objections to pay for abortions and abortifacients.

The reason why is pretty obvious, when you look at how much money Sebelius and the rest of the Obama Party collect from abortionists and abortion pushers.

The Chinese and other competitors must think we’re idiots.

bayam on February 16, 2012 at 5:07 PM

Oh, they definitely think Obama and his supporters like you are idiots.

Which is why they are so supportive of keeping the Obama Party in power. After all, if you sold liquor, why wouldn’t you support an alcoholic?

northdallasthirty on February 16, 2012 at 5:16 PM

I’m waiting for the Commerce Clause prohibition against the private ownership of firearms. Why not? To prohibit is simply the logical opposite of to mandate … and it’s been made clear that the State has no problem mandating in the religious arena – First Amendment be damned.

In time, the Second Amendment will, also, be damned by the State.

OhEssYouCowboys on February 16, 2012 at 5:17 PM

Obama, liberals, atheists and homosexual activists want you to have the freedom to practice your Christianity as much as you want as long as it’s in your basement in the middle of the night with he lights out where no one can hear or see it.

JellyToast on February 16, 2012 at 5:17 PM

OhEssYouCowboys on February 16, 2012 at 5:14 PM

Not afraid.

Gay is easier to type….and gay people prefer it.

I don’t call myself Heterosexual….I’m straight.

who loses?

Tim_CA on February 16, 2012 at 5:18 PM

And this is the main reason someone like me is against gay marriage. I was agnostic back when I though gay marriage was about live and let live. Then it happened in Massachusetts, and it intruded on religious freedom and parental rights. The fact that this law says NOTHING about homosexuals, but it has them up in arms is telling. The ultimate goal is the curtailing of religious freedom. It is chilling.

melle1228 on February 16, 2012 at 5:18 PM

we need a freedom from religion and superstition act.

sesquipedalian on February 16, 2012 at 5:19 PM

Gays are perpetually paranoid and unhappy… will never make them happy. I get so tired of the whining….

ultracon on February 16, 2012 at 5:06 PM”

Yes, unlike conservatives, tea partiers and religious people who NEVER complain or play the victim card. /

Mmm...Burritos on February 16, 2012 at 5:20 PM

Obama, liberals, atheists and homosexual activists want you to have the freedom to practice your Christianity as much as you want as long as it’s in your basement in the middle of the night with he lights out where no one can hear or see it.

JellyToast on February 16, 2012 at 5:17 PM

Oh, in honor of our Superiors … the Chinese … State sanctioned churches … with State required membership rolls … will be allowed.

Christians will have their … freedom. As allowed by the State.

OhEssYouCowboys on February 16, 2012 at 5:20 PM

Kansas has a tiny population of Catholics, probably no more than 15% of the state

Even if there was only 1 Catholic in the state, he should still have his rights protected.

philoquin on February 16, 2012 at 5:20 PM

we need a freedom from religion and superstition act.

sesquipedalian on February 16, 2012 at 5:19 PM

This site has been filled with trolls lately… why hasn’t someone cleaned them up?

ninjapirate on February 16, 2012 at 5:21 PM

The LGBT advocacy groups in KS are centered in Lawrence (home of the Univ. of Kansas), in Douglas County, the only “blue” county in the state (out of over 100) and the nearest thing we have to Berkley CA. All things “liberal/progressive” emanate therefrom, and there are scattered adherents to their agendae elsewhere across the state, always agitating for power and control over others in the name of their latest victim-group-du-jour…

They had the upper hand here in Manhattan (home of K-State Univ. and the *2nd* largest LGBT-gang of victim-mongers) *until* the TEA party groups hereabout successfully flipped the City Commission in the last election from 3-2 lib (with 2 K-State professors and a “Mini-Me” who echoed their every move) to 3-1-1 CONSERVATIVE. The new Commission promptly repealed the freshly enacted “gender non-discrimination” regulations (better described as “anti-landlord/anti-business/anti-employer freedom law”) in their very first action. They also put a stop to the tax-&-spend habits of the previous Commissions and put the City on course to fiscal sanity…

Have no doubt that TEA Party/conservative activism can & does have enormous impact, especially on the local level…

“Our freedom is not for sale, and we reserve the right to defend it from theft.” ~ Doctor Zero

“Cogito, ergo TEA Party!” ~ DeepWheat

DeepWheat on February 16, 2012 at 5:21 PM

Someday, for example, might the state not compel churches to perform gay wedding ceremonies or compel landlords to rent to gay couples even if they’re religiously opposed to gay behavior?
posted at 4:55 pm on February 16, 2012 by Tina Korbe

Someday, for example, might the state not compel churches to perform atheist wedding ceremonies or compel landlords to rent to inter-racial couples even if they’re religiously opposed to such?

