Green Room

Contraception mandates and religious freedom acts: the right and wrong of Rick Santorum

posted at 9:55 pm on February 16, 2012 by

When the Obama Administration announced new rules requiring all employers, including religious organizations, to provide health insurance plans that included contraception coverage, I really wondered if he had just given up and was now intentionally trying to piss people off. I knew nobody on the right would be happy with it, and predicted that quite a few on the left would wonder what he was thinking. It was a foregone conclusion, however, that Rick Santorum would leap onto this like a starving jaguar with a t-bone. Now, I’ve made my qualms with Rick Santorum well known on this site, but this is one case where I strongly agreed with him, and not solely based on the principle of religious freedom.

While I do believe that this case does, in fact, infringe on the rights of religious organizations whose employees and employers oppose contraception on religious grounds, I also oppose the notion purely from an employers’ rights standpoint. I see no reason why any employer should be forced to provide health insurance plans including contraception coverage, or, for that matter, health insurance at all. If they can’t afford it, or can’t afford a plan that satisfies their wants for their employees, the government should not be forcing them to do so. That’s one of the arguments at the heart of the opposition to ObamaCare.

However, I also apply my philosophy to what I see as other infringements on the freedoms of employers. One of those is the Workplace Religious Freedom Act. It’s a bipartisan bill that has been floating around Congress now for several years. Its intent is to address the supposed problem of employers refusing to make significant accommodations for those with requests based on their religious observances or tenets. Some of these instances include men not being allowed to have beards at work, or insufficient rescheduling efforts to make it possible for an employee to take time off to attend to a holy day of some sort. Many of these claims have been taken to court, and often a judgment was found for the employer. The way things are now, employers are only required to make allowances for the religious beliefs of their employees if those allowances incur only a minimal cost to the employer. Under the WRFA, employers would have to now prove a “significant difficulty” to the courts, broadening the rules such that employers are now on the defensive.

A huge amount of religious organizations of all types have supported the bill, while civil rights groups like the ACLU have opposed it. I fall on the side of the latter. To me, the situation is very similar to the contraception mandate. With WRFA, you have the government forcing an employer to take on a cost in order to cater to what lawmakers want their employees to have, without taking into account the rights of the employers. With the contraception mandate, the situation is the same. There are a number of differences, obviously.

The difference that sticks out most to me, however, is that Rick Santorum opposes the contraception mandate…and introduced the Workplace Religious Freedom Act. I consider both to be infringements on the rights of employers…both to be cases of big government overreach. It almost makes me think that Santorum is more concerned with keeping those with his religious beliefs happy than he is with preserving the freedoms of private businesses.

Then again, maybe I’m thinking that because I’m not a “traditional conservative“.

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Then again, maybe I’m thinking that because I’m not a “traditional conservative“.

You’re a constitutional conservative, Maddy. While my distaste for Rick Santorum is more qualified than yours, you and I agree on far more than we disagree on.

gryphon202 on February 16, 2012 at 10:10 PM

I never knew this until I actually started working with firms with large numbers of employees in India… they have a six day working week and they are rather proud of the work ethic that goes with that. But, given the nature of the religious plurality there, and the polytheism that is prevalent, they end up having religious holidays just about every week and it really is hard to keep up with.

Until two years ago part of my professional life involved working on selecting and securing benefits for my client employees including health care for my clients along with other risk & treasury management services. I think having the broadest range of health services available to employees is a good thing. Do you really want your employer knowing what medical services you are receiving and being able to object if you are getting fertility treatment, having a vasectomy, or have an IUD or taking a pill to keep you sane and comfortable during your period, avoiding pregnancy because of an existing medical condition, needing a pill for a hard on, or fertility treatment to have a child? I don’t really want to police that sort of thing for employees… My clients (big employers) don’t either.

