The Obama administration has recently adopted a very narrow definition of religious exclusions in the Affordable Care Act, otherwise known as Obamacare. The effect of this is that ostensibly religious institutions such as Catholic hospitals and universities would be required, along with everyone else, to include coverage of birth control in their health insurance plans, even if they cite religious reasons why they would not want to. This move has several interesting legal, moral, and political implications.
A freer option:
When Barack Obama signed into law his signature health care reform bill, the United States retained one of the least government-based health care systems in the first world. Far from universal health care, there was not even a public option which would have provided optional government based medical insurance in competition with private insurance. Instead, it required individuals to purchase private insurance and then subsidizes that cost for lower income Americans.
The so called 'individual mandate', the part which requires people to purchase insurance, has since then been consistently attacked from many angles as an assault on individual freedom. It is being challenged at the court level (currently destined for a Supreme Court decision this summer) and has been a magnet for attacks from GOP presidential nominee candidates. This latest issue of denying religious exemptions to the birth control clauses in the individual mandate is being cast as one of overstepping religious freedoms.
It is thus worth recalling that the individual mandate is the less obtrusive, smaller government, more freedom based option. Most don't have a fundamental problem with the idea of government providing a service and taxing the population to pay for it. Having people spend money (in essence, a tax) on their choice of private insurance is just objectively less government interventionism; this is the exact reason why the individual mandate was originally crafted as the Republican alternative in the nineties and implemented by Mitt Romney in Massachusetts.
The only reason this feels somehow more intrusive is that it is outside of the normal tax and spend paradigm that we have become comfortable with. By giving us the choice it feels intuitively like a restriction of freedoms when those choices are limited (such as having all plans include birth control coverage) even if freedom would be even more limited if there was universal health care like there are in Canada and many other countries. The government could theoretically even provide just birth control for free (as China does) and this would hardly violate the religious freedoms of anyone.
Every one of us can find things we don't like about government decisions. There are things we wish our tax dollars were not spent on, or things we wish they were spent on. For the religious among us, the government may spend money and create rules that violate our religious inclinations. That is the nature of our social contract. What I take objection to is the idea that the healthcare bill is somehow a special and more extreme version of this that imposes a higher restrictions on freedom - and religious freedom in particular - than other aspects of government and, indeed, it is less invasive than the alternatives which could be modeled on widely supported programs like Medicare or Medicaid.
At the states level, this issue has already been decided. Some 28 states already mandate the inclusion of birth control in insurance plans, religious institutions or otherwise. Recent court cases in 2007 in New York and 2004 in California reaffirmed the right of the state to intervene in this way against Catholic institutions. The question is thus jurisdictional about the right of the federal government to so intervene. However, that question of the individual mandate at the federal level is already being taken up by the Supreme Court and the smart money bet in my view is that it will be allowed. There is nothing about the religious nature of it that makes this special, it is the same jurisdictional issue as the rest of the mandate and comes down to how widely one interprets the commerce clause in the constitution.
Religious freedoms has been consistently viewed as the individual freedom to practice and believe as one wishes. A decision that forced Catholics to use birth control, as silly as this example sounds, would not be allowed because that violates their religious freedoms to live their own life as they choose. However, that freedom usually plays second fiddle legally speaking when it comes to social interactions where another persons freedoms or well being is in question. That is, individual freedoms do not extent to being able to do whatever one wants to other people when in positions of power.
The classic example is gay rights (although black rights before it works just as well). If one disapproves of homosexuality - as many religious people do - they are still obliged not to discriminate on the basis of sexual orientation. Of course, in many states people can still be fired for the singular reason of being gay and this must change, but the point is that religious freedom can, and should, be curtailed when it comes to restricting the well being and freedom of others in a social interaction.
Catholic churches and universities are the epitome of a social institution. Many who attend these institutions are not Catholic and they are part of the larger fabric of society and as such can, and should, be regulated by the governments of society. Nobody should be able to force an individual to do anything personally, of course, but if something increases the health and well being of society (availability of birth control certainly being among these facets) then it is right to ensure that such policies are put in place. Just as it is right to ensure that religious based organizations like these don't discriminate based on sexual orientation even if this violates their personal beliefs.
This is bad politics:
Whatever one thinks about the legality or morality of the decision, I actually think it is very bad politics. If our lens is to get Obama reelected, it hurts him significantly. I fully support coverage of birth control but I think Obama should not have done this. The backlash against this has already been very strong. Some 80% of Catholic Bishops have written letters against this (liberals and moderates among them) which have been read to countless congregations comprising the nation's 70 million Catholics.
The main problem from a framing perspective is that it fits so nicely into the GOP image that Obama is waging some form of otherwise nonexistent war on religion, as ex-candidate Rick Perry put it. The Democrats have an enormous problem with religion and not making it seem that the default party of piety is the Republicans. A startling 20% of people at various times have thought Obama was a Muslim despite his numerous attempts that exceed that of previous presidents to express his Christian piety. The GOP is already using this issue extensively and Obama's campaign manager, David Axelrod, has hinted at a possible retraction.
That said, a new poll indicates 58% of Catholics approve of this policy, so perhaps it will not be a huge issue. I suspect, however, that their will be a silent minority who doesn't mind it and a very vocal minority who grabs the lions share of attention in casting this as an Obama attack on religious freedoms.
While it may seem that most are not going to personally object to this - 98% of Catholic women use birth control at some point in their lifetime and most Protestant sects have no qualms with birth control - I think there is a very significant sense among many religious people that freedom of religion, as they see it, should be maintained. It will be seen as an attack on religion, and many will oppose it for that reason even if they personally have no qualms with birth control. It is a bit ironic since my major theme of the Obama presidency has been that he should take strong, principled stands, and not capitulate to the right due to inflated worries over messaging. This time, however, with the elections coming and a relatively minor issue, I think it was the wrong time and the wrong way, politically, to go about it.
Widening the abortion culture war:
Part of what is so painful about the culture war over abortion is just how entrenched the battle is so that pragmatism simply does not factor in. Any advantage, any edge, that can be seen to fight abortion will occur even if it means sacrificing even a modicum of common sense as we have seen in several proposed state bills on abortion. It is asymmetric, but this is probably true of both sides. This birth control battle is not just about birth control, it is also about 'abortifacients' such as the Morning After pill which is deemed to be part of the abortion battleground and so will be vigorously opposed simply because of this.
However, the battle has thus far largely been constrained just to abortion. There is a very big risk, in my mind, that the right will try and reposition the battle to start including birth control in general. The image of the perfect Christian family with sex only during marriage and only for the purpose of children is, of course, a utopia with little resemblance to the overwhelming majority. However, many of the staunchest prolife advocates want to demonize birth control as also bad. Granted, this policy was pushed by Democrats on Catholics, and others, so perhaps it is unfair to say that it is the right doing the repositioning. However, I don't think this is close to the last time we hear about birth control.