I mean…as long as were asking dumb hypothetical questions…right?

verbaluce on February 16, 2012 at 5:22 PM

The ultimate goal is the curtailing of religious freedom. It is chilling.

melle1228 on February 16, 2012 at 5:18 PM

Small steps. As we know, the left never stops. If you give in to one goal, they simply add another, and another, and another until we’re all dead.

darwin on February 16, 2012 at 5:22 PM

who loses?

Tim_CA on February 16, 2012 at 5:18 PM

Those who feel compelled to alter their words … and thoughts … pursuant to political correctness?

You know … the weak-minded and cowardly.

OhEssYouCowboys on February 16, 2012 at 5:23 PM

This site has been filled with trolls lately… why hasn’t someone cleaned them up?

ninjapirate on February 16, 2012 at 5:21 PM

Sesquipedouchebag, like Bradky, has been here for quite some time. Some trolls never get the hammer because they never cross the line.

Lanceman on February 16, 2012 at 5:23 PM

we need a freedom from religion and superstition act.

sesquipedalian on February 16, 2012 at 5:19 PM

How did you get in? There’s a minimum three digit IQ requirement to comment here.

darwin on February 16, 2012 at 5:23 PM

Kansas has a tiny population of Catholics, probably no more than 15% of the state

Some people don’t get that if they intrude on religion then they can intrude on speech, protest, and expression as well.

melle1228 on February 16, 2012 at 5:24 PM

The first court case where a Muslim in Kansas argues that the state cannot abridge their religious freedom to practice Sharia is going to be a hoot!

alchemist19 on February 16, 2012 at 5:03 PM

lol … yep … and I gots popcorn and want to watch the case …..

conservative tarheel on February 16, 2012 at 5:24 PM

It’s a further indication that some gay advocates think the free exercise of religion — when it reveals a bias against gay behavior — should itself be construed as discrimination.

Religion as a “hate crime”.

You know it’s going there.

squint on February 16, 2012 at 5:25 PM

compel landlords to rent to gay couples even if they’re religiously opposed to gay behavior? I know a landlord who won’t rent to cohabiting couples because she’s religiously opposed. Should she not have the right to rent her property to whomever she wishes?

Welcome to the future – it’s called California.

peski on February 16, 2012 at 5:26 PM

Gays are perpetually paranoid and unhappy… will never make them happy. I get so tired of the whining….

ultracon on February 16, 2012 at 5:06 PM

Same here. Just pathetic all around.

Norwegian on February 16, 2012 at 5:11 PM

Oh, the irony…

verbaluce on February 16, 2012 at 5:27 PM

Religion as a “hate crime”.

You know it’s going there.

squint on February 16, 2012 at 5:25 PM

I think that those in the pulpit have already been charged with “hate speech” in both Canada and Denmark – regarding homosexuality.

And, you’re right … it’s only a matter of time, here.

OhEssYouCowboys on February 16, 2012 at 5:27 PM

Those who feel compelled to alter their words … and thoughts … pursuant to political correctness?

You know … the weak-minded and cowardly.

OhEssYouCowboys on February 16, 2012 at 5:23 PM

um….really not following.

It’s “weak-minded and cowardly” to call a “homosexual” Gay? And who’s talking about “altering words”?

Do you not beleive that the words “Gay” and “Homosexual” mean the same thing in modern society?

Your argument baffles me.

Tim_CA on February 16, 2012 at 5:28 PM

Religion as a “hate crime”.

You know it’s going there.

squint on February 16, 2012 at 5:25 PM

In Europe one can be arrested for condemning homosexuality … including religious officials.

Odd that you can also be arrested for speaking ill of Islam as well.

darwin on February 16, 2012 at 5:29 PM

The first court case where a Muslim in Kansas argues that the state cannot abridge their religious freedom to practice Sharia is going to be a hoot!

alchemist19 on February 16, 2012 at 5:03 PM

An appeals court has already struck down a ban of sharia law.

melle1228 on February 16, 2012 at 5:29 PM

Some trolls never get the hammer because they never cross the line.

