Republicans Are in Danger of Losing the Contraceptive Fight

What the GOP needs to explain that is the Obama contraceptive mandate that is trying to force beliefs on everyone else.

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The Obama mandate requiring unreproductive heath services to be made available to workers as part of any employer-provided health insurance plan has put the Nannystate squarely at odds with America's time-honored respect for religious liberty.

President Obama's mandate covers religious institutions, including those operated by the Catholic Church—which has stood firm against the new law. In the face of its opposition to the new rule—the Church does not, as a matter of doctrine, endorse artificial birth control—Obama has tried to "split the baby" and push the responsibility for making such services available onto the insurance companies themselves, supposedly freeing up the Church to obey the dictates of its conscience.

In fact it does no such thing as, in the first place, the mandate was allowed to go into effect even as the idea of a compromise was being floated and, in the second place, many of these institutions are self-insuring, meaning that the responsibility to provide the services remains within the confines of the Church itself.

[See a collection of political cartoons on the Catholic contraception controversy.]

It's a clear case of overreach on Obama's part, one that smacks of making the Church—or any faith institution—subordinate to the dictates of the civil authorities, which should make the issue a winner for the president's political opponents. Unfortunately for the Republicans, they've allowed the discussion to be reframed as a matter of access to birth control rather than one of religious freedom.

Too many Americans have been left with the impression that this is merely a battle over those kinds of over-the-counter items that are routinely found in medicine cabinets and night tables all over the country. What they haven't talked about enough is that it also includes sterilization, the availability of abortion-inducing drugs, and other forms of birth control that are not nearly as common or widely accepted. It doesn't help that "the moralizing wing" of the GOP cannot seem to raise the issue without appearing to hector the electorate, preaching morality rather than talking about individual liberty—especially when, as it seems to be the case, the law is so firmly on their side.

Within the last week a federal court in Washington state, which is not exactly a hotbed of conservatism, struck down a state law requiring pharmacists to dispense the morning-after pill even when doing so would violate their religious beliefs.

[Read the U.S. News debate: Should Catholic and Other Religious Institutions Have to Cover Birth Control?]

The court found, not surprisingly to those who follow religious freedom issues, that the law violates the First Amendment's guarantee of religious freedom.

The decision, said Luke Goodrich, the deputy national litigation director for the Beckett Fund for Religious Liberty, "sends a very clear message: No individual can be forced out of her profession solely because of her religious beliefs."

The Becket Fund, a nonprofit, public interest law firm working to protect the free expression of all religious traditions, represented the plaintiffs in the case, a family-owned pharmacy and two pharmacists who said that being forced by the state to dispense the so-called "morning-after pill" or the so-called "week-after pill" would violate their religious beliefs.

In 2007, the Washington State Board of Pharmacy passed new regulations making it illegal to refer patients to neighboring pharmacies for reasons of conscience, despite allowing them to refer patients elsewhere for a wide variety of business, economic, or convenience reasons.  Because of the new regulations, one of the plaintiffs lost her job, another was told she would have to transfer to another state, and the pharmacy owners faced repeated investigations and threats of punishment from state board that had issued the rule.

[Read Nancy Pfotenhauer: Lessons From Barack Obama's Catholic Betrayal]

"The Board of Pharmacy's 2007 rules are not neutral, and they are not generally applicable," the court explained. "They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted."

What the GOP needs to do, in order to get back on the winning side of the issue, is to carefully explain that it is in fact the proponents of the now-voided Washington state regulation and the Obama contraceptive mandate who are trying to force their beliefs on everyone else, not the opponents. It's an easy argument to make as long as the commitment to remain disciplined on the messaging points is there. Moreover, this is just the first example of the many kinds of disruptions and disorientations that the new Obamacare law is certain to produce in the American healthcare system. Unelected bureaucrats making decisions about what must be offered and what must be denied regardless of the beliefs or needs of the American people will, under Obamacare, soon be the norm.

  • See a collection of political cartoons on healthcare.
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