Hooray for Liberty: The Church Has Lost the Contraception Fight

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Let's get this clear, mandated birth control coverage is not an outright attack on religious freedom -- and it is not unprecedented either. 

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Updated 1:05 p.m. 2/15/12

"It's not about contraception... It's about freedom of religion," Rick Santorum declared last week.

Santorum's point is clear: He opposes laws requiring insurers to provide contraceptive coverage not because he opposes contraception ("it's not about contraception"), but because he favors freedom and liberty. Or so he says.

I favor freedom and liberty too, and sympathize with religious organizations that resist laws requiring them to violate their basic beliefs (especially when their demands for exemptions from public laws are not accompanied by demands for entitlements to public funds.) In fact, I empathize with freedom of conscience claims. I'm not religious, but I do have a conscience, which is regularly betrayed by the government I am required by the tax code to support. The torture of terror suspects, the refusal to afford them with due process, the inequities of the civilian criminal justice system (including but not limited to racism, capital punishment, and an abysmally inadequate indigent defense system) among other horrors, all regularly violate my conscience.

I'd like to think they also violate the conscience of the Catholic Bishops, even though the tax-exempt church and its affiliated charitable organizations are not forced to provide financial support for such abuses. But the bishops seem so much more agitated by the requirement that insurers provide women with contraceptive coverage. "By what authority does the president of the United States seek to impose this immoral policy," Bishop Thomas J. Tobin demanded. "This is the United States, not North Korea." In a sane, humane world, the Bishop would reserve language like this for the administration's "immoral, North-Korean" like policies empowering the president to summarily assassinate American citizens, or for the policies that enabled torture and evasion of accountability for its practitioners. In this world, the bishops reserve their outrage for a policy insuring access to contraceptive care, even when it exempts churches and their affiliated schools or charities.  

Fury over this policy has given way to hysteria. The Obama compromise exempting church affiliated nonprofits, as well as churches, from contraceptive care requirements is, according to Archbishop Thomas Wenski, an "overreaching and unprecedented incursion of state power into the realm of religious freedom and the rights of conscience." But the policy is no more a violation of religious liberty or freedom of conscience than laws exempting religious organizations from taxation that effectively require me to subsidize churches that regularly violate my conscience (as well as their own stated ideals).

The Obama policy is also not "unprecedented." As Julie Rovner pointed out in an NPR report, "employers have pretty much been required to provide contraceptive coverage as part of their health plans since December 2000. That's when the federal Equal Employment Opportunity Commission ruled that failure to provide such coverage violates the 1978 Pregnancy Discrimination Act."

You'd have to ask the bishops why they weren't screaming about contraceptive coverage a decade ago. Maybe they were preoccupied by their child abuse scandal. Maybe they were accustomed to losing public battles over contraception. Decades ago, in 1965, the Supreme Court struck down the criminal convictions of Planned Parenthood staff who distributed contraceptives to married couples. In 1972, the Court extended contraceptive rights to unmarried people.

I don't begrudge the church its efforts to re-engage the public in a debate about the morality of contraception. But I do wish it would keep specious claims about religious freedom out of it. Of course, the church's opposition to contraception, among other articles of faith, is none of my business. Of course religious leaders have a right to speak and lobby against whatever they consider sinful. Of course they have a right to care more about the welfare of embryos than torture victims. But while the right to lobby is included in religious liberty, the right to lobby successfully is not. When the church fails to persuade Congress, the courts, or regulatory agencies to impose sectarian ideals on secular institutions, it fails to gain power but loses no liberty; the rest of us, however, might gain some.

Correction: This item originally included a quote reported in The New York Times that Santorum had said: "It's not about contraception... It's about freedom of liberty." That report was incorrect, and this item has been updated to reflect his actual statement, "It's not about contraception... It's about freedom of religion."

Image: AP Images

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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