Lanceman on February 16, 2012 at 5:23 PM

or maybe they’re not trolls, they just have a different opinion.

sesquipedalian on February 16, 2012 at 5:30 PM

The existence of the federal law doesn’t obviate the need for similar laws at a state level, but it is worth noting in this post that the federal law exists — and the HHS contraception mandate is in clear violation of it.

Really Tina? What about this?

The following Commission Decision finds reasonable cause to believe that discrimination occured under Title VII of the Civil Rights Act of 1964, as amended, in two charges challenging the exclusion of prescription contraceptives from a health insurance plan. The Decision is a formal statement of Commission policy as applied to the facts at issue in these charges.
Decision
Summary of Charge

The Charging Parties, female employees of Respondents, allege that Respondents have engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. (Title VII). Specifically, Charging Parties challenge Respondents’ failure to offer insurance coverage for the cost of prescription contraceptive drugs and devices.
Jurisdiction

Respondents are employers within the meaning of Section 701(b) of the Act. All other jurisdictional requirements have also been met.
Summary of Investigation

Charging Party A, a registered nurse, began working for Respondent A in 1997. Under its health insurance plan, Respondent A covers numerous medical treatments and services, including prescription drugs; vaccinations; preventive medical care for children and adults, including pap smears and routine mammograms for women; and preventive dental care. Respondent A also covers the cost of surgical means of contraception, namely vasectomies and tubal ligations. However, Respondent A’s plan excludes coverage for prescription contraceptive drugs and devices, whether they are used for birth control or for other medical purposes.

Charging Party A wishes to use oral contraceptives for birth control purposes. Based on her medical history, Charging Party A also wishes to use oral contraceptives to alleviate the symptoms of dysmenorrhea and pre-menstrual syndrome and to prevent the development of ovarian cancer.

Charging Party B, a registered nurse, began her employment with Respondent B on May 1, 1999. Respondent B is commonly owned with Respondent A, and offers to its employees the same health insurance policy that Respondent A offers to its employees. As a result, Charging Party B is subject to the same exclusions from health coverage as Charging Party A. Charging Party B wishes to use Depo Provera, an injectible prescription contraceptive, for birth control purposes.

Charging Parties both allege that Respondents’ failure to offer coverage for prescription contraceptive drugs and devices constitutes discrimination on the bases of sex and pregnancy in violation of Title VII. Respondents deny that the exclusion of prescription contraceptives, which on its face does not distinguish between men and women, is discriminatory.
Discussion

Based on current medical knowledge, individuals who wish to avoid conception may choose from a range of contraceptive alternatives. These alternatives include surgical procedures, like vasectomies and tubal ligations; non-prescription birth control, like condoms; and prescription contraceptive drugs and devices, like birth control pills, diaphragms, intra-uterine devices, and Norplant implants. Prescription contraceptives are available only to women.

Oral contraceptives are also widely recognized as effective in treating certain medical conditions that exclusively affect women, such as dysmenorrhea (menstrual cramps) and pre-menstrual syndrome.(1) Contraceptives are also sometimes prescribed to prevent the development of ovarian cancer. Respondents’ insurance plan excludes contraceptives “regardless of intended use.”(2)

The Commission concludes that Respondents’ exclusion of prescription contraceptives violates Title VII, as amended by the Pregnancy Discrimination Act,(3) whether the contraceptives are used for birth control or for other medical purposes.
I. Exclusion of Prescription Contraceptives Used for Birth Control Purposes
A. The Pregnancy Discrimination Act Applies to Prescription Contraception

To clarify its long-standing intent with regard to Title VII, Congress enacted the Pregnancy Discrimination Act (PDA) to explicitly require equal treatment of women “affected by pregnancy, childbirth, or related medical conditions” in all aspects of employment, including the receipt of fringe benefits.(4) This language bars employers from treating women who are pregnant or affected by related medical conditions differently from others who are similarly able or unable to work. It also prohibits employers from singling out pregnancy or related medical conditions in their benefit plans.