It is established law that you can’t fire a female for getting pregnant even though it costs employers more. The bottom line impact to the employer is irrelevant in that case even though we all know it costs more with maternity leave and the additional costs and health risks associated with pregnancy.. And YES, pregnancy is a medical condition even if it is not an illness. Ask any doctor or husband for that matter.

I think we are better off for having women in the workplace and accepting the inherent additional cost because we know that it is for the common good and broadly pro family. I have posted in several places recently that actuarial evidence(disciplined forecasting) suggests that the cost of providing contraception is minute (+0.5%) and there is the hard real world evidence over the last decade that providing these contraceptive services saves considerable money where the state is on the hook for medical care resulting from state and federal legislation (Medicaid in states with the same mandate being discussed here). I understand that some reject medicaid period but since we have it and are paying for it…

Time and time again when Obamacare was being discussed conservatives argued strenuously that decisions about health care should, as much as possible, be between Dr and patient and that having some panel deciding the details of that care was unacceptable yet just a few years later we find ourselves arguing that it is up to the employer to determine what form that cover should take in detail. I have worked for some well known firms and they all offered this kind of cover for sound economic reasons along with being attractive to employees.

Providing the broadest cover provides the broadest choice for the patient. Yes, there are some employers who will require opt outs from this type of cover for reasons of religious conscience and I am confident that we can arrive at a sensible solution/accommodation/or all-American compromise to this issue. Employers are not forced to provide medical cover but any cover they provide does need to be consistent and compliant with existing laws beyond the first amendment we all cherish. I would urge anyone interested to look at the court and EEOC rulings on this subject in detail because it is complicated.

Then again, maybe I’m thinking that because I’m not a “traditional conservative“.

Outside of fiscal prudence and being a responsible corporate and individual citizen what is a ‘traditional conservative’ anyway? As conservatives, our mission is to distill the truth out of competing rights, economic ideas, and ethics to produce as free, affluent, and secure a society as we possibly can while staying true to our Republic’s existing values. Despite the hyperbolic muck being thrown liberally during this arduous campaign I would hope that most here at hot air can agree on that while still holding a variety of positions on various issues.

I am open minded as to what the best approach is. Reflexive opposition to a policy because Obama supports isn’t conservative and we can do better than playing into what I think is a carefully laid political trap in an election season (perhaps Mr Sullivan was making a valid point?). I am sorry for rambling on this… I could have just stuck with the Indian example and said that WFRA is stupid but I’m enjoying a late night drink and meditation on these matters.

lexhamfox on February 17, 2012 at 3:47 AM

I am open minded as to what the best approach is. Reflexive opposition to a policy because Obama supports isn’t conservative and we can do better than playing into what I think is a carefully laid political trap in an election season (perhaps Mr Sullivan was making a valid point?). I am sorry for rambling on this… I could have just stuck with the Indian example and said that WFRA is stupid but I’m enjoying a late night drink and meditation on these matters.

lexhamfox on February 17, 2012 at 3:47 AM

How about this, Lex? FOLLOW THE CONSTITUTION. What if it’s not in the constitution? Then it’s not constitutional and the federal government can’t do it. Not shouldn’t, but can’t.

gryphon202 on February 17, 2012 at 11:01 AM

It almost makes me think that Santorum is more concerned with keeping those with his religious beliefs happy than he is with preserving the freedoms of private businesses.

Interesting, isn’t it? Good catch, MC…equally good article. Thanks for keeping us on our toes.

(Forwarding this to dad who is slightly creeped out by Santorum.)

Bee on February 17, 2012 at 11:12 AM

lexhamfox on February 17, 2012 at 3:47 AM

Very interesting. Your company wants to give its employees Cadillac health care coverage, and your company’s owners do not have any religious objections to any procedures. Good for them.

None of what you wrote actually applies to religious outfits, though, because they DO have religious objections, and have a 1st amendment right to them, and the RFRA law backing them up on a federal level.

cptacek on February 17, 2012 at 12:07 PM