As the Supreme Court has made clear, the PDA’s prohibitions cover a woman’s potential for pregnancy, as well as pregnancy itself. Recognizing that the PDA prohibits “discrimination on the basis of a woman’s ability to become pregnant,” the Court concluded that an employment policy that excluded women capable of bearing children from certain jobs was an impermissible classification because it was based on the potential for pregnancy. As the Court held, “[u]nder the PDA, such a classification must be regarded, for Title VII purposes, in the same light as explicit sex discrimination.”(5) Under the Court’s analysis, the fact that it is women, rather than men, who have the ability to become pregnant cannot be used to penalize them in any way, including in the terms and conditions of their employment.

Contraception is a means by which a woman controls her ability to become pregnant. The PDA’s prohibition on discrimination against women based on their ability to become pregnant thus necessarily includes a prohibition on discrimination related to a woman’s use of contraceptives. Under the PDA, for example, Respondents could not discharge an employee from her job because she uses contraceptives. So, too, Respondents may not discriminate in their health insurance plan by denying benefits for prescription contraceptives when they provide benefits for comparable drugs and devices.

This conclusion is supported by additional language in the PDA that specifically exempts employers from any obligation to offer health benefits for abortion in most circumstances.(6) Congress understood that absent an explicit exemption, the PDA would require coverage of medical expenses resulting from a woman’s decision to terminate a pregnancy.

The same analysis applies to the question of whether the PDA covers prescription contraceptives. As just discussed, the PDA’s prohibition of discrimination in connection with a woman’s ability to become pregnant necessarily includes the denial of benefits for contraception. Had Congress meant to limit the applicability of the PDA to contraception, therefore, it would have enacted a statutory exemption similar to the abortion exemption. Such an exemption, of course, does not exist for contraceptives.

Further, construing the PDA to cover contraception implements Congress’ clearly expressed intent in enacting the PDA. Congress wanted to equalize employment opportunities for men and women, and to address discrimination against female employees that was based on assumptions that they would become pregnant.(7) Congress thus prohibited discrimination against women based on “the whole range of matters concerning the childbearing process,”(8) and gave women “the right … to be financially and legally protected before, during, and after [their] pregnancies.”(9) It was only by extending such protection that Congress could ensure that women would not be disadvantaged in the workplace either because of their pregnancies or because of their ability to bear children.

In sum, the Commission concludes that the PDA covers contraception based on its plain language, the Supreme Court’s interpretation of the statute, and Congress’ clearly expressed legislative intent.
B. The PDA Requires Coverage of Prescription Contraceptives in this Case

The PDA requires that expenses related to pregnancy, childbirth, or related medical conditions be treated the same as expenses related to other medical conditions.(10) Because Respondents have failed to provide such equal treatment in this case, they are liable for discrimination under the PDA.

Contraception is a means to prevent, and to control the timing of, the medical condition of pregnancy. In evaluating whether Respondents have provided equal insurance coverage for prescription contraceptives, therefore, the Commission looks to Respondents’ coverage of other prescription drugs and devices, or other types of services, that are used to prevent the occurrence of other medical conditions. In Respondents’ plan, such drugs, devices, and services include:

vaccinations;
drugs to prevent development of medical conditions, such as those to lower or maintain blood pressure or cholesterol levels;
anorectics (weight loss drugs) for those 18 years of age and under;
preventive care for children and adults, including physical examinations; laboratory services in connection with such examinations; x-rays; and other screening tests, like pap smears and routine mammograms; and
preventive dental care (including oral examinations, tooth cleaning, bite wing x-rays, and fluoride treatments).(11)

Respondents have made three arguments to justify their exclusion. First, Respondents allege that their plan covers treatment of medical conditions only if “there is something abnormal about [the employee's] mental or physical health,”(12) and thus that the above-listed drugs and services are not appropriate comparators for evaluating Respondents’ coverage of contraceptives. However, this argument reflects a misunderstanding about the nature of pregnancy. It is widely recognized in the medical community that pregnancy is a medical condition that poses risks to, and consequences for, a woman.(13)

In addition, Respondents’ argument is also belied by the explicit terms of their health plan, which is not, in fact, restricted to coverage of “abnormal” conditions. First, Respondents cover contraception through surgical forms of sterilization – vasectomies and tubal ligations — without requiring any showing of the reasons individuals are undergoing the procedures. More broadly, Respondents cover numerous treatments and services that are designed to maintain current health and prevent the occurrence of future medical conditions, whether or not there is something “abnormal” about the employee’s current health status. It is appropriate, for example, to compare Respondents’ coverage of vaccinations or physical examinations to that of contraceptives, because both serve the same preventive purposes. Because Respondents have treated contraception differently from preventive treatments and services for other medical conditions, they have discriminated on the basis of pregnancy.(14)

Respondents also claim that Charging Parties’ claims are preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1144(a), 1191.(15) This claim is without merit. ERISA preempts certain state laws that regulate insurance, but explicitly exempts federal law from preemption.(16) Moreover, the fact that ERISA does not require health plans to “provide specific benefits” does not mean that other statutes – namely Title VII – do not impose such requirements where necessary to avoid or correct discrimination.

Finally, Respondents state that they have excluded contraception for “strictly financial reasons.”(17) Respondents’ motivation is, however, legally irrelevant. Although Congress clearly anticipated that an employer’s insurance costs would likely increase once the PDA required employers to cover pregnancy and related medical conditions,(18) it wrote no cost defense into the law.(19)
II. Exclusion of Prescription Contraceptives Used for Birth Control and/or Other Medical Purposes

The analysis set forth above applies to Charging Parties’ claims that Respondents’ exclusion unlawfully interferes with their ability to use prescription contraceptives for birth control purposes. Charging Party A has further claimed that Respondents’ exclusion applies not only to her use of contraceptives for birth control purposes, but also to her use of contraceptives to treat dysmenorrhea and menstrual cramps. Respondents have violated Title VII’s basic nondiscrimination principles regardless of the purpose of Charging Parties’ use of contraceptives.

Respondents assert that their exclusion does not constitute sex discrimination because it does not explicitly distinguish between men and women.(20) However, prescription contraceptives are available only for women. As a result, Respondents’ explicit refusal to offer insurance coverage for them is, by definition, a sex-based exclusion. Because 100 percent of the people affected by Respondent’s policy are members of the same protected group – here, women — Respondent’s policy need not specifically refer to that group in order to be facially discriminatory.(21)

Moreover, Respondents’ other efforts to mount a defense are unavailing. Respondents may not rely on arguments that coverage of contraception is precluded by ERISA or may be denied based on cost concerns. Nor can Respondents successfully argue that contraception is not medically necessary, whether used for birth control or other medical purposes. See Section I(B), supra.

The inequality in treatment is apparent whether Charging Parties wish to use contraceptives to prevent conception or for other medical purposes. This is because Respondents have circumscribed the treatment options available to women, but not to men. Respondents’ health plan effectively covers approved, non-experimental treatments for employees’ medical conditions unless those treatments involve contraceptives. This is unlawful.(22)
Conclusion

There is reasonable cause to believe that Respondents have engaged in an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, by failing to offer insurance coverage for the cost of prescription contraceptive drugs and devices. Charging Parties are entitled to reimbursement of the costs of their prescription contraceptives for the applicable back pay period. In addition, the District Office is instructed to determine whether any cognizable damages have resulted from Respondents’ actions.

In order to avoid violating Title VII in the future:

Respondents must cover the expenses of prescription contraceptives to the same extent, and on the same terms, that they cover the expenses of the types of drugs, devices, and preventive care identified above. Respondents must also offer the same coverage for contraception-related outpatient services as are offered for other outpatient services. Where a woman visits her doctor to obtain a prescription for contraceptives, she must be afforded the same coverage that would apply if she, or any other employee, had consulted a doctor for other preventive or health maintenance services. Where, on the other hand, Respondents limit coverage of comparable drugs or services (e.g., by imposing maximum payable benefits), those limits may be applied to contraception as well.

Respondents’ coverage must extend to the full range of prescription contraceptive choices. Because the health needs of women may change — and because different women may need different prescription contraceptives at different times in their lives — Respondents must cover each of the available options for prescription contraception. Moreover, Respondents must include such coverage in each of the health plan choices that it offers to its employees. See 29 C.F.R. part 1604, App. Q&A 24; Arizona Governing Committee v. Norris, 463 U.S. 1073, 1081-82 n.10 (1983).

The charges are remanded to the field for further processing in accordance with this decision.

EEOC Ruling.

lexhamfox on February 16, 2012 at 5:31 PM

Your argument baffles me.

Tim_CA on February 16, 2012 at 5:28 PM

Precisely.

When one is compelled to use a euphemism, it is for the purpose of deadening one to the term and conduct that the use of the euphemism is attempting to mask or hide.

It’s all about using euphemisms, so that the reality will be made more palatable and, accordingly, more ACCEPTABLE.

When homosexuality becomes acceptable, it is no longer considered sin … therefore obliterating religious teachings to the contrary.

OhEssYouCowboys on February 16, 2012 at 5:34 PM

or maybe they’re not trolls, they just have a different opinion.

sesquipedalian on February 16, 2012 at 5:30 PM

Difference of opinion is one thing. Provoking a negative reaction with every post to the majority is trolling. But such is your intent.

I don’t hate you, sesquipedouchebag. Without trollery this place would be DKoz.

Lanceman on February 16, 2012 at 5:37 PM

An appeals court has already struck down a ban of sharia law.

melle1228 on February 16, 2012 at 5:29 PM

I assume you’re talking about the Oklahoma ballot measure the courts have struck down. If so then they’re different issues. The Oklahoma thing said explicitly that sharia law could not be considered or applied on any matter (even fairly innocuous ones like the execution of a will) and it was ruled to be discriminatory because sharia was mentioned by name and it violated the First Amendment. The Kansas law says people can practice their religion (which includes Islam) freely and have the right to sue if their ability to practice freely is abridged. That’s a very different thing than what was in Oklahoma.

alchemist19 on February 16, 2012 at 5:38 PM

What ever happened to ‘majority rules’ in a democracy and those who weren’t being directly harmed just learning to cope with those issues that didn’t directly BENEFIT them, or weren’t meant specifically FOR them?I believe its called ‘tolerance’ and exercising tolerance is necessary if one is to thrive in a tolerant and complex society.

Why is it that every race, ethnic, and gender, specific special interest group has to immediately object to every single aspect of society that is meant for the general welfare of the society as a whole simply because it doesn’t cater specifically to that groups own overriding interests? In a democratic society the interest of the majority is served first. Any special accommodation for the interest of splinter groups is taken only when those special interest groups are the subject of real, proven harm. Not speculative assumption that some unspecified degree of harm may result at some point in the future.

How is it, that in a nation that was founded in the pursuit of religious tolerance, that the very religion that was practiced by the founders is now under assault from these self interested splinter groups? Where is THEIR tolerance?

I’d also like to point out that tolerance does not equate with embracing that or those being tolerated. It simply means that those who are being tolerant do not do harm to that or those being tolerated.

thatsafactjack on February 16, 2012 at 5:39 PM

It’s a further indication that some gay advocates think the free exercise of religion — when it reveals a bias against gay behavior — should itself be construed as discrimination.

Religion as a “hate crime”.

You know it’s going there.

squint on February 16, 2012 at 5:25 PM

Yup — and if speaking against homosexual behaviour is a hate crime, then not far behind will be intervention in families in order to “protect the children” from abuse because they make their kids go to church where they hear that such behavior is wrong. Cue sympathetic Oprahesque talk show appearances of kids forced to do hear abusive rhetoric in church calling homosexual behavior sin, sprinkle in a few “experts” and BOOM you have full scale tyranny — all while publically endorsing freedom of worship.

theblackcommenter on February 16, 2012 at 5:40 PM

It’s all about using euphemisms, so that the reality will be made more palatable and, accordingly, more ACCEPTABLE.

When homosexuality becomes acceptable, it is no longer considered sin … therefore obliterating religious teachings to the contrary.

OhEssYouCowboys on February 16, 2012 at 5:34 PM

Poppycock.

sorry, amigo….but the dreaded “killer homos” that you fear have been around since we sprouted “naughty bits”.

I’m not going to get hung-up on semantics…..Gay / Homosexual…..po”tay”to po”tah”to.

Gay people don’t scare me (like they do you apparently) and if they prefer “Gay” that’s fine….it harms me exactly zip.

Tim_CA on February 16, 2012 at 5:42 PM

Tolerance like free speech is a one way street for Liberals, the MSM, and the gay mafia (BIRMRM).

jukin3 on February 16, 2012 at 5:42 PM

Wait so why didn’t Tina actually cite or link to the supposed objections of gay rights activists to this bill?

Isn’t the larger point that there are already numerous court rulings and laws on the books which already protect religious freedom, but the state of Kansas has NO legislative protections against employment discrimination based on sexual orientation. Gay Kansas residents can still be fired because of their sexuality and have no recourse….

libfreeordie on February 16, 2012 at 5:42 PM

Wow. “Substantially burden” huh????

And just what part of religious freedom gives the government the right to regulate religion at all? Nevermind arguing over what constitutes “substantially”.

A burden is a burden, no matter how “substantial” one may think it is. And that is not allowed under the U.S. Constitution. Obozo cannot believe how well his culture war is going, I’m sure, when states are passing their own half measured laws in an attempt to ensure CONSTITUTIONAL FREEDOMS……

KMC1 on February 16, 2012 at 5:44 PM

Why is it that every race, ethnic, and gender, specific special interest group has to immediately object to every single aspect of society that is meant for the general welfare of the society as a whole simply because it doesn’t cater specifically to that groups own overriding interests?

thatsafactjack on February 16, 2012 at 5:39 PM

Because the left has made them believe that. It benefits the left to destroy a culture by dividing it into various groups and special interests. A united America is undefeatable. A divided America will destroy itself.

I pity the leftists that believe the communist propaganda and one day wake up realizing it’s far too late to undo what they’ve done.

darwin on February 16, 2012 at 5:44 PM

thatsafactjack on February 16, 2012 at 5:39 PM

Are you familiar with the concept of “tyranny of the majority”?

alchemist19 on February 16, 2012 at 5:44 PM

The 1st Amendment is our guard, and we should stick to that as trumping everything else.

INC on February 16, 2012 at 5:14 PM

Exactly. The U.S. Constitution and the Bill of Rights are the laws of the land. It’s strange that so many people and even States don’t understand this.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Very clear and concise. All of these States trying to make additional laws just muddy the water.

Also, they seem to fail to understand that Obamacare violates this 1st Amendment, but it is the Obamacare where this mandate is coming from.

bluefox on February 16, 2012 at 5:47 PM

If people need additional euphemisms for homosexuals, might I recommend “dudebanger”, “dudesmoocher”, or “broh’mo”. Nobody says “fratboy anymore.

Jeddite on February 16, 2012 at 5:48 PM

Are you familiar with the concept of “tyranny of the majority”?

alchemist19 on February 16, 2012 at 5:44 PM

Is “tyranny of the minority” any better?

squint on February 16, 2012 at 5:48 PM

Difference of opinion is one thing. Provoking a negative reaction with every post to the majority is trolling. But such is your intent.

Lanceman on February 16, 2012 at 5:37 PM

being merely provocative is not trolling, either.

sesquipedalian on February 16, 2012 at 5:50 PM

Gay Kansas residents can still be fired because of their sexuality and have no recourse….

libfreeordie on February 16, 2012 at 5:42 PM

Can a straight Kansas resident be fired for their sexuality and have no recourse as well?

darwin on February 16, 2012 at 5:50 PM

The existence of the federal law doesn’t obviate the need for similar laws at a state level, but it is worth noting in this post that the federal law exists — and the HHS contraception mandate is in clear violation of it.

Tina, Obamacare from which this HHS mandate was issued,is in violation of the U.S. Constitution and the 1st Amendment in particular.

bluefox on February 16, 2012 at 5:51 PM

being merely provocative is not trolling, either.

sesquipedalian on February 16, 2012 at 5:50 PM

Don’t flatter yourself. Your comments haven’t reached “provocative”.

darwin on February 16, 2012 at 5:51 PM

being merely provocative is not trolling, either.

sesquipedalian on February 16, 2012 at 5:50 PM

When it’s always negative, it is.

That said, I sometimes troll the obama-friendly FB question pages.
There is no fear of banning, unless someone deletes that particular post. And I can cross the line there. Just to piss people off.

Lanceman on February 16, 2012 at 5:54 PM

Is “tyranny of the minority” any better?

squint on February 16, 2012 at 5:48 PM

Yes because it’s very hard for a minority to be tyrannical in a democracy, and they wouldn’t have the fig leaf legitimacy of an election result that a tyrannical majority would.

alchemist19 on February 16, 2012 at 5:54 PM

DO NOT EVER USE THIS EXAMPLE… because liberals will concede only that little bit of freedom and nothing else… seriously, get more creative.

ninjapirate on February 16, 2012 at 5:00 PM

Right, never ever inform the rest of America what the homosexual community’s actual goal is. Just like were never ever suppose to point out that the goal of Islam is to force everyone on earth to convert to Islam.

SWalker on February 16, 2012 at 5:56 PM

Also, they seem to fail to understand that Obamacare violates this 1st Amendment, but it is the Obamacare where this mandate is coming from.

bluefox on February 16, 2012 at 5:47 PM

It has nothing to do with Obamacare. It has to do with Federal Court and EEOC rulings which took place before Obama even thought of running for President.

lexhamfox on February 16, 2012 at 5:57 PM

Yes because it’s very hard for a minority to be tyrannical in a democracy, and they wouldn’t have the fig leaf legitimacy of an election result that a tyrannical majority would.

alchemist19 on February 16, 2012 at 5:54 PM

Yea… somebody ought to explain that to Obama…….

SWalker on February 16, 2012 at 5:57 PM

After 9-11 i was traveling across the midwest and wanted some information about Judaism so looked for a synagogue and could not find one but i found a Catholic seminary though i thought it was just a church. I had stumbled into one of the pink seminaries and it was as gay as San Francisco bath house, it reeked of homosexuality, and they could not tell me where the nearest rabbi might be found, this was in Kansas so i am not surprised that this opposition comes there despite the book about whats the matter with Kansas.

dunce on February 16, 2012 at 5:58 PM

it’s very hard for a minority to be tyrannical in a democracy,

alchemist19 on February 16, 2012 at 5:54 PM

They seem to be doing a good job of it.

squint on February 16, 2012 at 5:58 PM

It has nothing to do with Obamacare. It has to do with Federal Court and EEOC rulings which took place before Obama even thought of running for President.

lexhamfox on February 16, 2012 at 5:57 PM

Then why is ObamaCare mandating it then?

darwin on February 16, 2012 at 5:58 PM

Don’t flatter yourself. Your comments haven’t reached “provocative”.

darwin on February 16, 2012 at 5:51 PM

i can make even the most obscure post into a 4-page comment fest when i feel mischievous.

sesquipedalian on February 16, 2012 at 5:59 PM

There is no fear of banning, unless someone deletes that particular post. And I can cross the line there. Just to piss people off.

Lanceman on February 16, 2012 at 5:54 PM

nah, i like a good argument but i’m not a sociopath.

sesquipedalian on February 16, 2012 at 6:00 PM

After 9-11 i was traveling across the midwest and wanted some information about Judaism so looked for a synagogue and could not find one but i found a Catholic seminary though i thought it was just a church. I had stumbled into one of the pink seminaries and it was as gay as San Francisco bath house, it reeked of homosexuality, and they could not tell me where the nearest rabbi might be found, this was in Kansas so i am not surprised that this opposition comes there despite the book about whats the matter with Kansas.

dunce on February 16, 2012 at 5:58 PM

So you went to a Seminary to find out about Judaism and the smell reminded you of your experience inside a San Francisco bath house.

OK…

lexhamfox on February 16, 2012 at 6:01 PM

i can make even the most obscure post into a 4-page comment fest when i feel mischievous.

sesquipedalian on February 16, 2012 at 5:59 PM

So you’re a troll attempting to be mischievously provocative then?

darwin on February 16, 2012 at 6:02 PM

I had stumbled into one of the pink seminaries and it was as gay as San Francisco bath house, it reeked of homosexuality

dunce on February 16, 2012 at 5:58 PM

When Pleasure Island was still in operation at Disney, I once made the mistake of going into one of the dance clubs during ‘GayDays’. Believe me, I know that smell. Ass & Brut.

Lanceman on February 16, 2012 at 6:02 PM

nah, i like a good argument but i’m not a sociopath.

sesquipedalian on February 16, 2012 at 6:00 PM

I’ve concluded you’re a socialist atheist. Is that correct?

darwin on February 16, 2012 at 6:03 PM

nah, i like a good argument but i’m not a sociopath.

sesquipedalian on February 16, 2012 at 6:00 PM

No, you’re a liberal. And I understand that.

Lanceman on February 16, 2012 at 6:04 PM

I’ve concluded you’re a socialist atheist. Is that correct?

darwin on February 16, 2012 at 6:03 PM

it’s half true.

sesquipedalian on February 16, 2012 at 6:04 PM

it’s half true.

sesquipedalian on February 16, 2012 at 6:04 PM

You’re a Maoist/atheist?

Communist/Wiccan?

darwin on February 16, 2012 at 6:06 PM

sesquipedalian on February 16, 2012 at 6:04 PM

Try “Marxist” atheist

the left is really clique-ish

Tim_CA on February 16, 2012 at 6:06 PM

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